decision was not erroneous." 606 N.E.2d at 1127 (citation omitted). Clearly, the state court refused to address the merits of the claims that Emerson raised for the first time in his post-conviction petition because of a procedural bar. Emerson's argument to the contrary is completely at odds with the language and reasoning of the Illinois Supreme Court's opinion.
Emerson next argues that, even if the state court found these claims defaulted, such a ruling was contrary to state law with regard to two of his claims of ineffectiveness: Sammons's failure to conduct an effective cross-examination of Ray, and his refusal to call Emerson to testify on his own behalf. Petitioner argues that these claims could not have been brought on direct review because (1) they involve trial counsel's omissions and (2) they require an investigation of facts outside the record. Thus, Emerson contends, because these issues were properly raised for the first time in his state post-conviction petition, we should have ruled on their merits.
As discussed above, the general rule in Illinois is that a petitioner's failure to raise a claim on direct appeal results in a bar to consideration of the claim in a post-conviction proceeding. See People v. Erickson, 161 Ill. 2d 82, 641 N.E.2d 455, 458, 204 Ill. Dec. 231 (Ill. 1994), cert. denied, 115 S. Ct. 1956, 131 L. Ed. 2d 849 (1995). However, where consideration of the claim would require reference to matters outside the record, this procedural bar may be relaxed. Id.; People v. Thomas, 164 Ill. 2d 410, 647 N.E.2d 983, 988, 207 Ill. Dec. 490 (Ill. 1995) (ineffective assistance claim based on counsel's failure to recognize racial implications of case not barred in post-conviction petition because counsel only admitted ignorance in a deposition that "could not have been obtained or included in the trial record for defendant's direct appeal").
However, the bar will not be relaxed if the claims were apparent from materials that were contained in the trial record, see Erickson, 641 N.E.2d at 459 (claim that expert witness presented false credentials was not cognizable on post-conviction review because falsity of qualifications was apparent from cross-examination at trial), or from materials that could have been placed in the record. See People v. Jones, 109 Ill. 2d 19, 485 N.E.2d 363, 364-65, 92 Ill. Dec. 552 (Ill. 1985), cert. denied 475 U.S. 1090, 106 S. Ct. 1481, 89 L. Ed. 2d 735 (1986). For example, in Jones the Illinois Supreme Court held that a defendant was barred from raising a claim of ineffectiveness at sentencing because the information needed to assess the claim was contained in psychological reports that were on file with the circuit court at the time of the direct appeal. 485 at 365. Although these files were not part of the appellate court record, "every ground for ineffectiveness that defendant had properly raised was apparent from the original appellate record or could have been supplemented to that record under [Illinois Supreme Court] Rule 329." Id. (emphasis added). Because this information was available to the defendant at the time of the direct appeal and could have been added to the record, the court refused to consider the merits of the claim. Id.
Under these principles we conclude that Emerson's claims could have been brought on direct appeal. Emerson contends that Sammons should have more vigorously cross-examined Ray regarding a possible motive to lie, and points to Ray's cross-examination at the first trial for support of this claim. However, this line of questioning was apparent from the transcript of the first trial, and thus was apparent to petitioner at the time of his direct appeal. The transcript of the first trial was in the trial court record, and was available to Emerson and his appellate counsel. Cf. Thomas, 647 N.E.2d at 988 (procedural bar not found because evidence of counsel's ineffectiveness could not have been discovered or added to record at time of direct appeal). Although not part of the record on direct appeal of his second conviction, it appears as if this transcript could have been added to the appellate court record. See Ill. S. Ct. R. 329 ("If the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of the appellant."); see Jones, 109 Ill. 2d 19, 485 N.E.2d 363, 364-65, 92 Ill. Dec. 552; cf. People v. Smith, 197 Ill. App. 3d 88, 554 N.E.2d 730, 731-32, 143 Ill. Dec. 795 (Ill. App. Ct.) (permitting state to supplement record to show missing entry on docket), app. denied, 133 Ill. 2d 568, 149 Ill. Dec. 333, 561 N.E.2d 703 (Ill. 1990); People v. Reese, 121 Ill. App. 3d 977, 460 N.E.2d 446, 450, 77 Ill. Dec. 390 (Ill. App. Ct. 1984) (public defender could have supplemented record on appeal with transcript of co-defendant's separate jury trial, and thus the failure to do so precluded consideration of the transcript on appeal). Accordingly, as petitioner was alerted to this claim at the time of his appeal, and we find no reason justifying his failure to supplement the appellate record with the transcript of the first trial, this claim was procedurally defaulted.
So too with the claim that Emerson was not called to testify. Petitioner again points to the transcript of his first trial, but as discussed above, the appellate record could have been supplemented with this document. Moreover, at several points during his trial Emerson stated that he would not participate in the case or tell his side of the story. 883 F. Supp. at 230-31 & nn. 4-5. Emerson's knowledge of the testimony he would have given had he taken the stand, along with his refusal to participate in the proceedings, militates against any relaxation of the procedural bar. See People v. Silagy, 116 Ill. 2d 357, 507 N.E.2d 830, 835, 107 Ill. Dec. 677 (Ill.) (rejecting argument that claim of ineffectiveness could not have been raised on direct appeal, since possible mitigation evidence was known at trial but defendant refused to allow counsel to present it), cert. denied, 484 U.S. 873, 108 S. Ct. 212, 98 L. Ed. 2d 163 (1987). Accordingly, as this claim could have been raised on direct appeal, it was properly held to be deemed defaulted.
