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July 5, 1990


The opinion of the court was delivered by: ASPEN


 On April 13, 1978, petitioner Hernando Williams pled guilty to armed robbery, aggravated kidnapping, rape and murder. A jury later sentenced Williams to death. Williams now seeks habeas relief under 28 U.S.C. § 2254, challenging the voluntariness of his guilty plea, various aspects of his capital sentencing hearing and the constitutionality of the Illinois death penalty statute. For the reasons that follow, the petition is denied.

 I. Factual Background and Procedural History

 On April 1, 1978, Williams was arrested for the murder, aggravated kidnapping, rape and armed robbery of Linda Goldstone. During police interrogation, Williams initially denied having committed the crimes, but after the police told Williams that his story did not check out, he gave a detailed confession. In People v. Williams, 97 Ill. 2d 252, 262-64, 454 N.E.2d 220, 224-25, 73 Ill. Dec. 360 (1983), cert. denied, 466 U.S. 981, 104 S. Ct. 2364, 80 L. Ed. 2d 836 (1984), the Illinois Supreme Court summarized the events as stated by Williams and corroborated at the capital sentencing hearing by evidence and testimony:

The victim, Mrs. Linda Goldstone, on March 30, 1978, was employed at Northwestern Memorial Hospital in Chicago as an instructor in the Lamaze method of childbirth. On that evening, as she was alighting from her car in the victinity [sic] of the hospital, she was approached by the defendant and robbed at gunpoint. He made her undress from the waist down. He then forced her into his car and, it appears, took her to a shop owned by his father. There he bound her hands and feet.
He then forced her into the trunk of his car. With Mrs. Goldstone in the trunk, the defendant picked up his sister at work and drove her home. He then drove the victim to a motel, forced her inside and raped her.
On the next day, with Mrs. Goldstone bound and locked in the trunk of the car, the defendant appeared at a suburban court where charges of aggravated kidnaping, rape and armed robbery were pending against him. The case was continued, and the defendant then drove to visit a friend, Nettie Jones, at her apartment. While he was there, people at the area heard cries for help coming from the trunk of his auto. Someone notified the police of the incident. The defendant drove away from a crowd that had gathered and proceeded to a tavern, where he visited other friends.
Early that evening, the defendant checked into another motel. He forced Mrs. Goldstone into the motel and again raped her. Later, he forced her back into the trunk and picked up his niece at a friend's house and drove the niece home. As he had done the day before, he drove his sister home from work and spent the evening visiting various taverns with friends.
In the meantime, police were searching for the defendant's car. The victim's husband, Dr. James Goldstone, a physician, after learning that his wife had not appeared for class that evening, notified the police of her absence. The victim's car was found by Northwestern University security officers. Early the following morning, Dr. Goldstone received a phone call from his wife in which she told him that she would be home soon. He heard a voice in the background say, "Shut up bitch, tell him you'll be home in about an hour." The victim asked Dr. Goldstone if he had called the police, and he told her to tell the man whose voice he had heard that he had not informed the police.
Officers investigating the incident at Jones' apartment obtained the license number of the car and learned that the defendant had visited Jones. The police searched the area for the auto without success and periodically watched the defendant's home, but the car was not located.
On April 1, at 6 a.m., the defendant released the victim from the trunk of the auto. He gave her $ 1.25 and instructed her to take a bus home and not to call the police. He then drove off. The victim, ignoring his instructions, ran to the porch of a nearby house for help. The person who came to the door refused to allow her to enter, but he did call the police. The defendant, who had only driven around the block to see whether his instructions would be obeyed, returned and ordered the victim off the porch. He then took her to an abandoned garage and killed her, shooting her in the chest and head. There was medical evidence that the victim had been beaten once or more during her captivity.
The defendant was arrested at his home that afternoon while he was washing the trunk of his car.

 At his arraignment in the Circuit Court of Cook County, Williams pled not guilty. As pretrial discovery proceeded, Williams filed a number of motions, including a motion to suppress the confession. Judge James E. Strunck denied the majority of Williams' key motions. On October 9, 1979, Williams changed his plea to guilty to one count each of murder, aggravated kidnapping, rape and armed robbery. The prosecution then formally requested a capital sentencing hearing, and Williams submitted his jury request.

 The sentencing hearing began on November 19, 1979. In the eligibility phase, *fn1" the jury found that the state had proven beyond a reasonable doubt the existence of four statutory aggravating factors -- that Williams murdered Linda Goldstone in the course of three other felonies and that he murdered an eyewitness to his crimes. At the conclusion of the aggravation/mitigation phase, in which Williams testified on his own behalf, the jury unanimously found that there were no mitigating factors sufficient to preclude the imposition of the death sentence. On March 14, 1980, the court accordingly sentenced Williams to death.

