United States ex rel. Harris v. McCann (558 F. Supp. 2d 826, 2008)

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge:

On January 24, 2007, Petitioner David Harris, by counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). On March 13, 2007, the Court granted Harris’ motion to dismiss his original habeas petition and accepted Harris’ pro se habeas petition. In response, Respondent filed a motion to dismiss certain claims as unexhausted after which Harris voluntarily dismissed his unexhausted claims. Before the Court is Harris’ petition for a writ of habeas corpus. For the following reasons, the Court grants Harris’ request for an evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2) regarding his ineffective assistance of counsel claim based on counsel’s failure to investigate and present mitigation evidence at the second stage of his capital sentencing hearing. The Court denies the remainder of Harris’ claims in his habeas petition.

BACKGROUND

Harris does not present clear and convincing evidence challenging the statement of facts as set forth in the Supreme Court of Illinois’ opinion affirming the judgment of the Circuit Court of Cook County, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); see also Daniels v. Knight, 476 F.3d 426, 434 (7th Cir.2007). The Court, therefore, adopts the underlying facts as set forth by the Supreme Court of Illinois in Harris’ direct appeal. See People v. Harris, 182 Ill.2d 114, 230 Ill.Dec. 957, 695 N.E.2d 447 (Ill. 1998) (“Hams I”). The Court begins with a brief recounting of the facts as determined by the Supreme Court of Illinois. See Easley v. Frey, 433 F.3d 969, 970 (7th Cir.2006).

I. Factual Background

At Harris’ jury trial, Bernice Chase, the widow of the victim, Clifford Chase, testified that her husband left the house around 8:40 p.m. on June 7,1993, to return a rented videotape. Mrs. Chase explained that her husband would sometimes stop to purchase milk at the Chatham Food Center in Chicago, Illinois, where he was killed. Theresa Barnes, who was 16-years-old at the time of the occurrence, testified at trial that she was at the Chat-ham Food Center around 9 p.m. on June 7, 1993. While she was using a pay telephone outside the store, Barnes heard the sound of a gunshot. She looked up and saw someone holding a gun after which she heard another shot. Barnes testified that the shot was fired at a car and that she saw the person inside the car slump over. Barnes further testified that the person who fired the shot got in the back seat of a Mercedes which then drove off. Barnes testified that she was standing about 20 to 25 feet away from the car when the shots were fired and that she got a good look at the gunman. On June 9, 1993, police officers showed Barnes a brochure of various Mercedes models, and Barnes selected one that matched the car she had seen. On June 15, 1993, Barnes viewed a photographic lineup and identified Petitioner David Harris as the person who had fired the shots. At trial, Barnes identified Harris as the gunman.

Theodore Traylor, who was with Harris on June 7, 1993, also testified at Harris’ jury trial. Traylor stated that on June 7, 1993, around 8:30 p.m., he was standing at 67th and Ada Streets in Chicago, Illinois, with Antoine Moore. At that time, some of Moore’s friends drove up in a grey Mercedes. In the car were Harris, Howard McClinton, and Demetrius Daniels. After these individuals talked to Moore, Moore told Traylor to get in the car and they would take him home. McClinton was driving and Moore sat in the front seat. Traylor testified that Daniels, Harris, and he sat in the back seat. According to Traylor, the four others talked about a carjacking movie they had seen.

Thereafter, McClinton saw some girls to whom he wanted to talk. McClinton pulled into a parking lot, but the girls did not want to talk to him. Then, McClinton said, “There go a jack move there.” According to Traylor, McClinton drove toward an elderly man who was leaving a grocery store. The man got in his car, and McClinton pulled the Mercedes near the man’s car. Traylor testified that McClinton handed Moore a gun and said, “jack him.” Moore got out of the Mercedes and tapped on the window of the victim’s car, but the man would not open the door. Moore got back in the Mercedes. Harris then jumped out of the car, pulled a gun from under his shirt, and fired two shots at the victim. Harris jumped back into the car, and the Mercedes drove away.