B. Sammons's Pretrial Preparation
Emerson next attacks our conclusion that his trial counsel provided him with sufficient representation to satisfy the standards of Strickland v. Washington, 466 U.S. 668, 685, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Petitioner contends that Sammons could not have rationally decided to forgo an alibi defense without interviewing the potential witnesses, and therefore his decision to present a different defense was not objectively reasonable. However, as discussed in our prior opinion, 883 F. Supp. at 236-239, Sammons's decision to forgo interviewing possible alibi witnesses was not unreasonable. Emerson only points to his mother and ex-wife as potential sources of alibi testimony, but as interested witnesses they would not have provided persuasive evidence of an alibi. Moreover, their testimony would not have precluded the possibility that Emerson attacked the two victims, since they could not account for Emerson's whereabouts during the time of the robbery. Id. at 238 n.17. In sum, this problematic testimony from the defendant's two interested family members would not have been a strong peg on which to hang an alibi defense. Cf. Sullivan v. Fairman, 819 F.2d 1382, 1391-92 (7th Cir. 1987) (finding counsel inadequate for failing to investigate several disinterested witnesses when only other defense was based solely on a relative's marginal testimony).
Contrary to petitioner's implicit assertion, the Sixth Amendment does not mandate that "defense counsel must track every lead or must personally investigate every evidentiary possibility before choosing a defense and developing it." Id. at 1392. Under the facts of this case, counsel reasonably decided not to pursue a problematic theory of defense, and instead sought to discredit the state's main witness. Such a decision does not amount to constitutional error, and therefore our denial of this claim was proper.
C. Request for an Evidentiary Hearing
Petitioner next argues that we incorrectly denied a portion of his petition without conducting an evidentiary hearing. Emerson contends that a genuine factual dispute exists as to whether Sammons's actually had the "theory of the case" proffered by the respondent. He points to several ways in which he believes Sammons did not prepare the case consistent with this theory, and asserts that because resolution of this issue will turn largely on Sammons's credibility, a hearing must be held.
Federal district courts are required to hold an evidentiary hearing if a habeas corpus petitioner can show cause for his failure to develop the necessary facts in the state court record, and actual prejudice resulting from the omission of these facts from the record. Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 1721, 118 L. Ed. 2d 318 (1992); Resnover v. Pearson, 965 F.2d 1453, 1456 (7th Cir. 1992), cert. denied, 113 S. Ct. 2935, 124 L. Ed. 2d 685 (1993).
We need not delve into this cause-and-prejudice analysis, however, when "the facts essential to consideration of the constitutional issues are already before the court." Matta-Ballesteros v. Henman, 896 F.2d 255, 258 (7th Cir. 1990) (quotation omitted), cert. denied, 498 U.S. 878, 112 L. Ed. 2d 169, 111 S. Ct. 209 (1990). As stated in our prior opinion, Sammons's state of mind is of no import to the question of whether he performed in a constitutionally adequate manner. 883 F. Supp. at 242 n.21. Rather, because we found his performance to be objectively reasonable in light of the evidence against his client, the existence of a prior trial transcript, and the weaknesses of petitioner's proffered alibi defense, we need not determine whether Sammons's actually had the exact thought processes that respondent asserts he did. All that must be ascertained is whether counsel "required the prosecutions's case to survive the crucible of meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 656, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). We can answer that question by looking at Sammons's performance, and having answered it in the affirmative we properly denied Emerson's request for an evidentiary hearing.
D. Sammons's Closing Argument
Finally, Emerson reargues that his trial counsel conceded his client's guilt before the jury in closing argument. We dismissed this claim in our prior opinion, reasoning that counsel had reasonably sought to limit Emerson's exposure to the death penalty by highlighting the lack of evidence against Emerson on the armed robbery count, as contrasted with the evidence against him on the murder count. 883 F. Supp. at 240. Petitioner challenges our reliance on Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991), pointing out that the attorney in Underwood argued that there was a lack of evidence on the greater count, whereas Sammons argued that there was insufficient evidence on the lesser charge of armed robbery. However, we recognized this distinction in our prior ruling. Nonetheless, we found the reasoning of Underwood applicable to the instant case because, regardless of which charge was "greater," Sammons made his remarks in an attempt to avoid the harshest potential sentence for his client. 883 F. Supp. at 240 n.20. Emerson has not provided us with any additional arguments as to why this holding was incorrect, and we decline to revisit it here.
Accordingly, petitioner's motion to amend this portion of our judgment is denied.
For the reasons set forth above, petitioner's motion to alter or amend our judgment is denied. It is so ordered.
MARVIN E. ASPEN
United States District Judge
Dated July 21, 1995