 As provided by para. 9-1(i) of the death penalty statute, Williams appealed directly to the Illinois Supreme Court. The court rejected each of Williams' claims and affirmed the guilty plea and sentence. Id. Williams next filed a post-conviction petition in the Circuit Court of Cook County under Ill.Rev.Stat. ch. 38, para. 122-1, et seq. (1983). The trial court denied the petition without a hearing and the Illinois Supreme Court affirmed. People v. Williams, 109 Ill. 2d 391, 488 N.E.2d 255, 94 Ill. Dec. 429 (1985), cert. denied, 478 U.S. 1022, 106 S. Ct. 3340, 92 L. Ed. 2d 744 (1986). Having exhausted all available state remedies in satisfaction of 28 U.S.C. § 2254(b), Williams filed this habeas petition raising all of the federal claims that he argued in the state courts as well as some new claims. Illinois has stayed execution pending the final disposition of this petition.

 II. Constitutionality of Williams' Guilty Plea

 The Cook County Public Defender's Office assigned four attorneys to represent Williams. They initially agreed that Williams should continue to plead not guilty and proceed to trial. *fn2" The defense team hired a psychologist and psychiatrist to assist in jury selection and to assess both Williams' competency to stand trial and the merits of an insanity defense. After the trial court denied key defense motions, including the motion to suppress the confession, defense counsel determined that there was little chance of acquittal and that Williams would be best served by a guilty plea and a strong defense at the capital sentencing hearing. They accordingly persuaded Williams to enter a guilty plea. In his affidavit, Williams describes the day before trial:

[One of my attorneys] came to visit me. He continued to press me to enter a guilty plea. I did not want to do that. He repeatedly told me that I was hurting my family by holding out, that the only way to spare them was to plead and that I would die if I did not plead. Finally, against my will, I agreed to enter a guilty plea.

 One of the attorneys describes their method of persuasion:

As a response to our client's position, the four of us as well as [the psychologist] attempted to pursuade [sic] the defendant that a plea of not guilty would be a mistake. These conversations were not discussions of trial strategy, nor were they reminiscent of the numerous occasions in which I pursuaded [sic] a client to plead guilty to accept the plea bargain being offered by the State. In this case the psychological pressure and the sophisticated tactics used with Hernando Williams to convince him to adopt our approach were unlike any other conversations I ever had with any other client. Also, it goes without saying, that in this case there were no plea bargaining offers from the State.
All of the psychiatric and psychological information which had been gathered and developed by [the doctors] was used by me and my associates to compel Mr. Williams to accept our point of view. This constituted a unique form of coercion. We took advantage of our client, maximizing the use of the information we had gathered for a purpose other than which it was intended. Our strategy was developed to accommodate us and not our client. There is no question that during this period (which lasted over a year) we did not act in accordance with our client's wishes. Rather, we used every means available to force him to change his plea.
Mr. Williams ultimately gave in to this extreme pressure shortly before the trial was to begin.

 Williams claimed in the state courts that he entered the plea unintelligently because he was unaware that the death penalty was an option after a guilty plea. The Illinois Supreme Court denied the claim, finding that the trial court told him numerous times that he could be subject to the death penalty, and there was no evidence that he was informed otherwise. Williams, 97 Ill.2d 252 at 268-70, 454 N.E.2d 220 at 227-28, 73 Ill. Dec. 360. In this petition, Williams raises four new challenges to his plea: his trial attorneys coerced him into entering the guilty plea; their conduct constituted ineffective assistance of counsel; appellate counsel was incompetent in failing to raise these claims on direct appeal; and post-conviction counsel was similarly incompetent in failing to raise them in the post-conviction petition.

 Ordinarily, a federal habeas petitioner forfeits the right to challenge a conviction or sentence on grounds not raised in the state courts. United States ex rel. Villa v. Fairman, 810 F.2d 715, 717 (7th Cir. 1987). We will, however, excuse the forfeiture of a claim if the petitioner demonstrates cause for failure to raise the claim and prejudice therefrom, Reed v. Ross, 468 U.S. 1, 11, 104 S. Ct. 2901, 2908, 82 L. Ed. 2d 1 (1984), or that the alleged constitutional errors seriously undermined the guilt determination. Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 2650, 91 L. Ed. 2d 397 (1986). These principles apply in capital cases as in any other. Riley v. Wainwright, 778 F.2d 1544, 1551 (11th Cir. 1985), cert. denied, 479 U.S. 871, 107 S. Ct. 240, 93 L. Ed. 2d 165 (1986).