II. Procedural Background

On August 30, 1995, following a jury trial in the Circuit Court of Cook County, a jury convicted Harris of first degree murder and attempted armed robbery. (R. 33-1, Resp.’s Rule 5 Exs., Ex. A.) Harris waived a jury for purposes of his capital sentencing hearing. (Id.) After the sentencing hearing, the trial judge sentenced Harris to the death penalty. (Id.) Because Harris was sentenced to death, he directly appealed his conviction and sentence to the Supreme Court of Illinois. On direct appeal, Harris raised the following issues: (1) trial counsel was ineffective for failing to investigate or present mitigation evidence at the second stage of his capital sentencing hearing; (2) trial counsel was ineffective for conceding Harris’ death penalty eligibility, especially because the State did not specify a relevant aggravating factor and Harris never consented on the record to the concession; (3) no statutory aggravating factor for death penalty eligibility was explicitly found beyond a reasonable doubt; (4) the State failed to prove beyond a reasonable doubt that Harris took a substantial step toward committing armed robbery, multiple convictions were improperly carved from the same act, and eligibility for the death penalty was derived from an improper double enhancement; (5) the State erred in introducing testimony that the vehicle in which Harris was in on the night of the murder was stolen; (6) trial counsel was ineffective for failing to move to bar evidence of other crimes or to object to their admission and for eliciting evidence that there was a bloodstain in the vehicle; (7) trial counsel was ineffective for falling to move to suppress an allegedly suggestive photographic lineup, and Harris was denied due process because the State lost the lineup photographs prior to trial; and (8) Harris was denied due process and a fair trial due to the admission of inculpatory statements that were obtained in violation of the Illinois Habeas Corpus Act and the Cook County Jail Act. (Exs. A-C.)

The Supreme Court of Illinois affirmed Harris’ conviction and sentence on direct appeal. The Supreme Court concluded that the State proved beyond a reasonable doubt that Harris took a substantial step toward armed robbery because Harris and the other parties discussed the carjacking and selected a victim, that separate convictions for murder and attempted armed robbery were appropriate based on the evidence, and that there was no improper double enhancement because the two convictions were based on separate acts. The Supreme Court of Illinois further concluded that the admission of evidence that a stolen vehicle was used in the crimes was not plain error, and Harris was not prejudiced by counsel’s failure to object to this evidence and eliciting evidence of the bloodstain. In addition, the Supreme Court of Illinois concluded that Harris was not prejudiced by his counsel’s failure to seek suppression of the lineup identification because the eyewitness trial testimony was not based on the photographic lineup and there was other overwhelming evidence of Harris’ guilt. The Supreme Court also concluded that Harris did not show that the State acted in bad faith in failing to preserve the lineup photographs. Further, the Supreme Court concluded that suppression of Harris’ statements would not have been the appropriate remedy for any violation of the Illinois Habeas Corpus Act or the County Jail Act. Finally, the Illinois court did not examine whether counsel was constitutionally ineffective for failing to present and investigate mitigation evidence at Harris’ capital sentencing hearing because the record before it was insufficient to make this analysis. See People v. Harris, 182 Ill.2d 114, 230 Ill. Dec. 957, 695 N.E.2d 447 (Ill.1998).

Thereafter, Harris filed a petition for post-conviction relief pursuant to 725 ILCS 5/122-1, et seq., alleging that: (1) his trial counsel was ineffective for failing to investigate or produce mitigation evidence at the capital sentencing hearing; and (2) trial counsel was ineffective for failing to investigate and produce exculpatory witnesses or evidence. (Exs. D-F.) On appeal, the Supreme Court of Illinois concluded that Harris’ trial counsel was not ineffective for failing to investigate and present alibi evidence and that Harris did not show prejudice. See People v. Harris, 206 Ill.2d 293, 306, 276 Ill.Dec. 286, 794 N.E.2d 181 (Ill.2002) (“Harris 17”). On the other hand, after considering the mitigation evidence and affidavits provided, the Supreme Court of Illinois concluded that Harris made a substantial showing that trial counsel was ineffective for failing to investigate and produce mitigation evidence at his capital sentencing hearing. Id. at 304-06, 276 Ill.Dec. 286, 794 N.E.2d 181. The Supreme Court thus remanded Harris’ case to the Circuit Court of Cook County for an evidentiary hearing on this issue.

