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September 4, 1990

MICHAEL NEAL, Respondent

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR



 After a jury trial in an Illinois Circuit Court, Simpson was convicted of murdering William Drake ("Drake") and sentenced to 32 years in prison. Drake had been found lying in the street on October 29, 1980, *fn1" dead of a gunshot wound to the lower back. No one had witnessed the shooting or had seen anyone (including Drake) near the scene at the time of the shooting. Police were unable to find any fingerprints at the scene, and the murder weapon was never recovered.

 Not long after the shooting, investigators from Chicago Police Department Area 3 spoke to Simpson's wife Tecumseh Berry ("Berry"), her mother Velma Lee ("Lee") and Berry's son about the shooting and some confrontations between Simpson on the one hand and Berry and Drake on the other -- matters about which the police had been informed. Testimony at trial revealed that Berry and Simpson had been married on August 7, 1979 while Simpson was in prison. Upon his release in August 1980 Simpson moved in with Berry, who was living with her mother and son. At some point -- whether before or after the marriage or his release from prison is unclear -- Simpson got wind of the fact that Berry had been having an affair with Drake, whom Berry had known for 16 or 17 years. In spite of Berry's insistence that the affair with Drake had ended when Simpson was released, Simpson suspected that the relationship had continued and angrily confronted Berry about Drake on several occasions. Evidence was presented at trial that Simpson had become violent during at least one of those confrontations, had threatened Berry with a knife and had threatened to "get" Drake.

 About two weeks before Drake's death, Simpson and Berry were considering divorce. When Simpson entered Berry's mother's home on October 16 or 17 to retrieve his belongings and move out he came upon Berry, Lee and Drake talking in the living room. In spite of the state of his own relationship with Berry, Simpson crudely told Drake to terminate his relationship with Berry. When Drake suggested that they discuss the matter out of the others' presence, Simpson responded that he would "see you later" and left to gather his possessions. That was their last known meeting before Drake's death.

 Detective Nick Crescenzo ("Crescenzo") was one of the initial investigators assigned to the Drake homicide. After hearing that story, Crescenzo and other investigators tried to locate Simpson for questioning. When they failed to find him they issued a stop order so that other officers would know that Simpson was wanted for questioning in case he was later located. That occurred at about 3:30 p.m. on December 28 when Simpson and a companion were arrested for shoplifting. Simpson was taken to the Sixth District (Area 2) Police Station, charged with theft and fingerprinted. When asked to identify himself, he gave the name "Oscar Williamson" and lied about his birth date. At about 10 p.m. the officers holding Simpson uncovered his true identity and the stop order issued by the Area 3 investigators. Police and Simpson tell widely divergent stories about what happened next.

 According to police witnesses, at about 11:30 p.m. Area 3 Detectives William Moser ("Moser") and Thomas Brankin ("Brankin") arrived at the Sixth District to take Simpson back to the Area 3 station house. When Simpson asked why he was being moved, the detectives told him he was wanted for questioning and gave him the Miranda-prescribed advice of rights (R.27-29, 56, 69). *fn2" Simpson made no statement at that time. Sometime between midnight and 1 a.m. the next morning (December 29) Simpson was taken to the interview room in the Area 3 station house and was left handcuffed to a ring in the wall. *fn3" Although Crescenzo was working the midnight to 8 a.m. shift on December 29, he testified to having been too busy with other matters to question Simpson. *fn4" He testified that he looked in on Simpson twice during the night and, finding Simpson asleep across two chairs, did not disturb him (R.446-47, 449).

 Detectives did not begin questioning Simpson until 9:30 a.m. December 29. When Detectives McWeeny and James Higgins ("Higgins") arrived for the morning shift at 8:30 a.m. that day, they reviewed the police reports relating to the investigation of Drake's death and spoke with Crescenzo about the information that had been gathered linking Simpson to that death (R.87-99, 450-52). Crescenzo told McWeeny and Higgins of his interviews with Barry and Barry's mother and son about Simpson's threats against Drake. As it was the end of his shift, Crescenzo then left.

 McWeeny and Higgins testified that Simpson was still asleep when they entered the interrogation room. They woke him up and took him to the washroom, and almost immediately after they again advised Simpson of his Miranda rights he voluntarily confessed to killing Drake (R.101-06). Simpson allegedly explained to the officers that after the October 16 or 17 confrontation he arranged to meet Drake at 11 p.m. October 29 at the street-corner where Drake's body was found. When Simpson again insisted that Drake stop seeing Berry, Drake responded that he had known Berry longer than Simpson had. Unpersuaded, Simpson reminded Drake that Berry was his wife. When Drake asked if he should take that as a threat, Simpson told him to "take it any way he wanted to." Finally, Simpson told the detectives that he shot Drake in the back when Drake turned to reach into the door of his van. Simpson then fled.

 After hearing that story, McWeeny and Higgins called for an Assistant State's Attorney to take Simpson's statement (R.107). Assistant State's Attorney Dane Cleven ("Cleven") arrived between noon and 1 p.m. and again interviewed Simpson without McWeeny and Higgins present. Simpson told Cleven the same story as before but refused to sign a written confession.

 Simpson's description of post-arrest events was very different. Simpson and the person he was with when he was arrested for shoplifting, Zelda Stanley ("Stanley"), testified that Simpson had injected himself with a "speed ball" -- a mixture of heroin and cocaine -- about an hour and a half before their December 28 arrest (R.284-85, 462-63). Simpson further testified that he had a $ 150 to $ 300 per day heroin habit (R.290) and was enrolled in a substance abuse program where he received methadone treatments (R.286-90). Simpson testified that he informed police of his need for methadone but was told he would not receive any help until he confessed to killing Drake. *fn5"

 In support of his claim to having undergone heroin withdrawal, Simpson called Steven McGuire ("McGuire"), clinical director of the Community Health Program where Simpson had received drug rehabilitation treatment, who testified that a heroin addict such as Simpson would begin to experience symptoms of withdrawal about four to eight hours after his last fix, with the symptoms becoming worse with time so that 16 to 24 hours after last taking heroin he would have an elevated heart rate, would be perspiring, jittery and nervous, and would become nauseated, vomit and experience diarrhea (R. 418). Simpson testified to experiencing all these symptoms -- plus hot and cold flashes -- during questioning (R.310-11, 314-15). Simpson's sister testified that she saw Simpson at that time and that he appeared to need his methadone treatment (R.257, 262). Stanley, who was with Simpson's sister, also said that Simpson "was sweating and shaky and he had a quiver in his voice" (R.471).

 Simpson also claims that Moser and Brankin interrogated him almost continuously "from 10:30 p.m. to dawn" (P.Mem. 3) on the night of December 28-29. During that interrogation, Simpson claims:

Investigator Moser falsely told Petitioner that he had witnesses that could place him at the scene of the crime on the night of the shooting. Investigators Moser and Brankin told Petitioner that he could give a statement of self-defense consistent with the witnesses' statements. After Petitioner refused to make any statements he was slapped, his eyeglasses flew off of his face and broke, he was strip-searched and Inspector Moser threatened that he would remain handcuffed to the wall until he was ready to cooperate with them.

 Simpson further testified that Brankin took from Simpson a phone book that contained a card with Simpson's lawyer's phone number. Simpson testified that he asked for the book back and was refused. When he then requested that his lawyer be present during questioning and asked for his lawyer's phone number from the card, Moser and Brankin again refused and continued the questioning (R.295-96, 370-71). Moser and Brankin deny ever questioning Simpson, let alone threatening him or striking him. They further testified that Simpson never asked to see a lawyer and denied having taken a phone book from him (R.31-33, 46-47, 58-59, 70-73).

 Similarly, although Crescenzo testified that he was too busy to do more than look in on Simpson while he slept, Simpson claims Crescenzo continued the grilling begun by Moser and Brankin (P.Mem. 3):

Petitioner had been left alone and handcuffed to the wall for two hours when Detective Crecenzo [sic] continued the interrogation of Petitioner on December 29, 1980. He asked if Petitioner was ready to give a statement and upon Petitioner's refusal again left him handcuffed to the wall coming in periodically to inquire as to whether Petitioner would talk. Petitioner repeatedly asked to speak with an attorney and to use the restroom. His requests were denied.

