Full opinion text
ORDER McDADE, District Judge. Before the Court is Willie E. Enoch’s (“Petitioner”) Petition for a Writ of Habeas Corpus [Doc. #3] filed pursuant to 28 U.S.C. § 2254. Respondent in his Answer, requests that the Petition be denied and dismissed. FACTUAL BACKGROUND Sometime in the late hours of April 22 or early hours of April 23, 1983, Armanda Kay Burns was brutally murdered. The body of Ms. Burns was found in her basement apartment. Ms. Bums’ hands had been bound with a coat hanger behind her back, her jacket and shirt pulled down around her arms, and her clothing below the waist removed. The victim’s bra was slightly raised from its normal position. A cloth covered her face. Ms. Burns had been stabbed several times in the face, back and chest, and her throat had been slashed. Ms. Bums’ chest and abdominal cavities were laid open by a knife wound which extended from her sternum to her pubic bone. Ms. Burns’ brutalized corpse was discovered by her boyfriend, Derek Proctor, and her brother and sister-in-law, Tyrone and Caroline Burns, at approximately 2:15 a.m. on April 23, 1983. Armanda Bums was, at the time of her murder, twenty-five years old and employed as a supervisor in the housekeeping department of Methodist Medical Center (“Methodist”) in Peoria, Illinois. Ms. Burns lived by herself in a basement apartment located approximately one block from Methodist Medical Center. On April 22, 1983, Ms. Burns spent from 12:00 p.m. until 2:40 p.m. with Derek Proctor. Derek Proctor (“Proctor”) was Ms. Burns’ boyfriend of eight months. During their time together that afternoon, Ms. Burns and Proctor met Caroline and Tyrone Burns and arranged to meet them late that evening at approximately 12:30 a.m. Sometime between 3:00 and 3:15 p.m., Ms. Burns reported for work. Ms. Bums worked the 3:00 p.m. to 11:45 p.m. shift at Methodist Medical Center. At 11:30 p.m. on the evening of April 22, 1983, Ms. Burns and several members of the Methodist housekeeping staff congregated in her office. Three of these staff members testified at trial that Petitioner entered Ms. Burns’ office and inquired as to the whereabouts of his brother who was an employee at Methodist. These witnesses testified that Petitioner and Ms. Burns carried on a conversation. Petitioner was clothed in a blue pin stripe suit and what was described as a “dingy” white shirt. Ms. Burns “punched out” of Methodist at approximately 11:47 p.m. and, accompanied by Petitioner, began walking toward her apartment. Petitioner and Ms. Burns were last seen walking together approximately 100 feet from Ms. Burns’ apartment. Pursuant to the plans Ms. Bruns and Proctor had made earlier that day, Proctor arrived at Ms. Burns’ apartment sometime between 11:50 p.m. and 12:00 a.m. on the evening and early morning hours of April 22 and 23, 1983. Proctor rang Ms. Burns’ doorbell repeatedly, but received no response. Having failed to find Ms. Burns in her apartment, Proctor sat outside the apartment and waited for Ms. Burns to return. Proctor waited in vain for five to ten minutes for Ms. Burns and then walked to Methodist believing that Ms. Burns might still be at work. At approximately 12:10 a.m., Proctor arrived at Methodist and met Winston Ragon, a Methodist security officer. Proctor told Mr. Ragon that he was looking for Ms. Burns and requested that Mr. Ragon telephone the housekeeping office to cheek if Ms. Burns was still in the office. Mr. Ragon placed the call and informed Proctor that he received no answer. Mr. Ragon testified that Proctor then said that he was just at Ms. Bums’ apartment, there was a window broken, he saw a man running from the apartment, and there was no response to his ringing of the doorbell. Mr. Ragon noted that Proctor’s clothing was neat in appearance. Proctor concluded his conversation with Mr. Ragon at approximately 12:20 a.m. and walked to the lobby to call Ms. Burns’ apartment. Proctor received no response to his telephone call. Having failed to reach Ms. Burns by telephone, Proctor returned to her apartment and again rang her doorbell. Again, Proctor received no response. Proctor then walked across the street to Glen Oak Towers, bought a pack of cigarettes, and returned to Ms. Burns’ apartment. Proctor again rang the doorbell. He received no response and sat down outside the apartment to wait for Ms. Burns. Proctor testified that at approximately 12:45 a.m. to 12:50 a.m., he heard Ms. Burns’ door open. Proctor further testified that he turned and saw a black man dressed in a dark blue, pin-striped suit carrying an off-white shirt in his hands exiting Ms. Burns’ apartment. Proctor identified this man as Petitioner. Proctor testified that Petitioner bumped into him on the way out of the apartment and stated in response to Proctor’s question concerning Ms. Burns’ whereabouts that she was inside the apartment. Proctor rang the doorbell and received no response. Proctor testified that he then turned, ran up the street, and saw Petitioner running across a field and on to Kumpf Street. Proctor testified that he then lost sight of Petitioner. Proctor returned to Ms. Burns’ apartment, rang the doorbell, and knocked on the apartment’s windows. Again, Proctor received no response. Proctor testified that he then went across the street to Glen Oak Towers and attempted unsuccessfully to telephone Ms. Bums’ mother. Proctor testified that he then returned to Ms. Burns’ apartment, again rang the doorbell, and again received no response. Proctor testified that he then went downtown to several bars in search of Petitioner. Proctor failed to locate Petitioner and at approximately 2:00 a.m. went to the home of Tyrone and Caroline Burns. Proctor, accompanied by Tyrone and Caroline Bums, went to Ms. Burns’ apartment. Upon arriving at Ms. Burns’ apartment, Proctor pushed in a window, peered into the apartment from outside, and made the grisly discovery of Armanda Kay Burns’ slain body. The Peoria police were immediately notified and were the first to enter the apartment. Officer Richard Ledbetter of the Peoria Police Department was the first police officer to arrive at the scene of the murder. Officer Ledbetter met Proctor outside Ms. Burns’ apartment. Officer Ledbetter testified that Proctor’s appearance was neat and that he was crying. As additional members of the Peoria police department arrived, the investigation of the murder of Ms. Burns began. The police recovered near the crime scene a white shirt which appeared to have blood on it. In addition, a kitchen type knife with a brown wooden handle was discovered in the field across which Proctor stated that Petitioner had fled. Police observed blood in the entrance way, living room, and bedroom areas of Ms. Burns’ apartment. No blood was observed in the kitchen area. Acting upon information provided by Proctor and members of Petitioner’s family, Officers Hoskins and Cannon of the Peoria Police Department began searching for Petitioner at the home of his girlfriend, Louise Pate (“Pate”). The officers found Petitioner at Pate’s home, placed him under arrest, and took him to the Peoria Police Department. At the police department, Petitioner stated that on the night of Ms. Burns’ murder, he had seen and spoken to her at Methodist, walked with her to within one block of her home, and given her some cocaine in a matchbook