Before the Circuit Court held the evi-dentiary hearing, former Governor George Ryan commuted Harris’ death sentence to one of natural life imprisonment without the possibility of parole as part of the governor’s blanket commutation of all Illinois death sentences. See People v. Harris, 357 Ill.App.3d 330, 332, 293 Ill.Dec. 719, 828 N.E.2d 1217 (Ill.App.Ct.2005) (“Harris III”). Thereafter, the Illinois post-conviction trial court dismissed Harris’ post conviction petition as moot because Harris’ claims were based on his death sentence. Id. Harris appealed. (Exs. G-I.) The Illinois Appellate Court, First District, held that the governor’s commutation converted Harris’ “judicially imposed sentence” into “an essentially un-reviewable executively imposed one.” Harris III, 357 Ill.App.3d at 333-36, 293

Ill.Dec. 719, 828 N.E.2d 1217. The appellate court also concluded that Harris’ request for clemency barred him from seeking a lower judicial sentence. Id. at 336, 293 Ill.Dec. 719, 828 N.E.2d 1217. In his petition for leave to appeal (“PLA”) to the Supreme Court of Illinois, Harris raised his ineffective assistance of counsel claim about the mitigating evidence at his death sentence hearing arguing that the issue was not moot. (Ex. D). The Supreme Court of Illinois denied his PLA on January 25, 2006. (Ex. E.)

On January 24, 2007, Harris filed a counseled habeas corpus petition pursuant to 28 U.S.C. § 2254(d)(1). Subsequently, in March 2007, the Court allowed Harris to voluntarily dismiss his counseled habeas petition and substitute his own pro se ha-beas petition, although counsel still represents Harris. Reviewing Harris’ pro se habeas petition liberally, see Benders v. Bellows & Bellows, 515 F.3d 757, 767 (7th Cir.2008), Harris raises the following ineffective assistance of trial counsel claims: (1) trial counsel was ineffective for failing to investigate and present mitigating evidence at his capital sentencing hearing; (2) trial counsel was ineffective for conceding Harris’ eligibility for the death penalty at his capital sentencing hearing; (3) trial counsel was ineffective for failing to move to bar evidence of other crimes evidence and evidence of a bloodstain in the vehicle Harris rode in on the night of the murder; (4) trial counsel was ineffective for failing to move to suppress a photographic lineup; and (5) trial counsel was ineffective for failing to interview or call available alibi witnesses. Harris’ other habeas claims, include: (1) the Supreme Court of Illinois erred in determining that violations of the Illinois Habeas Corpus Act or the Cook County Jail Act did not warrant suppression of Harris’ inculpatory statements; (2) he was denied his right to a fair trial through the State’s introduction of testimony that the vehicle Harris rode in on the night of the murder was stolen; (3) the State failed to prove beyond a reasonable doubt that he had committed attempted armed robbery and that the attempted armed robbery and first degree murder convictions were improperly carved from the same physical act, thus his death penalty eligibility was derived from an improper double enhancement; and (4) he was denied due process of law because the State lost lineup photographs. (R. 13-1, Pro Se Habeas Pet.)

LEGAL STANDARDS

I. Habeas Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), habeas relief cannot be granted unless the state court’s decision was contrary to, or an unreasonable application of federal law clearly established by the Supreme Court. See Calloway v. Montgomery, 512 F.3d 940, 943 (7th Cir.2008); see also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495,146 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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.” Id. at 405, 120 S.Ct. 1495; Calloway, 512 F.3d at 943.

Under the “unreasonable application” prong of the AEDPA standard, 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. Williams, 529 U.S. at 407, 120 S.Ct. 1495. “This reasonableness determination is quite deferential, such that a state decision may stand as long as it is objectively reasonable, even if the reviewing court determines it to be substantively incorrect.” Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir.2005); see also Williams, 529 U.S. at 410, 120 S.Ct. 1495 (an unreasonable application of federal law is different from an incorrect application of federal law) (emphasis in original). To be considered objectively unreasonable, a state court’s decision must lie “well outside the boundaries of permissible differences of opinion.” Gilbert v. Merchant, 488 F.3d 780, 790 (7th Cir.2007) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.2002)). Put differently, to be reasonable, a state court’s decision must be “at least minimally consistent with facts and circumstances of the case.” Simpson v. Battaglia, 458 F.3d 585, 592 (7th Cir.2006).