 Simpson testified that at that point -- approximately 6 a.m. -- Crescenzo drove Simpson back to the Sixth District. According to Simpson he was kept there only about fifteen minutes before Crescenzo again loaded him back into a car and returned him to the interview room at Area 3 (R.305-06). At that point P.Mem. 3-4 picks up with the rest of Simpson's testimony:

At approximately 8:30 a.m. on December 29, 1980 petitioner was unhandcuffed and allowed by Detectives McWeeny and Higgins to use the restroom, after which he was taken to a different room and again handcuffed to the wall. The detectives attempted to convince Petitioner to offer a statement of self-defense. Petitioner was ill with withdrawal symptoms *fn6" and had not eaten or drank [sic] anything since his initial arrest. Petitioner informed the detectives of his addiction and requested methadone. Detective McWeeny promised Petitioner that he would be taken to a nearby hospital for his methadone treatment as soon as he gave the self-defense statement. After futilely requesting an attorney and attempting to complain to the Assistant State's Attorney regarding the police officers' conduct, it was then that Petitioner, still handcuffed to the wall, exhausted, sick and desperate, agreed to make any statement necessary in order to receive his methadone treatment. Petitioner then gave an oral statement which he knew to be false and therefore refused to sign any writings.

 Simpson claims that the detectives questioned him for hours before Cleven finally gave him a Miranda warning, that he never made a statement to McWeeny and Higgins (R.379) and that his statement to Cleven (1) was the fruit of an illegal arrest because police lacked probable cause to arrest him for the Drake homicide and (2) was given involuntarily due to police misconduct. At the suppression hearing Moser, Brankin, McWeeny, Higgins and Cleven all claimed Simpson never told them of any withdrawal symptoms, nor were any symptoms evident. In addition, they all deny having struck him, having denied him an opportunity to speak to a lawyer or having pressured him in any way to confess to killing Drake (R.104-06).

 That swearing contest was resolved when the trial court explicitly found the testimony of Simpson, his sister and Stanley incredible and that of the officers credible (Supp.R.II 40-41):

I simply do not believe that Dane Cleven went into that room with a waste paper basket, apparently into which the defendant had vomited by his testimony seven times, and no one made notice of it. I do not believe that the defendant said to him that he wanted a lawyer and the Assistant State's Attorney made no note of it. I do not believe that Dane Cleven would have lied in that matter so in this instance for the purposes of this motion I resolve the issue of credibility in favor of the prosecution. I do not believe that the defendant was struc[k] during the interrogation. I do not believe that he refused to answer questions or that he asked for a lawyer at any point.

 On that basis the trial court denied Simpson's motion to suppress his confessions, and the jury later convicted.

 Before the sentencing Simpson's trial attorney moved for a new trial on all the grounds now asserted for habeas relief except ineffective assistance of counsel, and Simpson presented his own pro se motion for new trial based on the claimed ineffectiveness of his trial counsel (Supp.R.II 487-501, R.844-55). All those motions were denied by the trial court.

 On appeal that denial was upheld as to all the grounds for a new trial except the ineffective assistance of counsel, as to which the Appellate Court ordered a new hearing and the appointment of new counsel to help Simpson present his case for ineffective assistance ( People v. Simpson, 129 Ill. App. 3d 822, 473 N.E.2d 350, 84 Ill. Dec. 949 (1st Dist. 1984)). At that second hearing the trial court again denied Simpson's ineffective assistance challenge (see generally Supp.R.III and Supp.R.IV). That denial was upheld on appeal (People v. Simpson, No. 85-424, slip op. (1st Dist. 1987)), and the Illinois Supreme Court denied leave to appeal further.

 Simpson first argues that police lacked the probable cause required by the Fourth Amendment *fn7" to arrest him for Drake's murder when they transported him to the Area 3 station house. As a result he claims that any confessions made there are fruits of that illegal arrest and should have been suppressed under the exclusionary rule of such cases as Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) and Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). Neal confronts Simpson's challenge head-on by insisting that the detectives' conversations with members of Simpson's family, Simpson's threats against Drake and the fact of his having given a false name and birth date upon his arrest for shoplifting established probable cause for an arrest on suspicion of murder.

 This Court need not decide who has the better of that dispute. It is well established that neither the fact that a conviction followed an illegal arrest ( United States v. Crews, 445 U.S. 463, 474, 63 L. Ed. 2d 537, 100 S. Ct. 1244 (1980)) nor the fact that it was based on evidence obtained pursuant to an illegal arrest ( Stone v. Powell, 428 U.S. 465, 494, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976)) *fn8" provides grounds for federal habeas corpus relief. Under Stone, even if Simpson's arrest had been illegal, even if his confessions were "fruits" of that arrest and even if the state court should have applied the exclusionary rule to keep those confessions from the jury (428 U.S. at 494 (footnotes omitted)):

where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

 That result flows from Stone's holding that the exclusionary rule's primary purpose, deterrence of police misconduct, must be balanced against society's substantial interest in bringing to justice those whose criminal culpability is established by evidence whose reliability is not contested. In balancing those interests Stone determined that while the illegality of a seizure does not diminish the reliability of resulting confessions and therefore the state's interest in sustaining the conviction remains high, on the other side of the balance the chance that police would be deterred from acting unconstitutionally by the possibility of reversal in a federal habeas corpus proceeding becomes vanishingly small. Rather than inflicting a heavy toll on state prosecutions for what was perceived as a small return, Stone simply removed redundant Fourth Amendment challenges from the scope of habeas corpus review.

 Stone, id. at 494 n. 36 refers to Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963) on the question whether the state provided an opportunity for full and fair litigation. Townsend, id. at 316 said this about the "full and fair hearing" standard:

Even if all the relevant facts were presented in the state-court hearing, it may be that the fact-finding procedure there employed was not adequate for reaching reasonably correct results. If the state trial judge has made serious procedural errors (respecting the claim pressed in federal habeas) in such things as the burden of proof, a federal hearing is required. Even where the procedure employed does not violate the Constitution, if it appears to be seriously inadequate for the ascertainment of the truth, it is the federal judge's duty to disregard the state findings and take evidence anew. Of course, there are procedural errors so grave as to require an appropriate order directing the habeas applicant's release unless the State grants a new trial forthwith. Our present concern is with errors which, although less serious, are nevertheless grave enough to deprive the state evidentiary hearing of its adequacy as a means of finally determining facts upon which constitutional rights depend.

 Here Simpson has not questioned the procedures used at the suppression hearing, and the record reveals no inadequacy either in that hearing or in the Illinois Appellate Court's review of the Circuit Court's decision. Both tribunals (1) reviewed the evidence presented at the hearing, (2) applied the proper rule of law ( People v. Moody, 94 Ill. 2d 1, 9, 445 N.E.2d 275, 279, 67 Ill. Dec. 795 (1983) ("an objective inquiry into the reasonableness of a police officer's conduct based on the evidence he has")) and (3) made findings summarized this way by the Appellate Court (129 Ill. App. 3d at 830, 473 N.E.2d at 356):

The trial court, following a hearing at which Detective Higgins and the defendant testified, determined that the officers possessed probable cause to arrest the defendant for the homicide at the time he was transported to the Area 3 stationhouse for questioning. The court took into account the officers' knowledge from discussions with the defendant's wife and family that the defendant had made threats of death or serious bodily harm to Drake on several prior occasions and their knowledge that the defendant had given a false name and birthdate to the police when he was arrested for shoplifting.

 Thus even if this Court were to believe that the state courts had applied the exclusionary rule incorrectly, their decisions "are not subject to collateral review merely because the federal courts would decide the issue differently" ( United States ex rel. Maxey v. Morris, 591 F.2d 386, 389 (7th Cir. 1979)). Simpson's Fourth Amendment challenge must fail.


 Simpson claims that his confessions on December 30 were not voluntary because (1) he was undergoing heroin withdrawal during questioning and (2) his will was overborne by the actions of police officers during the interrogation. At the suppression hearing the trial court unambiguously found Simpson's testimony incredible, and ...

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