 In seeking to overcome waiver, Williams contends that appellate and post-conviction counsel's incompetence should excuse his failure in the state courts to challenge the plea as coerced. Ineffective assistance of appellate counsel may excuse a procedural default if it rises to the level of a violation of the Sixth Amendment; that is, counsel's performance fell below an objective standard of professional competence, and the defendant was thereby prejudiced. Murray, 106 S. Ct. at 2646; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Appellate counsel's decision not to raise these challenges to the guilty plea was reasonable in that claims requiring further factual findings are cognizable only in post-conviction proceedings. See generally People v. Edwards, 74 Ill. 2d 1, 383 N.E.2d 944, 23 Ill. Dec. 73 (1978), cert. denied, 442 U.S. 931, 99 S. Ct. 2862, 61 L. Ed. 2d 299 (1979). Accordingly, that decision does not excuse waiver. *fn3"

 On the other hand, post-conviction counsel's decision not to raise these challenges was unreasonable. The affidavits indicate that post-conviction counsel believed incorrectly that Williams could not raise the claims in collateral proceedings because he did not raise them on direct appeal. An Illinois court would have addressed the merits of Williams' new challenges to his plea. See, e.g., People v. Coultas, 75 Ill. App. 3d 137, 139 n. 1, 394 N.E.2d 26, 27 n. 1, 31 Ill. Dec. 110 (5th Dist. 1979). Thus, Williams procedurally defaulted his claims solely on account of post-conviction counsel's mistaken interpretation of Illinois law. *fn4" Nevertheless, post-conviction counsel's ineffective assistance provides neither an independent basis for habeas relief nor cause to excuse Williams' procedural default. Since there is no constitutional right to post-conviction counsel, Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987), there is no right to competent counsel when the state elects to provide a lawyer in post-conviction proceedings. Cf. Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 1301, 71 L. Ed. 2d 475 (1982) (holding that in the context of a discretionary appeal before a state's highest court, "[since] [the defendant] had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel . . ."). Moreover, Williams waived any claim of ineffective post-conviction counsel when he failed to raise it on the appeal of the denial of his post-conviction petition. Accordingly, Williams waived these claims by failing to raise them in the state courts and has not demonstrated cognizable cause to excuse the procedural default.

 B. Williams' Coerced Plea and Ineffective Trial Counsel Claims

 In any event, the claim of coercion lacks merit. While threats or misrepresentations may invalidate a guilty plea, United States v. Jordan, 870 F.2d 1310, 1316 (7th Cir. 1989), citing Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970), the competent advice of counsel, however strongly presented, does not constitute undue coercion or ineffective assistance of counsel. Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir.), cert. denied, 429 U.S. 849, 97 S. Ct. 136, 50 L. Ed. 2d 122 (1976). The attorneys concluded on the merits and in their best judgment that a guilty plea was in Williams' best interest. There is no reason to question that conclusion. Williams' detailed confession survived the motion to suppress and a conviction seemed inevitable. The attorneys did not promise Williams that a guilty plea would spare him the death penalty. They talked in probabilities, not certainties. Williams' characterization to the contrary notwithstanding, the affidavits suggest nothing more than verbal persuasion. The attorneys never threatened Williams or his family. Williams declared numerous times during the plea proceedings that his plea was voluntary and not the product of any threats or promises from the prosecution, his attorneys or prison officials. Transcript of Proceedings ("Tr.") V. 3, 15-16. A strong presumption of veracity accompanies such statements in open court. Politte v. United States, 852 F.2d 924, 931 (7th Cir. 1988); Worthen v. Meachum, 842 F.2d 1179, 1183-84 (10th Cir. 1988).

 Our conclusion that Williams' plea was voluntary and intelligent is further reinforced by the record of the plea proceedings as a whole. The objective facts on the record prevail over the defendant's later recollection of subjective feelings of coercion. United States ex rel. Robinson v. Housewright, 525 F.2d 988, 991-92 (7th Cir. 1975). Generally, the court receiving a plea must be reasonably assured that the defendant understands the nature of the charges to which he is admitting guilt, the most severe sentence to which a plea exposes him and that the waiver of certain constitutional rights -- including the right to a jury trial, the privilege against compulsory self-incrimination and the right to confront one's accusers -- accompanies the plea. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 466-67, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969); Worthen, 842 F.2d at 1182. Williams admitted to all of the facts underlying the charges against him. The court stated that the death penalty accompanied the murder charge. Williams' attorney evidenced an understanding to this effect when he stated that admissions to the facts in no way constituted a stipulation to the existence of any aggravating factors for sentencing purposes. Finally, the court informed him of each of his trial rights, and Williams indicated that he understood them and was willing to waive them. In short, the trial court conducted an extensive and constitutionally-satisfactory plea proceeding before accepting Williams' plea, and Williams has not given us reason to question the voluntariness of that plea. *fn5"