II. Procedural Default

Before bringing a habeas claim in federal court, a petitioner must exhaust all remedies available to him in state court. Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir.2005). More specifically, the “petitioner must establish that he fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge.” Id.; see also O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). “Fair presentment in turn requires the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings.” Simpson, 458 F.3d at 593 (citation omitted). “A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim.” Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir.2004). In addition, a habeas claim is procedurally defaulted when the state court did not address the petitioner’s federal claim because the petitioner failed to meet independent and adequate state court’s procedural requirements. Stewart v. Smith, 536 U.S. 856, 860-61, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002); see also Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

A habeas petitioner may overcome procedural default by demonstrating cause for the default and actual prejudice or by showing that the Court’s failure to consider the claim would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546. The Supreme Court defines cause sufficient to excuse procedural default as “some objective factor external to the defense” which prevents a petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A fundamental miscarriage of justice occurs when a petitioner establishes that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 496, 106 S.Ct. 2639.

III. Habeas Claims Related to Harris’ Death Sentence

On January 11, 2003, former Illinois Governor George Ryan commuted Harris’ death sentence to natural life in prison without the possibility of parole as part of the governor’s blanket commutation of all Illinois death sentences. As discussed above, the Illinois Appellate Court concluded that Governor Ryan’s commutation of Harris’ sentence effectively removed his judicially imposed death sentence and replaced it with an essentially unreviewable executively imposed one. See People v. Harris, 357 Ill.App.3d 330, 333, 293 Ill. Dec. 719, 828 N.E.2d 1217 (Ill.App.Ct. 2005). Specifically, the Illinois Appellate Court reasoned that because Harris “was no longer serving a judicially imposed sentence, the separation of powers constitutionally divided between the executive and judicial branches barred us from meddling with the terms and conditions of the defendant’s newly commuted sentence, rendering moot the sentencing issue he had raised on appeal.” Id. Based on the Illinois Appellate Court’s determination, Respondent argues that Harris’ capital sentencing claims in his habeas petition are moot.

The Seventh Circuit, however, has held that even when the Governor has commuted a habeas petitioner’s death sentence to natural life imprisonment without the possibility of parole, the petitioner’s sentencing claims are not moot because the statutory minimum sentence for first degree murder under Illinois law is 20 years and not natural life imprisonment. See Simpson, 458 F.3d at 595 (citing 720 ILCS 5/9 — 1(b)(6); 730 ILCS 5/5-8-1(a)(1)(a)); see also Madej v. Briley, 371 F.3d 898, 899 (7th Cir.2004) (“Constitution supersedes any incompatible state principles.”). As the Madej decision explained, “[a] full remedy for the constitutional shortcoming at the original sentencing hearing entails allowing Madej to seek that lower sentence now.” Id. at 899. In short, Harris’ federal constitutional claims concerning his capital sentencing hearing are not moot based on the Supremacy Clause of the United States Constitution.

Based on the Seventh Circuit decisions in Simpson and Madej, the Court also rejects Respondent’s argument that Harris has “forfeited” his claim of ineffective assistance of sentencing counsel by seeking executive clemency from the Governor of Illinois while his post conviction challenge to his death sentence was still pending. The Simpson court has already rejected this argument. See Simpson, 458 F.3d at 596 (“Simpson’s clemency bid had no discernable substantive effect because Governor Ryan commuted death sentences whether or not commutation was sought”). Moreover, Harris has exhausted his state court remedies and the Illinois Appellate Court did not deny his claim based on an independent and adequate state court procedural ground as Respondent suggests. See Stewart, 536 U.S. at 860-61, 122 S.Ct. 2578; Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Thus, the Court will address Harris’ capital sentencing claims.

ANALYSIS

I. Ineffective Assistance of Counsel

Harris brings five separate bases for his ineffective assistance of trial counsel claim. The clearly established Supreme Court law that applies to Harris’ ineffective assistance of counsel claim is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish constitutionally ineffective assistance of counsel, Harris must show that (1) his attorney’s performance “fell below an objective standard of reasonableness,” id. at 688, 104 S.Ct. 2052, and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052 (“a reasonable probability is a probability sufficient to undermine confidence in the outcome”); see also Suggs v. United States, 513 F.3d 675, 678 (7th Cir.2008). If Harris fails to make a proper showing under one of the Strickland prongs, the Court need not consider the other. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Amerson v. Farrey, 492 F.3d 848, 851 (7th Cir.2007).