cover. In response to the officers’ statement that Ms. Burns was a victim of murder, Petitioner stated “No, not Kay Burns, Kay Burns.” At the time of Ms. Burns’ murder, Petitioner was living with Louise Pate. Pate testified that on April 22,1983, Petitioner left her home at approximately noon dressed in blue, baggy pants, a vest, a blue, pin-striped suit coat, a white shirt, and black shoes. Pate further testified that Petitioner returned to her home at some time in the early morning hours of April 23, 1983. Pate testified that upon his return, Petitioner went into the bathroom and ran the water. Petitioner, according to Pate’s testimony, then stated that he wanted a cigarette and that he was going to go to his sister’s nearby apartment to get one. Pate testified that Petitioner returned to her apartment after a couple of minutes at which time she turned on a light and discovered that Petitioner was wearing her pants. Pate testified that Petitioner then told her that he had just killed Kay Burns and that he had cut her throat and heart out. Petitioner stated to Pate that he had gone to the hospital, met Ms. Burns, pretended that he had cocaine, went with Ms. Burns to her house, took his coat off, and cut Ms. Burns’ throat while she was in the kitchen. Pate testified that Petitioner stated that Ms. Burns’ boyfriend had seen him leaving the apartment and that he had killed Ms. Burns because she was trying to get his brother fired from his job at Methodist and because of cocaine and a gang named the Disciples. Petitioner then told Pate that he had burned his blue baggy pants in the incinerator. Pate testified that she never again saw the white shirt Petitioner was wearing when he left her apartment on April 22, 1983. In addition, Pate testified that Petitioner regularly carried with him a steak knife owned by Pate which had a wooden, black/brown handle and a smooth blade. Pate testified that she had not seen her knife since April 22, 1983. Pate also testified that the knife discovered in the field close to Ms. Burns’ apartment looked similar to her knife except that the handle on her knife was darker, her knife was sharp, and a piece was not missing from her knife’s handle. On cross-examination, Pate stated that pri- or to her statements to police, she was told by the police that if she were to lie to the police, she could go to jail. Pate believed that if she were to go to jail, her child would be taken from her. Pate stated that she went to the home of Octavia Burchett and told her that her testimony before the grand jury in this case was untrue. Pate wanted to know what would be the consequences of changing her grand jury testimony. Pate’s testimony before the grand jury was substantially the same as her testimony at trial. On redirect, Pate testified that she considered changing her testimony because she did not want to testify against Petitioner and, possibly, be responsible for his being executed. Pate testified that it was Petitioner’s idea that she contact Ms. Burchett, a woman who Petitioner said knew the law, and tell her that Pate’s grand jury testimony was a lie. Pate testified that she did not lie to the grand jury or in her testimony at trial and that she was not threatened with arrest if she did not testify in a certain way. Instead, Pate testified that she lied when she told Ms. Burchett that she had lied to the grand jury. Petitioner was charged with attempt rape, aggravated kidnapping, armed robbery, and felony murder based upon armed robbery and murder. At trial, the above evidence was put forth as well as scientific and past crimes evidence. Diane Schneider, a forensic scientist for the Illinois Department of Law Enforcement, testified that hair fragments taken from the head of Petitioner were compared to hair fragments found on the body of Ms. Burns. Ms. Schneider testified that the hair fragments were consistent. However, Ms. Schneider testified that she could not state definitively that the hair taken from the body of Ms. Bums was from Petitioner. Ms. Schneider also testified that she examined a pair of shoes and a ring taken from Petitioner. Although these items tested positive for the possible presence of human blood, the amounts were too small to type or otherwise identify. Indeed, Ms. Schneider testified that the test she conducted only indicated that blood might be present on the items. Ms. Schneider also testified that the blood on the shirt discovered outside Ms. Burns’ apartment was of the same type as both Petitioner and Ms. Burns. Also adduced at trial was the testimony of Louella Burnside and Marilyn McClain. Ms. Burnside testified that in the early morning hours of March 6, 1983, she was attacked by Petitioner. Ms. Burnside testified that she was walking down the street in front of her house when Petitioner approached her and asked if he could walk with her. She did not know Petitioner, but Petitioner stated that his name was Willie. Petitioner stabbed her in the lower back, forced her into a garage, ordered her to disrobe, and told her that he would cut her throat if she did not do as he ordered. Petitioner raped her and tore up her jacket. Petitioner tied her hands behind her back with pieces of her torn jacket, gagged her, and threatened her with death if she reported the incident to the police. Ms. McClain testified that on the evening of March 30, 1983, she was attacked by Petitioner. Ms. McClain testified that she was at home that evening when Petitioner knocked on her door and asked if she knew where his brother lived. She told Petitioner that she did not know his brother. Petitioner asked for a glass of water. Ms. McClain got Petitioner a glass of water, returned the glass to the kitchen, and then returned to the living room. Petitioner entered the house and locked the door behind him. Petitioner brandished a knife and stated that he would kill her if she said anything. Petitioner tore up a towel, tied her hands behind her back, and gagged her with the towel fragments. Petitioner asked her if she was “in [her] period” and repeatedly stated “shut up, bitch, I will kill you.” While Petitioner was attempting to locate Ms. McClain’s purse, she freed her hands and ran toward the front door of her apartment. Petitioner fought with Ms. McClain as she attempted to flee, but fled when she screamed for her neighbor. Ms. McClain later discovered that Petitioner had cut her in the stomach area with his knife. Petitioner was convicted by a jury of attempt rape, aggravated kidnapping, and murder, but was found not guilty of armed robbery and felony murder. Petitioner waived jury consideration of sentencing issues and elected instead to have the court decide the issues. In the first phase of sentencing, the court found beyond a reasonable doubt that Petitioner was eligible for the imposition of the death penalty. In the second phase of sentencing, the court heard testimony that Petitioner had been previously been convicted of the rape and armed robbery of four women. The court also heard evidence from Adelean Byrd, Petitioner’s mother, and Louise Pate in mitigation of Petitioner’s prior criminal behavior. The court found that the murder was exceptionally brutal and heinous and indicative of wanton cruelty, that the murder was premeditated, that Petitioner would be a clear and present danger as