 III. Constitutionality of the Sentencing Hearing

 A. The Prosecution's Use of Victim Impact Evidence

 During both phases of the sentencing hearing, the court allowed certain testimony that Williams characterizes as inadmissible victim impact evidence under Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987). A probation officer recited the following portion of a presentence investigation report:

 Tr. 4377. Dr. Goldstone, the victim's husband, testified as to Linda Goldstone's educational background and explained her decision to become a Lamaze instructor. The court allowed Aline Krone and her mother to testify about a previous rape for which Williams was convicted. During closing arguments, the prosecution referred to Linda Goldstone's work, how the selection of her profession evidenced a commitment to life and that her husband loved her. *fn6"

 Throughout the sentencing hearing and on appeal, Williams challenged this evidence and these arguments as irrelevant, inflammatory and prejudicial. By raising it in those terms, Williams fairly alerted the state courts to his claim and did not waive it for federal habeas purposes. Booth was decided four years after Williams completed his direct appeal. The rationale underlying Booth is identical to the arguments Williams presented in his state court challenges. Accordingly, the objections Williams raised preserved the federal basis of his claim. Gilmore v. Armontrout, 861 F.2d 1061, 1068 n. 14 (8th Cir. 1988), cert. denied, 490 U.S. 1114, 104 L. Ed. 2d 1037, 109 S. Ct. 3176 (1989). See also Evans v. Cabana, 821 F.2d 1065, 1070 (5th Cir. 1987) (trial counsel's objections to victim impact evidence on the grounds of relevancy and prejudice did not constitute ineffective assistance of counsel since there was little more that the attorney could argue in a trial held six years before the Booth decision). See generally Gill v. Duckworth, 653 F. Supp. 877, 878 (N.D.Ind.), aff'd without opinion, 836 F.2d 552 (7th Cir. 1987).

 1. Retroactivity of the Booth Decision

 As a threshold challenge to Williams' claim, respondents contend that Booth should not apply in this collateral attack on the sentencing hearing since Booth was decided three years after Williams' conviction and death sentence became final after direct review in 1984. *fn7" The United States Supreme Court has held that a "new rule" of federal constitutional law cannot apply in cases on collateral review, including capital cases, unless the rule comes within one of two narrow exceptions. Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990). See also Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989); Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). *fn8" The threshold question for our consideration therefore is whether Booth is a new rule within the meaning of the Supreme Court's evolving standard of retroactivity.

 Not long ago, the Supreme Court concluded that a particular decision will not be considered a new rule if it "simply applied a well established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law." Yates v. Aiken, 484 U.S. 211, 108 S. Ct. 534, 537, 98 L. Ed. 2d 546 (1988), quoting Desist v. United States, 394 U.S. 244, 263, 89 S. Ct. 1030, 1041, 22 L. Ed. 2d 248 (1969) (Harlan, J., dissenting). *fn9" More recently in Butler v. McKellar, 494 U.S. 407, 110 S. Ct. 1212, 1217, 108 L. Ed. 2d 347 (1990), the Court provided an additional "functional" gloss to the new rule inquiry: "The 'new rule' principle . . . validates reasonable, good faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." If the question whether prior well established precedent should apply to a new factual scenario is "susceptible to debate among reasonable minds," then such an application will be regarded as a "new rule" and not given retroactive effect unless it falls within one of the two narrow exceptions. Id. The Supreme Court, however, has yet to provide a clearer framework for demarcating the line between a closely analogous application of facts to constitutional principle and an application that is susceptible to debate among reasonable minds. Indeed, the Court has acknowledged that "in the vast majority of cases, . . . where the new decision is reached by an extension of the reasoning of previous cases, the inquiry will be more difficult." Butler, 110 S. Ct. at 1216.

 The Supreme Court has articulated and reiterated a variety of formulations of the inquiry. A case announces a "new rule" when it breaks new ground or imposes a new obligation on the States or the Federal Government. Teague, 109 S. Ct. at 1070; Penry, 109 S. Ct. at 2944; Butler, 110 S. Ct. at 1216. "Put differently, and, indeed, more meaningfully for the majority of cases, a decision announces a new rule 'if the result was not dictated by precedent existing at the time the defendant's conviction became final.'" Butler, 110 S. Ct. at 1216 (quoting Teague, 109 S. Ct. at 1070; Penry, 109 S. Ct. at 2944). See also Saffle, 110 S. Ct. at 1260 ("Our task is to determine whether a state court considering [the defendant's] claim at the time of his conviction would have felt compelled by existing precedent to conclude that the rule [sought] was required by the Constitution.") The fact that a court says that a rule falls within a prior precedent's "logical compass," or that it is "controlled" or "governed" by prior decisions is not conclusive on the question. Butler, 110 S. Ct. at 1217. Though these various formulations may direct the inquiry as to whether a "new rule" has been announced, the guidance they provide does not offer a conclusive basis for that determination. Thus, we shall examine the outcome of several Supreme Court decisions on the issue.

 In Yates, decided shortly prior to the Teague line of cases, the Court unanimously determined that Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985), did not announce a new rule but was "merely an application of the principle" that governed the Court's decision in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Yates, 484 U.S. at 216-217, 108 S. Ct. at 538. The Court determined that the doctrine against burden-shifting presumptions set out in Franklin falls within Sandstrom's proscription against conclusive presumptions or instructions which shift the burden of persuasion in criminal trials. Thus, the South Carolina Supreme Court's determination to the contrary in Yates was not the sort of decision that would have been susceptible to a debate among reasonable minds, at least as far as the unanimous United States Supreme Court was concerned.

 More problematic, however, is how, or whether, the reasonable interpretation standard may be applied when only a majority of the Court renders the decision sought to be given retroactive effect. For example, in Penry, the petitioner sought a rule which would require a Texas court, upon request, to give jury instructions that would make it possible for the jury to give effect to mitigating evidence of mental retardation and abused background. A five-member majority of the Court found that the rule Penry sought was not a new rule because it was dictated by the more general principle announced in Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) that

a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to circumstances of the offense that mitigates against imposing the death penalty.

 Penry, 109 S. Ct. at 2946 (O'Connor, Brennan, Marshall, Blackmun, Stevens). *fn10" Yet, four Justices dissented, believing that the application of prior precedent sought and obtained in Penry constituted a "new rule" and therefore should not be given effect. Assuming the dissent reflected an interpretation of existing precedent about which reasonable minds may differ, then under the reasonable interpretation standard, the mere fact of a dissent within the court should itself have trumped the substantive determination of the majority that the rule sought is not a "new rule." That, however, was not the holding of Penry.

 Similar to Penry, by 1983, when the Illinois Supreme Court ruled on Williams' direct appeal, it was well settled that the state cannot submit evidence that is not relevant to the character of the defendant and the circumstances of the crime for which the defendant faces the death penalty. Booth merely applied this principle to a specific type of evidence -- victim impact evidence. "The Supreme Court's decision in Booth. . . merely reiterates what the Supreme Court has previously held: The Eighth Amendment requires that sentencing in a capital murder case must focus on the individualized character of the defendant and the particular circumstances of the crime." Thompson v. Lynaugh, 821 F.2d 1080, 1082 (5th Cir.), cert. denied, 483 U.S. 1035, 108 S. Ct. 5, 97 L. Ed. 2d 794 (1987) (finding counsel's failure to raise the issue not excused merely by virtue of the fact that Booth was decided later). We therefore find, consistent with Penry, that even though only a majority of the court may have rendered the decision in Booth, it nonetheless may be construed as not having announced a new rule. The fact that there was disagreement in the court as to the validity of a specific application of a more general principle does not in and of itself mean that the rule adopted was either a break with prior law or not compelled by existing precedent.

 Further, even assuming that Booth did announce a "new rule," the rationale underlying Booth and the precedent upon which it is based goes directly to the "truthfinding" function of the capital sentencing hearing -- whether death is the appropriate punishment -- such that the rule in Booth, as an application of the landmark cases that preceded it, would properly come within the second exception to the non-retroactivity doctrine. That exception "is for 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, 110 S. Ct at 1257 (citations omitted). The Court in Booth found that the victim impact evidence about which the defendant had no reason to be aware is totally irrelevant to the sentencing process. Booth, 107 S. Ct at 2533. The admission of victim impact evidence "creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner." Id. Because such evidence may inflame the jury and divert it from deciding the case on relevant evidence concerning the crime and the defendant, its admission necessarily calls into question the accuracy of the sentencing decision as being "based on reason rather than caprice or emotion." Id. at 2536, quoting Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1204, 51 L. Ed. 2d 393 (1977) (opinion of Stevens, J.). The rule in Booth was announced precisely because the admission of victim impact evidence would ...

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