A. Failure to Investigate and Present Mitigation Evidence at Capital Sentencing

Harris first maintains that his trial counsel was constitutionally ineffective because counsel failed to investigate and present mitigating evidence at the second stage of his capital sentencing hearing. As discussed, in reviewing the Circuit Court’s denial of Harris’ post-conviction petition, the Supreme Court of Illinois concluded that Harris made a substantial showing that his trial counsel was ineffective for failing to investigate and produce mitigation evidence at his death sentencing hearing. Consequently, the Supreme Court of Illinois remanded Harris’ case to the Circuit Court of Cook County for an evidentiary hearing on this issue. That evidentiary hearing never occurred because after Governor Ryan commuted Harris’ death sentence to natural life imprisonment without the possibility of parole, the Illinois Appellate Court concluded that Harris’ sentencing claim based on his counsel’s failure to investigate and present mitigation evidence was moot. See Harris III, 357 Ill.App.3d at 336-37, 293 Ill.Dec. 719, 828 N.E.2d 1217. As discussed, the Seventh Circuit’s decisions in Simpson and Madej teach otherwise. See Simpson, 458 F.3d at 595; Madej, 371 F.3d at 899. The Court will thus address Harris’ habeas claim based on his attorney’s ineffective assistance of counsel at his capital sentencing hearing.

In his post-conviction appeal, Harris argued that if his trial counsel, Dennis Do-herty, had reviewed the pretrial investigation reports and performed the most minimal investigation into mitigation evidence, Doherty would have discovered that Harris suffered from severe depression, dependant personality disorder, and organic brain disorder. See Hams II, 206 Ill.2d at 320, 276 Ill.Dec. 286, 794 N.E.2d 181. Harris also argued that “Doherty failed to investigate and present evidence concerning his personal and family history, including the history of drug and alcohol abuse, emotional neglect and possible physical abuse.” Id. Furthermore, Harris asserted “that Doherty failed to present evidence regarding his rehabilitative potential to rebut the State’s evidence of future dangerousness.” Id. In support of his arguments, Harris relied on Doherty’s affidavit, which states in relevant part:

I never seriously considered that his case was a death penalty case in the sense that it ever occurred to me that a death sentence might actually be imposed.

* * *

I never investigated David’s case to develop evidence for purposes of a capital sentencing hearing. My failure to investigate was not based on facts that led me to conclude no investigation was necessary, to the contrary, my failure to investigate was based entirely upon my own feeling that David’s case didn’t merit imposition of the death penalty, and that I hadn’t received any “signals” to the contrary. In short, my failure to investigate this aspect of David’s case was neither a strategic nor a tactical decision.

Id.

1. Performance Prong

With respect to the Strickland performance prong, a court’s review of an “attorney’s performance is ‘highly deferential’ and ‘reflects 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.’ ” Daniels v. Knight, 476 F.3d 426, 434 (7th Cir.2007) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); see also Johnson v. Loftus, 518 F.3d 453, 457 (7th Cir.2008). In the context of death penalty cases, courts look to the ABA Standards for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases for the prevailing norms of practice in assessing counsel’s reasonable professional judgment. See Canaan v. McBride, 395 F.3d 376, 384 (7th Cir.2005) (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “The ABA Guidelines provide that investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’ ” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (emphasis in original) (citation omitted); see also Strickland, 466 U.S. at 688, 104 S.Ct. 2052 (ABA standards are guides to determine what is reasonable).

When analyzing whether counsel’s performance “fell below an objective standard of reasonableness,” the Supreme Court of Illinois properly identified the relevant, clearly established United States Supreme Court authority under Strickland. See Williams v. Taylor, 529 U.S. at 390, 120 S.Ct. 1495. In addition, the Illinois court reasonably applied Strickland to the facts of this case. More specifically, based on Doherty’s post-conviction affidavit and other evidence in the record, the Supreme Court of Illinois discussed Do-herty’s performance as follows:

[I]n this case defendant argues that Do-herty was woefully unprepared for the capital sentencing hearing because he did not consider defendant a serious candidate for the death penalty. Do-herty’s failure to present evidence in mitigation was not a strategic choice, but rather an omission due to his own lack of preparation. Doherty’s failure to investigate and present evidence in mitigation produced an unreliable and unjust result. He failed to investigate potential sources of mitigation clearly contained in the pretrial investigation report. The pretrial report indicates that defendant was treated for depression in 1994 and prescribed psychotropic medicine for a period of five months before he refused to continue treatment. The pretrial report states that defendant consumed a pint of hard liquor and a half ounce of marijuana on a weekly basis. Doherty failed to make even initial inquiries into these matters. Furthermore, although defendant denied a history of physical or emotional abuse, the pretrial report indicated that he described his childhood as “rough.” Again, Doherty never investigated or contacted individuals regarding this potential mitigating evidence.