an inmate, and that no mitigating circumstances existed. The court sentenced Petitioner to death. PROCEDURAL POSTURE On November 22,1983, Petitioner was convicted by a jury of murder, aggravated kidnapping, and attempt rape in the Circuit Court of the Tenth Judicial Circuit in Peoria, Illinois. Petitioner was sentenced to death for his crimes. Petitioner’s conviction was, by operation of Illinois law, appealed directly to the Supreme Court of Illinois. Petitioner raised seventeen grounds on direct appeal. The Supreme Court of Illinois affirmed both Petitioner’s conviction and Petitioner’s sentence of death. People v. Enoch, 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). In affirming Petitioner’s conviction and sentence, the Illinois Supreme Court stated that because Petitioner had failed to comply with the statutory requirement of filing a post-trial motion, the court’s review would be limited to constitutional issues which had been properly raised at trial and which could be raised later in a post-conviction hearing petition, sufficiency of evidence, and plain error. Accordingly, the Illinois Supreme Court addressed only Petitioner’s grounds which claimed that: 1) admission of custodial statements made by Petitioner violated his Miranda rights; 2) there was insufficient evidence to sustain a conviction for aggravated kidnapping; 3) there was insufficient evidence to sustain a conviction for attempt rape; 4) the trial court erred when it failed to sua sponte instruct the jury on the lesser included offense of unlawful restraint; 5) Rose’s failure to file a post-trial motion and his failure to preserve trial error for review constituted ineffective assistance of counsel; 6) the Illinois death penalty is unconstitutional because it limits the death penalty to classes of defendants who do not require special assistance for trial; and 7) the Illinois death penalty is unconstitutional because it does not require the prosecution to prove beyond a reasonable doubt that the death penalty is appropriate, it does not provide adequate safeguards, and it fails to ensure adequate appellate review. The Illinois Supreme Court held that the remaining grounds were waived. The Illinois Supreme Court then addressed Petitioner’s grounds which were properly before it and found them to be without merit. The Supreme Court of the United States denied Petitioner’s subsequently filed writ of certiorari. Enoch v. Illinois, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263 (1988). In April of 1989, Petitioner filed a pro se petition for post-conviction relief with the state circuit court. Subsequently, the law firm of Kirkland & Ellis was appointed to represent Petitioner and, in March of 1990, an amended petition for post-conviction relief was filed on behalf of Petitioner. Petitioner’s amended petition raised four grounds for relief. First, Petitioner argued that his trial counsel, Mark Rose, suffered a per se conflict of interest which rendered him ineffective, and the trial court failed to conduct an adequate hearing regarding the conflict. Second, Petitioner argued that his trial counsel, Mark Rose, was actually ineffective as a result of trial counsel’s failure to investigate, to develop Petitioner’s defense theory, to call witnesses, to properly cross-examine Proctor, and to preserve objections and errors for appeal, and that appellate counsel Seeder was ineffective for fading to raise the issue of Rose’s conflict of interest. Third, Petitioner argued that the retroactive application by the Supreme Court of Illinois of Ill.Rev.Stat., ch. 38, ¶ 116-1 denied Petitioner his constitutional right of appeal. Fourth, Petitioner argued that the Illinois death penalty statute is unconstitutional because it precludes consideration of mercy by the sentencer and, therefore, does not allow the sentencer to make an individualized choice as to whether to impose the death penalty and operates so as to divest the sentencer of discretion. The circuit court dismissed Petitioner’s petition. The Supreme Court of Illinois affirmed the decision of the circuit court and dismissed Petitioner’s petition for post-conviction relief. People v. Enoch, 146 Ill.2d 44, 165 Ill.Dec. 719, 585 N.E.2d 115 (1992). In so doing, the Supreme Court of Illinois addressed the merits of Petitioner’s grounds claiming ineffective assistance of counsel and improper retroactive application of the statute requiring the filing of a post-trial motion. The Supreme Court of Illinois held, however, that Petitioner had waived his claim that the Illinois death penalty unconstitutionally deprives a sentencer of discretion because Petitioner could have, but did not, raise the claim on direct appeal. Petitioner now seeks habeas relief in this Court. In his habeas petition, Petitioner raises fifteen grounds for relief. They are: (1) Petitioner’s rights under the Fifth and Fourteenth Amendments were violated by the admission at trial of his custodial statements; (2) Petitioner is actually innocent of the crimes of which he was convicted; (3) evidence of dissimilar crimes was incorrectly admitted at trial; (4) Petitioner was denied a fair trial by the prosecutor’s opening remarks; (5) Petitioner’s trial counsel suffered from a conflict of interest which rendered him ineffective; (6) the trial court failed to conduct an adequate hearing as to the conflict of interest of Petitioner’s counsel; (7) Petitioner’s trial counsel was ineffective under the Strickland standard because trial counsel’s preparation and presentation of Petitioner’s defense was deficient; (8) Petitioner was improperly convicted of aggravated kidnapping; (9) Petitioner was improperly convicted of attempt rape; (10) Petitioner was denied a fair trial because the trial court refused to give a circumstantial evidence instruction; (11) Petitioner’s death sentence was improperly based upon the trial court’s finding that Petitioner was a “clear and present danger” in prison; (12) Petitioner did not knowingly and intelligently waive his right to be sentenced by a jury; (13) the Illinois Supreme Court’s retroactive application of a new waiver rule denied Petitioner a fair trial; (14) the Illinois death penalty statute is unconstitutional because it prohibits an individualized determination that death is an appropriate sentence in a particular case; and (15) Petitioner is actually innocent of the death penalty. Since Respondent argues that Petitioner has waived many of his claims due to procedural default, the Court shall first address these arguments and determine which, if any, grounds have been procedurally defaulted by Petitioner. PROCEDURAL DEFAULT Procedurally defaulted claims in which a petitioner failed to follow an applicable state procedural rule in raising the claims may not be reached on the merits by a court unless cause and prejudice or miscarriage of justice are shown. Sawyer v. Whitley, — U.S. -, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Coleman v. Thompson, the Supreme Court discussed procedural default' in the context of federal habeas corpus review and stated: We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Illinois treats any claim which could have been presented to a reviewing court on direct appeal as barred under the doctrine of waiver. Reese v. Peters, 926 F.2d 668, 671 (7th Cir.1991); People v. Silagy, 116 Ill.2d 357, 107 Ill.Dec. 677, 680, 507 N.E.2d 830, 833 (1987); People v. Bums, 75 Ill.2d 282, 26 Ill.Dec. 679, 682, 388 N.E.2d 394, 397 (1979). In addition, Illinois treats claims of substantial denial of constitutional rights as waived if they are not raised in the original or amended post conviction petition. Reese, 926 F.2d at 671; Ill.Rev.Stat. 725 ILCS 5/122-3. Finally, Illinois treats the failure to raise an issue in a written motion for a new trial as constituting a waiver of that issue. Ill.Rev. Stat. 725 ILCS 5/116-1; People v. Shum, 117 Ill.2d 317, 111 Ill.Dec. 546, 553, 512 N.E.2d 1183,1190 (1987); People v. Szabo, 113 Ill.2d 83, 100 Ill.Dec. 726, 730, 497 N.E.2d 995, 999 (1986); People v. Porter, 111 Ill.2d 386, 95 Ill.Dec. 465, 470, 489 N.E.2d 1329, 1334 (1986); People v. Caballero, 102 Ill.2d 23, 79 Ill.Dec. 625, 629, 464 N.E.2d 223, 227 (1984); People v. Pickett, 54 Ill.2d 280, 282, 296 N.E.2d 856 (1973). With these rules and principles in mind, the Court shall address Respondent’s procedural default arguments seriatim. GROUND TWO Ground Two of the Petition claims that Petitioner is actually innocent of the crimes of which he was convicted. Subsequent to Petitioner’s filing of his Petition, however, the Supreme Court decided the case of Herrera v. Collins, — U.S.-, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), which, seemingly, held that a claim of actual innocence is not a free standing constitutional claim upon which habeas relief can be granted. Petitioner, in his Memorandum in Support of Petition filed after the Supreme Court’s decision in Herrera, appears to concede that actual innocence is not a free standing claim cognizable in federal habeas review and has apparently abandoned his claim made in Ground Two. Petitioner now contends instead that his claim of actual innocence serves as a gateway through which the federal courts may review his procedurally defaulted claims. Petitioner does, however, refer to the possibility that the Supreme Court may, in the context of a death penalty case, recognize a free standing constitutional claim of actual innocence. As such, the Court shall analyze Petitioner’s argument of actual innocence made in Ground Two in the context of a free standing constitutional claim. Petitioner’s argument of actual innocence as an exception to the rule barring federal habeas review of procedurally defaulted claims shall be addressed infra in the portion of this Order discussing the miscarriage of justice exception. Respondent argues that Petitioner has procedurally defaulted his claim made in Ground Two or, in the alternative, the claim is without merit. Despite first citing Herrera, a case in which the Supreme Court explicitly differentiates the claims of insufficiency of the evidence and actual innocence, Respondent continues on to cite Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and appears to analyze the claim as one alleging insufficiency of the evidence. — U.S. at -, 113 S.Ct. at 861. Respondent’s analytical approach is, quite clearly, incorrect. An insufficiency of the evidence claim argues legal innocence where as an actual innocence claim argues factual innocence. Sawyer, — U.S. at -, 112 S.Ct. at 2519 citing Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986). At first glance, the Supreme Court in Herrera appears to have held that the claim of actual innocence is not a free standing constitutional claim. Thus, under existing Supreme Court precedent, a free standing claim of actual innocence does not exist. The Court notes, however, that a majority on the Supreme Court appears to be willing to hold that it would be unconstitutional to execute an innocent person. Herrera, — U.S. at -, -, 113 S.Ct. at 869, 870 (O’Connor concurring, joined by Kennedy), — U.S. at -, 113 S.Ct. at 875 (White concurring), — U.S. at -, 118 S.Ct. at 876 (Blackmun dissenting, joined in relevant part by Stevens and Souter), But See — U.S. at -, 113 S.Ct. at 874 (Scalia concurring joined by Thomas); Milone v. Camp, 22 F.3d 693, 700 (7th Cir.1994). Indeed, Chief Justice Rehnquist, the author of Herrera, assumed for the sake of argument that “a truly persuasive demonstration of ‘actual innocence’ made after trial” would make the execution of a defendant unconstitutional. Herrera, — U.S. at -, 113 S.Ct. at 869. Accordingly, the Court shall assume arguendo for the sake of deciding this case that a free standing claim of actual innocence in the context of a ease in which the death penalty has been imposed is cognizable under federal habeas review. Petitioner’s claim of actual innocence fails for at least two reasons. First, Petitioner did not present this claim to the state courts of Illinois and, therefore, the claim has been proeedurally defaulted. Reese, 926 F.2d at 671. Second, if Petitioner’s actual innocence claim was considered to be apparent from his state court petitions or were found to be excusable under one of the exceptions to the rule barring federal habeas review of proeedurally defaulted claims, our Supreme Court stated that a petitioner’s threshold evidentiary showing for this assumed constitutional claim would be “extraordinarily high.” Herrera, — U.S. at -, 113 S.Ct. at 869. The Court finds that the evidentiary showing made by Petitioner falls far short of meeting this assumed claim’s extraordinarily high threshold. The Supreme Court in Herrera did not set forth the precise burden of proof applicable in an actual innocence claim. The Court finds, however, that to be entitled to relief based upon actual newly discovered or newly presented evidence and the record as a whole, he is probably innocent. Although the Court feels that the burden of proof should be higher, the use of this relatively minimal standard comports with a majority of those justices who appear willing to recognize this assumed claim. Herrera, — U.S. at -, 113 S.Ct. at 882. As such, the Court deems this the appropriate standard to be used until that time when the Supreme Court explicitly recognizes a claim of actual innocence and explicitly sets forth its accompanying burden of proof. In support of his claim of actual innocence, Petitioner first re-argues the evidence presented at trial. Next, Petitioner offers the affidavits of four persons. Affiant Linda Thorpe states that at between 11:45 p.m. and 12:00 a.m. on the night of Ms. Burns’ murder she saw Ms. Burns outside of her apartment with a man who was much taller than she. Affiant Terrie Meeks (Burwell) states that at approximately 3:30 a.m. on April 23,1983 she heard a woman scream “Oh my God, Help me.” Ms. Meeks states that she actually may have heard the scream an “hour or so earlier.” Affiant Steven Fehr states that he was Ms. Meeks supervisor on April 23, 1983 and that at some time between 1:30 and 3:00 she telephoned him to report a woman’s screams. Affiant Greg Hunter states that although he testified at Petitioner’s trial, he states again that Petitioner was wearing a blue pin-striped suit with matching coat and pants. Finally, Petitioner offers new evidence uncovered by Petitioner’s court appointed investigator. This evidence consists of Ms. Burns’ time card which shows that she left Methodist sometime between 11:47 and 11:48 p.m. on April 22, 1983, and that the casual walking time between the time clock and Ms. Burns’ apartment is approximately four and one half minutes. Upon reviewing the evidence presented by Petitioner as well as the record as a whole, the Court finds that Petitioner has failed to show that in light of all the evidence, he is probably innocent. In so stating, the Court first notes that it is not a forum “in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983). In addition, the Court finds that Petitioner’s theory of the case is unpersuasive. Petitioner’s primary argument concerning his innocence appears to be that Proctor, not Petitioner, murdered Ms. Burns. Petitioner theorizes that Proctor murdered Ms. Burns between the time she arrived home from work, approximately 11:52 p.m., and the time that Proctor appeared at Methodist and spoke to Ragon, approximately 12:10 a.m. The Court finds it unbelievable that in this eighteen minute period, Proctor could attack and subdue Ms. Burns, bind her hands and disrobe her, stab her savagely and repeatedly, remove from himself and his clothing any indication of the vicious attack, compose himself so as to appear lucid and calm, formulate a plan whereby he would go to Methodist and concoct a story that would implicate Petitioner, a person with whom Proctor was at best vaguely familiar, as Ms. Burns’ murderer, and then make the walk to Methodist. Common sense simply makes such a theory untenable. Finally, the evidence offered by Petitioner does little to rebut the substantial case presented by the prosecution. The time card and walking time evidence attempts to make fine temporal distinctions in a ease characterized by coarse estimations of the relevant time periods. Hunter had already testified at Petitioner’s trial that Petitioner was wearing a blue pin-striped suit on April 22, 1983. Meeks’ and Fehr’s testimony does little if anything to establish either the identity of the woman whose scream was heard or the timing of that scream. Indeed, the timing of the scream strongly indicates that it was not Ms. Burns who Meeks heard that morning. As for Thorpe’s testimony, although probative, it is by no means determinative of Petitioner’s guilt or innocence. The Court finds that Petitioner, in light of the substantial showing of his guilt in the record, has failed to show that based upon the record and newly discovered or presented evidence he is probably innocent. In addition, Petitioner’s showing does not rise to a level precluding any rational trier of fact from finding guilt beyond a reasonable doubt nor can it be characterized as being extraordinarily high and truly persuasive of Petitioner’s innocence. Accordingly, the Court finds that, even if a free standing constitutional claim of actual innocence existed in the present context, the claim would be both procedurally defaulted and without merit. Therefore, the Court finds that Petitioner’s Ground Two is without merit and is not a proper basis upon which to grant habeas relief in this case. GROUND THREE Ground Three of the Petition claims that evidence of dissimilar crimes was erroneously admitted, denying Petitioner a fundamentally fair trial. Respondent argues that the Supreme Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this claim to be waived for failure to file a post-trial motion as required by Ill.Rev.Stat. 725 ILCS 5/116— 1, and as such, the claim has been procedurally defaulted. Petitioner does not attempt to refute Respondent’s argument, . The Court finds that Petitioner has procedurally defaulted this claim. Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). GROUND FOUR Ground Four of the Petition claims that the prosecutor’s opening statement was improper and prejudiced Petitioner so severely that he was denied a fair trial. Respondent argues that the Supreme Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this claim to be waived for failure to file a post-trial motion as required by Ill.Rev. Stat. 725 ILCS 5/116-1, and as such, the claim has been procedurally defaulted. Petitioner does not attempt to refute Respondent’s argument. The Court finds that Petitioner has procedurally defaulted this claim. Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). GROUND TEN Ground Ten of the Petition claims that the trial court’s refusal to give a circumstantial evidence instruction denied Petitioner a fair trial. Respondent argues that the Supreme Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this claim to be waived for failure to file a post-trial motion as required by Ill.Rev.Stat. 725 ILCS 5/116-1, and as such, the claim has been procedurally defaulted. Petitioner does not attempt to refute Respondent’s argument. The Court finds that Petitioner has procedurally defaulted this claim. Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). GROUND ELEVEN Ground Eleven of the Petition claims that Petitioner’s death sentence was improperly based upon the trial judge’s finding that Petitioner was a “clear and present” danger in prison. Respondent argues that the Supreme Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this claim to be waived for failure to file a post-trial motion as required by Ill.Rev.Stat. 725 ILCS 5/116-1, and as such, the claim has been procedurally defaulted. Petitioner has not attempted to refute Respondent’s argument. The Court finds that Petitioner has procedurally defaulted this claim. Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). GROUND TWELVE Ground Twelve of the Petition claims that Petitioner did not knowingly and intelligently waive his right to a jury sentencing. Respondent argues that the Supreme Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this claim to be waived for failure to file a post-trial motion as required by Ill.Rev.Stat. 725 ILCS 5/116-1, and as such, the claim has- been procedurally defaulted. Petitioner does not attempt to refute Respondent’s argument. The Court finds that Petitioner has procedurally defaulted this claim. Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). GROUND FOURTEEN Ground Fourteen of the Petition claims that the Illinois death penalty statute is unconstitutional because it prohibits an individualized determination that death is the appropriate sentence in each case. Respondent argues that the Supreme Court of Illinois in Enoch, 585 N.E.2d at 122-23, found that this claim was waived because Petitioner failed to raise on direct appeal this specific claim and as such, the claim has been procedurally defaulted. Petitioner has not attempted to refute Respondent’s argument. The Court finds that Petitioner has procedurally defaulted this claim. Coleman, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). CAUSE/PREJUDICE AND MISCARRIAGE OF JUSTICE Although a petitioner may have procedurally defaulted a federal claim, the claim may still be reviewed via a federal habeas petition if the petitioner can demonstrate cause for the default and actual prejudice, or demonstrate that failure to consider the claim would result in a fundamental miscarriage of justice. Herrera, — U.S. at ---, 113 S.Ct. at 862-63 (1993); Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; Madyun v. Young, 852 F.2d 1029, 1032 (7th Cir.1988). “Cause” and “prejudice” in the context of procedural default require a showing of some objective factor external to the defense which prevented Petitioner or his counsel from complying with a state’s procedural rule and a showing of actual prejudice resulting from the errors of which a petitioner complains, respectively. Murray v. Carrier, 477 U.S. at 492, 106 S.Ct. at 2647; McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). “Fundamental miscarriage of justice” has been described as having a narrow scope and is concerned with and equivalent to actual innocence. Sawyer, - U.S. at ---, 112 S.Ct. at 2518-19 (1992). Petitioner does not allege that any external impediment existed to his complying with the state’s procedural rule nor does he even argue the existence of cause for his procedurally defaulting the above claims or that he was prejudiced by his inability to raise the defaulted claims. Rather, Petitioner argues, at least in his Memorandum in Support of his Petition, that his defaulted claims should be addressed on their merits because he is actually innocent and, as such, the fundamental miscarriage of justice exception applies to his case. Petitioner contends that his claim of actual innocence is a gateway affording habeas review of his procedurally defaulted constitutional claims asserted in his petition. Therefore, the Court shall examine Petitioner’s assertion of actual innocence in the context of the miscarriage of justice exception to the bar against federal habeas review of procedurally defaulted claims. In analyzing Petitioner’s contention that the fundamental miscarriage of justice or actual innocence exception to the bar against federal review of procedurally defaulted claims applies in this case, the Court must first determine what standard should be applied to such a claim. In a trio of cases decided in 1986, the Supreme Court defined the actual innocence exception. In Kuhlmann v. Wilson, the Supreme Court held that a federal court could reach the merits of a successive petition if the petitioner “supplements his constitutional claim with a color-able showing of factual innocence.” 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality). The Supreme Court went on to state that “[t]he prisoner may make the requisite showing by establishing that under the probative evidence he has a colorable claim of factual innocence,” and that review of successive petitions should be granted “only in rare cases.” Id. In Murray v. Carrier, the Supreme Court addressed the actual innocence exception in the context of procedurally defaulted claims. 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The Supreme Court stated that “in the extraordinary ease, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ.” 477 U.S. at 496, 106 S.Ct. at 2649. In Smith v. Murray, the third of the Supreme Court’s 1986 trilogy of actual innocence exception cases, the Supreme Court quoted and applied the standard annunciated by Carrier in the context of a capital sentencing case. 477 U.S. 527, 537, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986). These cases established that the standard for applying the actual innocence exception to procedurally barred claims was that a petitioner must establish, in light of all the evidence, that a constitutional violation had probably resulted in the conviction of one who is actually innocent. In 1992, the Supreme Court altered the. contours of actual innocence exception jurisprudence with its decision in Sawyer v. Whitley. — U.S. -, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The issue before the Supreme Court in Sawyer was the proper standard for determining whether a petitioner pursuing a successive, abusive, or procedurally defaulted federal habeas claim had demonstrated that he was actually innocent of the death penalty to which he had been sentenced so that a federal court could reach the merits of his claim. The Supreme Court reviewed its earlier decisions in Kuhlmann, Carrier and Smith, and attempted to fashion an analogous analytical framework for the claim of “innocent of death.” Id., — U.S. at ---, 112 S.Ct. at 2520-21. The Supreme Court held that the proper standard in the capital sentencing context for assessing claims of actual innocence is whether a petitioner has shown by clear and convincing evidence that but for a constitutional error at his sentencing hearing, no reasonable juror would find petitioner eligible for the death penalty under state law. Id., — U.S. at -, -, 112 S.Ct. at 2523, 2525. Although Sawyer clearly established a new and heightened test for the actual innocence exception in the context of a challenge to a prisoner’s death sentence, the Supreme Court was silent as to the new standard’s application in the guilt phases of capital and non-capital cases as well as the sentencing phase of non-capital cases. In the absence of clear guidance from the Supreme Court, the lower federal courts have struggled to divine the proper scope of Sawyer. A split of authority has developed. Alderman v. Zant, 22 F.3d 1541 (11th Cir.1994). The Eighth Circuit has held that the clear and convincing standard of Sawyer applies equally to challenges to a conviction and challenges to a sentence of death. Schlup v. Delo, 11 F.3d 738, 740 (8th Cir.1993) cert. granted, — U.S. -, 114 S.Ct. 1368, 128 L.Ed.2d 45 (1994); Cornell v. Nix, 976 F.2d 376 (8th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993); McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992). In McCoy, an Eighth Circuit panel presented its twofold rationale for its extension of Sawyer. First, the McCoy panel stated that the Supreme Court in Sawyer applied the clear and convincing standard to the underlying conviction. 969 F.2d at 651. Second, the McCoy panel noted that the Supreme Court and the Eighth Circuit have consistently applied the same standard to challenges to both a criminal conviction and the imposition of the death penalty. Id. at 651-52 citing Carrier, 477 U.S. at 497, 106 S.Ct. at 2650; Smith, 477 U.S. at 537, 106 S.Ct. at 2668; McCleskey, 499 U.S. at 493, 501-04, 111 S.Ct. at 1470, 1474-75; Edgemon v. Lockhart, 924 F.2d 126, 129 (8th Cir.1990); and Stokes v. Armontrout, 893 F.2d 152, 156 (8th Cir.1989). Thus, the Eighth Circuit currently applies the Sawyer clear and convincing standard, at least in the context of a capital ease, in both the guilt and sentencing phases. The Court has considered and rejects the reasons proffered by the Eighth Circuit in support of its broad application of Sawyer. The McCoy panel put forth two reasons for their holding. First, the panel contends that although the Supreme Court in Sawyer announced its new standard in the context of an innocence of the death penalty claim, the Supreme Court also applied the new standard to a challenge to the underlying conviction. Second, the panel contends that the Supreme Court and the Eighth Circuit consistently have applied the same standard to challenges to both a criminal conviction and a sentenced imposed. The McCoy panel’s first proffered reason fails to persuade the Court of the wisdom of the panel’s approach. The Supreme Court specifically framed the issue in Sawyer as involving “the standard for determining whether a petitioner bringing a successive, abusive, or defaulted federal habeas claim has shown ‘actual innocence’ of the death penalty to which he has been sentenced.” — U.S. at -, 112 S.Ct. at 2517. The Supreme Court in Sawyer then held that “petitioner has failed to show by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty.” Id., — U.S. at -, 112 S.Ct. at 2525. The limiting language utilized by the Supreme Court in Sawyer emphasizes that the Supreme Court intended to limit the application of its newly developed standard to the sentencing phase of a proceeding. Indeed, Schlup v. Delo, an Eighth Circuit case following McCoy, stated that “Sawyer dealt with the punishment phase of the criminal proceeding as opposed to the guilt phase of the trial.” 11 F.3d 738, 740 (8th Cir.1993), cert. granted, — U.S. -, 114 S.Ct. 1368, 128 L.Ed.2d 45 (1994). The panel in Schlup appeared to be critical of the reasoning employed by the panel in McCoy, but was required to follow the holding in McCoy. Id. The Seventh Circuit in Mills, 979 F.2d at 1278-79, and the Eleventh Circuit in Alderman, 22 F.3d 1541, 1552 (1994) also interpret Sawyer as formulating a standard only for the sentencing phase of a criminal proceeding. The McCoy panel’s second proffered reason also fails to persuade the Court. The panel points out that the Supreme Court consistently applied the same test to both challenges arising in the guilt phase and those arising in the sentencing phase. 969 F.2d at 651. As such, the panel reasoned that Sawyer must apply to both phases of a proceeding. The panel’s argument fails to persuade the Court for two reasons. First, although it is true that the Supreme Court prior to Sawyer consistently applied the same standard, the Kuhlmann/Carrier standard, to both phases of a criminal proceeding, at that time only one standard existed to be applied. As the McCoy panel itself noted, the Supreme Court in Sawyer announced a new rule. Id. Thus, the fact that the Supreme Court, prior to Sawyer, applied one test to both phases of a proceeding does not necessarily mean that the Supreme Court intended to completely displace the Kuhlmann/Carrier standard. Second, the panel’s argument based upon consistent application of one standard relies upon the proposition that the Sawyer standard displaced any preexisting standard in both the guilt and sentencing phases of a hearing. The Supreme Court’s citation to and quotation of the Kuhlmann standard in Herrera belies such an argument. — U.S. at -, 113 S.Ct. at 862. The Court, therefore, rejects the rationale and holdings of the Eighth Circuit in McCoy and Cornell. The Fifth Circuit construes Sawyer as being of limited applicability. In Montoya v. Collins, a death penalty case, one panel in the Fifth Circuit applied the Kuhlmann probable innocence standard to the petitioner’s guilt phase claims and the Sawyer clear and convincing standard to the petitioner’s sentencing phase claims. 988 F.2d 11, 12-13 (5th Cir.1993). The Montoya court did not annunciate its reasons for applying Kuhlmann and Sawyer standards in this fashion, nor recognize the Eighth Circuit’s contrary holdings. The Seventh Circuit has, thus far, declined to fully delineate the scope of the Sawyer standard. In two apparently contradictory holdings, two panels in the Seventh Circuit arrived at different conclusions as to the proper standard to be applied in the context of a sentencing phase claim made in a non-capital case. The panel in Mills v. Jordan held that the actual innocence exception applied in the context of challenge to the sentence imposed in a non-capital case. 979 F.2d 1273, 1278-79 (7th Cir.1992). The Mills panel found that a petitioner’s claim challenging an enhancement of his sentence based upon his status as a habitual offender should be analyzed under the Sawyer standard. Id. In so holding, the Mills panel first quoted and discussed the Carrier standard. Id. at 1278. Thus, the panel seemed to, at least implicitly, suggest that the Carrier/Kuhlmann standard survived the Sawyer decision. In precisely what contexts the Carrier/Kuhlmann standard continues to apply was not explained. The panel in Higgason v. Clark, a non-capital case, stated that a petitioner challenging his being sentenced as a habitual offender would be required to establish actual innocence under the approach of Kuhlmann because his petition was successive. 984 F.2d 203, 206 (7th Cir.1993). The Higgason opinion did not cite to, much less attempt to reconcile its opinion with, the holding in Mills. In the Seventh Circuit’s most recent discussion of the actual innocence exception, the panel in Milone v. Camp declined to decide which standard applied to claims arising from the guilt phase of a non-capital trial. 22 F.3d 693, 701 (7th Cir.1994). Rather, the Milone panel found it more “efficient” to simply bypass an actual innocence exception analysis and review on their merits the petitioner’s unexhausted claims. Id. It therefore appears that the question of which standard applies to which phase of a case is an open question in the Seventh Circuit. This Court believes, contrary to the Eighth Circuit, that the clear and convincing standard laid out in Sawyer did not totally displace the colorable showing of probable innocence standard established in Kuhlmann and Carrier. The Court notes that in Herrera, the Supreme Court cites to Kuhlmann and quotes with approval its colorable showing of factual innocence standard. — U.S. at -, 113 S.Ct. at 862. Chief Justice Rehnquist authored both Herrera and Sawyer, joined the plurality in Kuhlmann, and joined the Supreme Court’s opinions in Smith and Carrier. In light of the Chief Justice’s instrumental role in crafting both the Kuhlmann/Carrier standard and the Sawyer standard, it is difficult to believe that Chief Justice Rehnquist in Sawyer would first totally remove the Kuhlmann/Carrier standard from actual innocence exception jurisprudence without explicitly stating his intention to do so and then in Herrera cite to and quote the standard which he had only a year earlier discredited. Accordingly, the Court finds that the Chief Justice’s citation to Kuhlmann in Herrera is persuasive evidence as to the continued vitality of the Kuhlmann/Carrier standard in actual innocence exception jurisprudence. The Court also finds persuasive as to the continued validity of the Kuhlmann/Carrier standard the panel’s discussion in Mills which indicates that the Kuhlmann/Carrier standard survived the Sawyer decision. 979 F.2d at 1278-79. In Mills, the panel addressed a petitioner’s claim that the fundamental miscarriage of justice exception to the procedural default rule applied to allow the panel to address the merits of petitioner’s defaulted claims. The petitioner was attacking the constitutionality of a previous conviction whieh was used as a basis for sentencing the petitioner to an enhanced prison term as a habitual offender. In analyzing the petitioner’s miscarriage of justice claim, the panel first cited to and quoted the Carrier standard that a constitutional violation “probably resulted in the conviction of one who is actually innocent.” Id. at 1278, citing, Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. The panel noted that in the typical case where a petitioner attacks the conviction for which he is incarcerated, actual innocence refers to the crime for which petitioner is incarcerated. Where the petitioner attacks a previous conviction used to enhance his sentence, however, the panel found that the clear and convincing standard of Sawyer should be applied. Id. at 1278-79. The panel in Mills appears to indicate from its discussion that although the Carrier standard is appropriate in analyzing a claim of actual innocence of the crime for which the petitioner was convicted, the Sawyer standard is the appropriate analytical measure for analyzing a claim of actual innocence in the context of a challenge to the correctness of a petitioner’s sentence. Such an approach is more in keeping with the Fifth Circuit’s approach in Montoya than the Eighth Circuit’s approach in McCoy, Cornell, and Schlup. Therefore, Mills offers further persuasive evidence that the Kuhlmann/Carrier standard co-exists with the Sawyer standard in actual innocence exception jurisprudence. Given the Court’s finding that the Kuhlmann/Carrier standard and Sawyer standard co-exist in actual innocence exception jurisprudence, the Court must determine in which contexts the standards apply. Two basic phases exist in a criminal proceeding. First, the guilt phase where a defendant is found either guilty or innocent of the crime of which he is charged. Second, the sentencing phase where a convicted defendant’s punishment is determined. The Court finds that the Kuhlmann/Carrier standard should be applied in the guilt phase of a criminal proceeding, and the Sawyer standard applied to the sentencing phase of a criminal proceeding. Thus, a petitioner’s argument that the actual innocence exception to the procedural default rule should apply to his claims attacking the validity of his conviction shall be analyzed by this Court under the color-able showing of probable innocence standard of Kuhlmann and Carrier. A petitioner’s argument that the actual innocence exception to the procedural default rule should apply to his claims attacking the validity of his sentence shall be analyzed by this Court under the clear and convincing standard of Sawyer. The Court’s decision to adopt a bifurcated analysis of actual innocence exception claims rests upon the presumption of innocence which applies in a criminal proceeding. A defendant charged with a crime is entitled to a presumption of innocence and may insist that his guilt be proved beyond a reasonable doubt. Herrera, — U.S. at -, 113 S.Ct. at 859 (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Once, however, a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence dissipates. Herrera, — U.S. at -, 113 S.Ct. at 860 (citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)). In light of the presumption of innocence which cloaks a defendant during the guilt phase of a criminal proceeding, the relatively less demanding evidentiary standard of the Kuhlmann/Carrier standard should apply. Once a defendant is convicted, however, the justification for applying the less onerous standard of Kuhlmann and Carrier dissipates along with the defendant’s presumption of innocence. As such, the stricter evidentiary standard of Sawyer should apply to actual innocence exception arguments seeking review of procedurally defaulted claims arising in the sentencing phase of a proceeding. Thus, the Supreme Court’s opinions in Herrera and Sawyer may be reconciled by considering the dichotomy of criminal proceeding phases and the presumptions which may or may not accompany them. The Court’s approach in applying the Kuhlmann/Carrier and Sawyer standards to the guilt and sentencing phases of a criminal proceeding addresses the concerns of the detractors of the Sawyer standard and comports with what appears to be the probable approach of the Seventh Circuit were it to address this issue fully. In his concurrence in Sawyer, Justice Stevens stated that it would be “heartlessly perverse to impose a more stringent standard of proof to avoid a miscarriage of justice in a capital case than in a noncapital case.” — U.S. at -, 112 S.Ct. at 2533 (joined by Justice Blackmun and Justice O’Connor). This Court’s finding that the phase of the proceeding, not the type of punishment imposed, is determinative of the standard to be used in evaluating an actual innocence exception claim cures what Justice Stevens viewed as a perversion. The Court’s decision also comports with what the Court believes would be the Seventh Circuit’s approach to this issue. The opinion in Mills demonstrates that when considering the actual innocence exception, at least one panel in the Seventh Circuit may be leaning in the direction taken by this Court. The Court has found that Petitioner has proeedurally defaulted six of his claims presented in his Petition. In addition, the Court has found that Petitioner has not shown or even argued cause and prejudice in connection with his defaulting these claims. Petitioner has, however, in Ground Two of his Petition, argued that the actual innocence exception to rule forbidding review of procedurally barred claims applies in his case. Therefore, the Court shall analyze Petitioner’s claim of actual innocence and determine whether the Court should address on the merits any of Petitioner’s guilt and sentencing phase claims. Petitioner has defaulted four of his guilt phase claims: Ground Two which claims that Petitioner is actually innocent of the crimes for which he was convicted, Ground Three which claims that evidence of dissimilar crimes was erroneously admitted, Ground Four which claims that the prosecutor’s opening statements were improper, and Ground Ten which claims that the state court’s refusal to give a circumstantial evidence was error. As these are guilt phase claims, the Court shall apply the KuhlmannlCarrier standard to Petitioner’s actual innocence argiment in relation to these claims. Under the Kuhlmann/Carrier standard, Petitioner must show a fair probability that, in light of all the evidence, including that alleged to have been illegally admitted and evidence tenably claimed to have been wrongly excluded or to have become available only after trial, the trier of fact would have entertained a reasonable doubt of his guilt. Kuhlmann, 477 U.S. at 455, n. 17, 106 S.Ct. at 2628, n. 17. Having thoroughly reviewed the record as well as the briefs filed in this ease and for the reasons set forth on pages twenty and twenty-one of this Order, the Court finds that Petitioner has failed to make the requisite evidentiary showing of his actual innocence. The substantial evidence of Petitioner’s guilt contained in the record is scarcely affected by Petitioner’s present arguments and presentation of evidence. The Court is thoroughly convinced that, in light of all the evidence, a trier of fact would entertain no doubt of Petitioner’s guilt. Accordingly, the Court is barred from reviewing on the merits Petitioner’s defaulted claims in Grounds Two, Three, Four, and Ten. Petitioner has also defaulted three of his sentencing phase claims: Ground Eleven which claims that Petitioner’s death sentence was improperly based upon the trial judge’s finding that Petitioner was a clear and present danger, Ground Twelve which claims that Petitioner did not knowingly waive his right to a jury sentencing, and Ground Fourteen which claims that the Illinois death penalty statute is unconstitutional. To successfully argue his actual innocence exception claim in the sentencing phase context, Petitioner must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found Petitioner eligible for the death penalty. Sawyer, — U.S. at -, 112 S.Ct. at 2523. Under Illinois law, Petitioner could have been sentenced