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December 27, 1994

ANDRE JONES, Petitioner,
GEORGE WELBORN, Warden, and ROLAND BURRIS, Attorney General of Illinois, Respondents.

The opinion of the court was delivered by: WILLIAM D. STIEHL

 STIEHL, District Judge:

 This matter is before the Court on a petition for writ of habeas corpus filed by petitioner pursuant to 28 U.S.C. § 2254. Petitioner is in state custody under two sentences of capital punishment. The record before the Court is extensive, including the petition, answer, briefs and oral argument of the parties, and the transcripts, briefs and complete factual record compiled in the state court proceedings. The Court now decides the merits of this § 2254 petition.


 On June 8, 1979, petitioner Andre Jones was indicted in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, on three counts of murder, three counts of armed violence, and three counts of armed robbery, stemming from the killings of Richard Stoltz, Samuel Nersesian, and Debra Brown on April 30, 1979. Indicted with Jones was a codefendant, Freddie C. Tiller, Jr. The public defender was appointed to represent both Tiller and petitioner, but was forced to withdraw from representation of petitioner on July 20, 1979, and Robert Gagen was appointed by the state court to represent petitioner.

 On August 23, 1979, petitioner withdrew his pleas of not guilty and pleaded guilty to the three murder counts. At the time of his plea, the trial judge advised petitioner of his right to a trial by jury and to confront witnesses; the right to be presumed innocent and the state's obligation to prove him guilty beyond a reasonable doubt; the right to put on a defense and to call witnesses to testify on his behalf; and the rights to remain silent, and to consult with his attorney. (R., Vol. I, C-64 to C-66). In addition, the judge fully apprised petitioner of his possible sentence, including the death penalty. (Vol. I, C-59 to C-64). In fact, the judge stated:

Also for each one of these murders, if you enter a plea of guilty, I want you to understand that if certain factors are present, you could be sentenced to death, on each one of them . . . . If the factors which are necessary . . . are present, I wouldn't hesitate to sentence you to death. I wouldn't want to. I have never wanted to sentence anybody to death, but I wouldn't hesitate because that would fall under the general covering of part of my duties, carry [sic] out the law in the State of Illinois.

 (Id. at C-60). Further:

THE COURT: And I want you to understand, and believe me when I tell you, that I had hoped that this particular chore would never come to me but it does and I won't shirk from my responsibilities. So if there's any thought in your mind that by pleading guilty I might give you natural life, I want to erase that thought from your mind. Because if they prove the factors like in the commission of a felony crime described by the Statute as Armed Robbery being one of them, two murders being another one, I won't hesitate to sentence you to death. You understand that?

 (Id. at C-62-63). The court also explored whether the petitioner had decided to enter his guilty pleas as a result of any improper coercion.

THE COURT: Has anyone used any threats to get you to come in here and indicate through your attorney that you would enter a plea of guilty, anybody threaten you or said, if you do it we'll let you do this, we'll recommend that. Any kind of promises or threats whatsoever? Did anyone make them to you?

 (Id. at C-67-68). The judge asked petitioner if he had any questions.

THE DEFENDANT: Yes, sir. Well, there's one thing, if I understood Mr. Kuehn correctly, he said that the death penalty will be asked for even on a plea of guilty, if I'm not mistaken.
THE COURT: That's correct.
THE DEFENDANT: I understand the natures of the offenses which I have been charged with. That's it sir.

 (Id. at C-69). The court accepted Jones' pleas of guilty and adjudged him guilty on all three counts. On October 5, 1979, a hearing was held on petitioner's motion to waive the jury for the sentencing. (Id., C-87-93). Petitioner, who took the stand at the hearing, clearly knew of his eligibility for the death penalty, and that without a jury at the sentencing phase, the judge would be imposing the penalty. On October 11, 1979, Gagen moved for a continuance of the sentencing and for a psychiatric examination of petitioner based on a six-page statement which he had made concerning his participation in the slayings of an elderly East St. Louis couple, the Wallaces. The Wallace homicides were unrelated to the charges to which he had plead. Gagen sought the psychiatric exam because he was concerned about the content of the statement. (Id., C-97). Gagen further indicated that he would be filing a motion in limine to prohibit the state from using the six-page statement. (Id., C-97-98 ).

 Petitioner's sentencing hearing was held on April 14 and 15, 1980, although the record is silent as to the reason for the change to a jury hearing. Defense counsel moved in limine to keep out evidence of plaintiff's confession. (Vol. IV, 16). At the sentencing hearing, the state presented evidence, inter alia, of the confession that Jones had given as to the Wallace murders. (Vol. V, 343). Further, extensive evidence was offered as to the Wallace murders by the St. Clair County coroner and East St. Louis police officer John Thurman.

 Before the confession was admitted, Gagen objected that reference to the confession would violate petitioner's Sixth Amendment right to counsel. (Vol. V, 401-02 ). The trial judge overruled the motion on the grounds that petitioner voluntarily gave his confession. Petitioner did not testify at the hearing. Outside the hearing of the jury, the decision not to testify, and the fact that Gagen advised him to testify, were placed on the record. (Vol. V, 411-12).

 The jury returned a verdict of death by electrocution on each of the three murder convictions. A direct appeal was taken, and the convictions were affirmed, but the death sentence on the Stoltz murder was vacated, while the other two sentences were affirmed. People v. Jones, 94 Ill. 2d 275, 447 N.E.2d 161, 68 Ill. Dec. 903 (Ill. 1982), cert. denied, 464 U.S. 920, 78 L. Ed. 2d 264, 104 S. Ct. 287 (1983) (Jones I). Petitioner filed two post-conviction petitions in state court, and the St. Clair County Circuit Court held an evidentiary hearing on December 22, 1987, before deciding the second petition. Both petitions were denied, and the denials were affirmed on appeal. See People v. Jones, 109 Ill. 2d 19, 485 N.E.2d 363, 92 Ill. Dec. 552 (Ill. 1985), cert. denied, 475 U.S. 1090, 89 L. Ed. 2d 735, 106 S. Ct. 1481 (1986) (Jones II); People v. Jones, 144 Ill. 2d 242, 579 N.E.2d 829, 162 Ill. Dec. 15 (Ill. 1991), cert. denied, 112 S. Ct. 3038 (1992) (Jones III). Petitioner then filed his petition for relief under 28 U.S.C. § 2254 in this Court. The petition raises several grounds for habeas relief:

 1. Denial of the constitutional right to effective representation of counsel at the plea, sentencing, direct appeal, and first state post-conviction petition.

 2. Violation of the Sixth Amendment right to counsel.

 3. Section 9-1(e) of the Illinois Death Penalty Statute is invalid for failing to establish a standard for admission of evidence higher than relevance.

 4. Certain information admitted during the sentencing hearing violated due process.



 The Sixth Amendment right to counsel guarantees a criminal defendant the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). Petitioner argues that he was denied the constitutional right to effective assistance of counsel at his plea, sentencing, and appeal. Throughout his plea and sentencing, petitioner was represented by court-appointed counsel, Robert Gagen. The Illinois Supreme Court appointed David Hoffman to represent petitioner on the direct appeal of his sentence. Before examining the merits of petitioner's arguments, the Court will clarify and briefly define petitioner's claims and the applicable standards.

 The Sixth Amendment right of effective assistance of counsel applies to a criminal defendant's trial, sentencing, and the first appeal of right. Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987). In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the Supreme Court articulated a two-part test applicable to ineffective assistance claims: the petitioner must demonstrate (1) his counsel's deficient performance and (2) that counsel's errors were prejudicial. On direct appeal of petitioner's plea and sentence, Hoffman failed to argue that Gagen's representation during the plea and sentencing was constitutionally ineffective. Because Hoffman failed to raise the issue of Gagen's ineffectiveness, the Illinois Supreme Court correctly held that the issue was in default, and barred petitioner from raising the claim. Jones II, 485 N.E.2d at 365; See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). As a result, petitioner now claims that Hoffman provided ineffective assistance of appellate counsel. In other words, petitioner must first establish a successful ineffective assistance of appellate counsel claim before he can assert a claim that Gagen's representation at the plea or sentencing was constitutionally ineffective.

 Hoffman testified at the post-conviction hearing that he believed that petitioner had been deprived of effective assistance of counsel at trial. However, Hoffman concluded that the issue could not be raised on direct appeal because he felt that the record was insufficient to demonstrate prejudice under Strickland. Specifically, Hoffman thought that the record lacked the evidence necessary to completely show what mitigating evidence could have been presented at trial. Petitioner argues that Hoffman had no strategic reason for failing to present this issue on direct appeal, and that Hoffman should have known that he could supplement the record with affidavits. Petitioner concludes that Hoffman's misunderstanding of the law constitutes ineffective assistance of counsel. However, petitioner's claim that Hoffman rendered ineffective assistance of appellate counsel also fell into default, because the issue was not raised in the first state post-conviction proceeding. While there is no constitutional right to effective counsel in post-conviction proceedings, Finley, 481 U.S. at 555, a claim of ineffective assistance of counsel is not waived by an attorney's failure to raise his own ineffectiveness. People v. Gaines, 105 Ill. 2d 79, 473 N.E.2d 868, 85 Ill. Dec. 269 (Ill. 1984), cert. denied, 471 U.S. 1131, 86 L. Ed. 2d 282, 105 S. Ct. 2666 (1985). Because Hoffman also represented petitioner during the first post-conviction motion, he was not required to then raise a claim for his own ineffectiveness during the appeal.

 The Court must apply the Strickland test to petitioner's claim of ineffective assistance of appellate counsel. To summarize, petitioner claims that Hoffman was constitutionally ineffective by failing to raise Gagen's ineffectiveness. Thus, if Gagen's representation at the plea or sentencing was not constitutionally defective, petitioner cannot establish prejudice in his claim against Hoffman, and as a result, cannot establish a claim of ineffective assistance of appellate counsel. To determine whether petitioner was prejudiced by Hoffman's failure to raise Gagen's ineffectiveness on direct appeal, the Court must first decide whether such claims based on Gagen's representation would have been successful. The Court will first examine petitioner's claims of Gagen's ineffective assistance during the plea, and will then turn to the claims concerning Gagen's representation at the sentencing.


 1. Plea Stage

 The two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985). To establish a successful claim of ineffective assistance of counsel under Hill and Strickland,

first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

 Strickland, 466 U.S. at 687.

 The first prong of the Strickland test requires petitioner to show that Gagen's representation fell below an "objective standard of reasonableness." Id. at 687-88. Strickland expressly decried the use of "detailed rules" in judging the reasonableness of counsel's performance. Id. at 688. This analysis must be performed on a case-by-case basis, and the Supreme Court has proclaimed that "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The Court expounded upon this deferential standard of review, stating:

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case.

 Id. at 689 (citations omitted). The reasonableness of counsel's performance can also be determined or substantially influenced by the defendant's own statements or actions. Id. at 691.

 To satisfy the second, or prejudice prong of Strickland in a claim for ineffective assistance of counsel during a plea, petitioner "must show that there is a reasonable possibility that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. Of course, in order to show prejudice, an ineffective assistance claimant must show more than a subjective belief that he would not have pleaded guilty but for counsel's errors. United States v. Cronic, 466 U.S. 648, 658 n.21, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984) ("It is for this reason that we attach no weight to respondent's . . . later expression of dissatisfaction (with counsel's performance).") The Hill Court offered guidance in applying the prejudice standard:

In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

 474 U.S. at 59. Petitioner must establish both unreasonable performance and prejudice, therefore the Court need not grade the reasonableness of counsel's performance if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. Strickland, 466 U.S. at 697.

 Petitioner alleges that Gagen provided ineffective assistance of counsel during the plea stage in many ways: failed to conduct discovery or file written motions; withdrew written motions filed by petitioner's previous counsel; did not conduct investigations into the facts, a possible insanity defense, or petitioner's psychological or drug problems; did not subpoena witnesses; generally failed to prepare for trial; failed to bargain for plea concessions; and by wrongfully encouraging petitioner to plead guilty. Petitioner has offered a litany of ineffective assistance of counsel claims, and the Court will examine these claims individually and by considering the totality of the evidence and circumstances surrounding each claim. Strickland, 466 U.S. at 695; United States ex rel. Simmons v. Gramley, 915 F.2d 1128 (7th Cir. 1990). The Illinois Supreme Court previously decided these claims in Jones III, 579 N.E.2d at 833-42. However, in this § 2254 action, the Court must independently review the Illinois Supreme Court's ...

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