Harris II, 206 Ill.2d at 322, 276 Ill.Dec. 286, 794 N.E.2d 181 (internal citations omitted).

In sum, the Supreme Court of Illinois’ conclusion that Doherty’s performance fell below an objective standard of reasonableness was not contrary to or an unreasonable application of Strickland. See Gilbert, 488 F.3d at 790 (state court decision must be “well outside the boundaries of permissible differences of opinion” to be objectively unreasonable); Simpson, 458 F.3d at 592 (state court’s decision must be “at least minimally consistent with facts and circumstances of the case.”). Specifically, Doherty admitted that he did not investigate Harris’ case for purposes of the capital sentencing hearing because he had a “feeling” that Harris’ case did not merit the death penalty. See Wiggins, 539 U.S. at 524, 123 S.Ct. 2527. Doherty’s admission establishes that his actions were not the result of his reasonable professional judgment, but instead were well outside of the wide range of professionally competent assistance and in contradiction of the prevailing norms of practice for death penalty cases. See Wiggins, 539 U.S. at 534, 123 S.Ct. 2527; Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In other words, Doherty’s omissions were not due to any strategic choices, but instead were based on his subjective feeling that Harris’ case was not one in which the death penalty should be imposed and that he did not get a “signal” from the judge or prosecutor that this case warranted the death penalty. Although the Supreme Court of Illinois concluded that Doherty’s performance fell below an objective standard of reasonableness — and its decision was a reasonable application of Strickland — the Illinois court remanded this issue for an evidentiary hearing as discussed in further detail below. The Court first turns to the Strickland prejudice prong before discussing the need for an evidentiary hearing.

2. Prejudice Prong

To establish prejudice, “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. In discussing whether Harris was prejudiced by counsel’s deficient performance, the Supreme Court of Illinois reasoned:

In this case, evidence regarding defendant’s depression, dependent personality disorder, organic brain damage and social background may have explained the aggravating evidence presented by the State and, more importantly, defendant’s actions at the time of the crime. Particularly, the post-conviction exhibits suggest that defendant suffers from dependent personality disorder. Several individuals, including defendant’s former academic advisor and one expert concluded that defendant is a “follower not a leader,” “easily led by his peers,” “unwilling to make decisions without assistance from others,” “in constant need of approval,” “insecure,” “an unwise follower,” and “suffers from massive dependency.”

Additionally, a review of the sentencing transcript reveals that the trial judge was influenced by the lack of mitigation evidence:

“I started out with the feeling that I would attempt to look at everything in the best eye possible to find something mitigating in Mr. David Harris.”

I was listening to the arguments of the defense saying, you know that David had this problem where three people die d in his family, and then he had no role models * * *.

* * *

I am suppose to think that David Harris acted this way only because somebody else told him, I don’t think so. I think that David Harris acted on his own volition.

These comments clearly reveal a connection between the judge’s imposition of the death penalty and Doherty’s failure to present any mitigating evidence. We cannot say that the mitigation evidence contained in the post-conviction record could not have altered the determination that there was no evidence that mitigated against the imposition of the death sentence. Doherty’s deficient performance, and the weight of the missing evidence in mitigation, make a substantial showing that Doherty’s performance constituted ineffective assistance of counsel. Doherty’s failure to investigate and present evidence in mitigation may have so undermined the proper function of the adversarial system as to have produced an unjust result and raises serious doubts regarding the propriety of defendant’s sentence.

Harris II, 206 Ill.2d at 323-24, 276 Ill.Dec. 286, 794 N.E.2d 181 (internal citations omitted).

In its Strickland prejudice prong analysis, the Supreme Court of Illinois stopped short of concluding that after balancing the aggravating and mitigating factors, the death penalty was not warranted in this matter. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052; see also Williams, 529 U.S. at 397-98, 120 S.Ct. 1495. Instead, the Supreme Court of Illinois reversed the Circuit Court’s dismissal of Harris post-conviction petition and remanded the matter for an evidentiary hearing concerning this claim. The Supreme Court of Illinois explained its decision to remand for an evidentiary hearing as follows:

