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.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
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.
B. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
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.