Defendant requests that this court remand the matter for a new sentencing hearing, rather than remand the matter to the circuit court for an evidentiary hearing. Although the record clearly makes a showing that Doherty’s performance was deficient and that his performance, or lack thereof, prejudiced defendant, we decline to grant a new sentencing hearing absent an evidentia-ry hearing. The circuit court, in the context of an evidentiary hearing, offers the more appropriate forum to address Doherty’s alleged ineffective representation. This is true because, although there is no evidence that Doherty willfully committed reversible error, a court should be critical of conduct designed to disrupt the appropriate administration of justice. Thus, while counsel is obligated to admit that he or she negligently represented a defendant, his or her obligation does not end with the filing of an affidavit. The State has the right to attack the factual basis of the affidavit, and one method to attack the credibility of an affidavit is through cross-examination during the course of an evidentiary hearing. This ensures that counsel, in their zeal to advocate for their client, do not betray their obligation to the court. For this reason, we decline to grant defendant a new sentencing hearing absent an evidentiary hearing.

Harris II, 206 Ill.2d at 324, 276 Ill.Dec. 286, 794 N.E.2d 181. Based on the Illinois court’s remand for an evidentiary hearing, both parties argue that if the Court cannot address this claim on the record before it, the Court should hold an evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2). The Court agrees.

3. Evidentiary hearing

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 v. Taylor, 529 U.S. 420, 432-34, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); Holmes v. Buss, 506 F.3d 576, 580 (7th Cir.2007) (“only in rare cases is the district court required to conduct its own evidentiary hearing”). Section 2254(e)(2) provides that, if a habeas petitioner failed to develop a factual basis for a claim in state court, the federal habeas court “shall not hold an evidentiary hearing on the claim” unless the habeas petitioner can show that:

(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 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).

“Under the opening clause of § 2254(e)(2),.a failure to develop the factual-basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Dalton v. Battaglia, 402 F.3d 729, 736 (7th Cir.2005) (citations and internal quotations omitted). If Harris “establishes that he was diligent in his attempts to develop the factual record in the state court, he does not have to satisfy the remaining provisions of § 2254(e)(2) in order to obtain an evidentiary hearing.” Id. (citation omitted); see also Price v. Thunner, 514 F.3d 729, 733-34 (7th Cir.2008). In other words, if Harris can demonstrate that the failure to develop a factual record in the state court was not his fault, the strict standards under Section 2254(e)(2) do not apply. See Williams, 529 U.S. at 432-34, 120 S.Ct. 1479.

Here, the Respondent concedes that Harris was unable to develop the factual basis of his ineffective assistance of counsel claim in state court because of intervening circumstances, namely, that Governor Ryan commuted his death sentence to natural life and that the state court mooted his capital sentencing claims. As such, to establish that an evidentiary hearing is warranted, Harris need only allege “facts which, if proved, would entitle him to relief’ and that the state courts “never considered the claim in a full and fair hearing.” Richardson v. Briley, 401 F.3d 794, 800 (7th Cir.2005) (citations omitted). Harris has met this standard because the Circuit Court never held the evidentiary hearing concerning this ineffective assistance of counsel claim. Harris has also set forth allegations, if proved, that would entitle him to a new sentencing hearing. Accordingly, the Court grants Harris’ request for an evidentiary hearing on the issue of whether his attorney provided constitutionally ineffective assistance of counsel for failing to investigate and present mitigation evidence at the second stage of his capital sentencing hearing.

B. Concession of Eligibility for Death Penalty

1. Cronic Standard

Next, Harris argues that his trial counsel was constitutionally ineffective because he conceded Harris’ eligibility for the death penalty. The Court first addresses Harris’ pro se argument that the Supreme Court of Illinois erred in concluding that trial counsel was not ineffective for conceding his death penalty eligibility because the Supreme Court of Illinois relied on the standard set forth in Strickland instead of the standard under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic — which the United States Supreme Court decided on the same day as Strickland — “the Supreme Court recognized an exception to the Strickland standard for ineffective assistance of counsel for certain circumstances that are so egregiously prejudicial that ineffective assistance of counsel is presumed.” Hollenback v. United States, 987 F.2d 1272, 1275 (7th Cir.1993); see also Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Under the Cronic standard, prejudice may be presumed if: (1) the accused is denied the presence of counsel at a critical stage in proceedings; (2) counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; or (3) counsel is called upon to render assistance under circumstances where competent counsel very likely could not. See McDowell v. Kingston, 497 F.3d 757, 761-62 (7th Cir.2007) (citing Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039); see also Florida v. Nixon, 543 U.S. 175, 190, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (