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THOMAS v. GRAMLEY

December 10, 1996

WALTER L. THOMAS, Petitioner,
v.
RICHARD B. GRAMLEY, Warden, Pontiac Correctional Center, Respondent.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Walter L. Thomas petitions for a writ of habeas corpus, 28 U.S.C. § 2254, raising several grounds in support of overturning his convictions, returned after a jury trial in Illinois state court, and the resulting death sentence. Primarily, he argues that his counsel provided ineffective assistance at the capital sentencing phase of the state trial court proceedings. For the reasons we discuss below, we deny the petition.

 I. Background

 In March 1988, after a jury trial, the petitioner was convicted of murder, aggravated arson, arson, and burglary. At trial, the State offered evidence to prove the following facts. *fn1" On November 26, 1986, Thomas's job with a cleaning company landed him at the Aurora, Illinois home of Sophie Darlene Dudek. Dudek was in the business of selling perfume, and she stored a large quantity of the merchandise in her garage. According to Thomas's confession, he entered her garage, opened a perfume bottle, and decided to take it. However, Dudek then entered the garage, and according to Thomas, she tried to prevent him from leaving. Thomas then used a knife he was carrying to repeatedly stab Dudek; she died instantly after one of the stabs severed her spinal cord. To cover-up the crime, Thomas poured perfume on the victim, in her car, and throughout the garage, and started a fire. An investigation by the Aurora police led to Thomas's arrest.

  After the jury found Thomas guilty, the state court held a sentencing hearing, which concluded with the same jury voting to impose the death penalty for the murder conviction. In 1990, the Illinois Supreme Court upheld the conviction and death sentence, People v. Thomas, 137 Ill. 2d 500, 561 N.E.2d 57, 148 Ill. Dec. 751 (Ill. 1990) (Thomas I), and Thomas then unsuccessfully sought post-conviction relief in state court. In 1995, the Illinois Supreme Court affirmed the denial of post-conviction relief. People v. Thomas, 164 Ill. 2d 410, 647 N.E.2d 983, 207 Ill. Dec. 490 (Ill. 1995) (Thomas II). Presently before this court is Thomas's petition for a writ of habeas corpus, in which he designates numerous grounds for overturning the conviction and death sentence. After discussing under what circumstances an erroneous state court decision authorizes issuance of a writ of habeas corpus, we address the arguments in turn.

 II. Section 2254(d)(1)

 As amended by Chapter 153 of the Antiterrorism and Effective Death Penalty Act, § 2254 contains a new subsection that provides:

 
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
 
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
 
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

 § 2254(d)(1),(2). In Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), *fn2" the Seventh Circuit decided that the Act does not directly specify whether Chapter 153 applies to pending cases, *fn3" and thus, after rejecting the argument that § 2254(d) would operate retroactively if generally applied to pending cases, concluded that § 2254(d) is presumptively applicable. Id. at 863-65. The Seventh Circuit then held that applying § 2254(d) to the petitioner in Lindh would not attach new legal consequences to events prior to the Act's signing. Id. at 865-67. In accordance with Lindh, and because Thomas fails to identify relevant events or actions specific to him to which the Act would attach new legal consequences, we must apply § 2254(d) in reviewing Thomas's petition.

 Section 2254(d)(1) in pertinent part forbids granting a writ of habeas corpus based on a claim decided in state court unless the decision was "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or was "an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States." Lindh interprets the first clause to provide guidance to a state court when answering legal questions; the clause dictates the source of legal principles and the clarity with which those principles must be established. In answering legal questions, a state court must follow "legal principles articulated by the Supreme Court," id. at 870 (emphasis added)--not those legal rules whose "real" source is a lower federal court, id. at 869--and a state decision must comply with "clearly established" principles, id.

 We do not take Lindh to declare, however, that when we measure the state court's decision, either for adherence to clearly established law or for reasonableness in application, we are confined to the discussion or reasons that appear in the state court opinion. Prior to the passage of the Act, a federal court might disagree with the state court's reliance on specific cases or with some or all of the state court's articulated reasons for rejecting a particular claim advanced by the petitioner, and yet the federal court could still conclude that the petitioner was not "in custody in violation of the Constitution" by relying on different cases or by supplying different reasons. § 2241(c)(3). Similarly, in those instances where the state court did not refer to any authority or set forth any reasons in rejecting a fairly presented claim, the federal court entertaining the habeas petition remained free to go beyond the state court opinion and resolve the issue. Although Lindh's interpretation of § 2254(d) instructs us "to take into account the care with which the state court considered the subject," 96 F.3d at 871, neither § 2254(d) nor Lindh indicates that we may examine only the state court's discussion. Section 2254(d) authorizes issuance of the writ only when the state court adjudication "resulted" in a "decision" of the kinds specified in § 2254(d)(1). And the court in Lindh itself examined a pure question of law not discussed by the Wisconsin Supreme Court's opinion. Compare id. at 874-76 (holding that state supreme court's "decision" was not contrary to clearly established law even though state supreme court did not address issue) with State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (Wis. 1991) (no actual discussion of whether Confrontation Clause applies to dispositional phase of bifurcated trial). Similarly, when scrutinizing the state supreme court's answer to a mixed question of law and fact, the court in Lindh supplied an additional reason not mentioned in the state court opinion for concluding that the state court's decision was reasonable. Compare, 96 F.3d at 977 (noting that there existed no evidence that psychiatrist changed diagnosis after purported motive for bias arose) with 468 N.W.2d at 177-83.

 In sum, while we will independently interpret the Constitution, we cannot issue the writ unless the state court decision is contrary to law clearly established by the Supreme Court, § 2254(d)(1), or involves an unreasonable application of such law to the facts, § 2254(d)(2). But we remain free to look beyond those cases and reasons relied upon by the state court opinion in determining whether the standards for issuance of the writ set forth in § 2254(d)(1) have been met. With these principles in mind, we turn to Thomas's petition.

 III. Discussion

 A. Ineffective Assistance of Counsel--Sentencing Phase

 Thomas's primary claim is that his trial counsel, Harriet D. Gustafson, rendered ineffective assistance at the sentencing phase by failing to adequately present mitigating evidence. *fn4" In order to prevail on a claim of ineffective assistance, at a minimum the petitioner must show (1) counsel's representation at sentencing failed to meet an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's unprofessional representation, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993). Under the Illino's statute governing Thomas's capital sentencing proceeding, the jury could consider "any mitigating factors which are relevant to the imposition of the death penalty" in deciding whether the mitigating factors were sufficient to preclude the death sentence, Ill. Rev. Stat. ch. 38, P 9-1(c), and one juror's vote against the death penalty could prevent a capital sentence, see P 9-1(g); Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989). Among the nonexclusive list of mitigating factors is that "the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance." P 9-1(c)(2).

 In identifying his trial attorney's failures to present mitigating evidence, the petitioner first argues that Gustafson failed to uncover evidence regarding his "serious psychological problems." Pet.'s Br. at 3-5. *fn5" Thomas refers mainly to a variety of mental and psychological evaluations generated in 1971-72 during his brushes with the juvenile court system. Pet.'s Exs. 10-24. As detailed at the sentencing hearing and described by the Illinois Supreme Court, Tr. 3523-33, *fn6" 647 N.E.2d at 992-93, Thomas committed two aggravated assaults, an armed robbery, and an aggravated battery in 1969 and 1970. *fn7" Some of the evaluations do portray Thomas as "emotionally disturbed," Ex. 15, as having "a very real and serious psychological problem," Ex. 18, and perhaps a "schizoid tendency," Ex. 11. In addition, some evaluations noted that he "projected elements of conflict with the opposite sex," Ex. 11 at 2, "has developed some very bizarre feelings about women," Ex. 18, and "must be regarded as quite dangerous, specifically from a sexual point of view," id. As for the possibility that Thomas suffered from organic brain damage, while some evaluations voiced suspicions, Exs. 18, 21, 22, none definitively made that diagnosis, and others thought it unlikely, Exs. 11, 15, 16. Finally, evaluations placed Thomas's intelligence as a teenager at "low average," Ex. 10 at 1, or "dull normal," with intelligence quotients in the low 80s, Ex. 11 at 2, see also Ex. 12, 13, 15, 22.

 In addition to these evaluations of Thomas while a teenager, the petitioner also submits reports written in 1992 by a neuropsychologist, Linda Wetzel, and a psychologist, Michael Levins. Wetzel fixed Thomas's IQ at 85, Ex. 8 at 2, and based on several tests, concluded that Thomas has "slowed mentation," "an effect of non-specific organic brain impairment," id. at 3. After reviewing the teenage evaluations, several affidavits from Thomas's family and friends, and other documents, and after interviewing the petitioner, Levins concluded that (1) Thomas had a diminished capacity for self-control, and even suffered from "Post Traumatic Stress Disorder" at the time of the murder, due to childhood abuse inflicted upon him by his mother, Ex.7 at 5; (2) Thomas had a diminished capacity to know right from wrong due to his parents' encouragement of aggressive behavior, id. at 7-8; (3) "it is quite possible" that Thomas suffers from a mental defect, id. at 8-9; (4) Thomas has a very high potential" for rehabilitation, id. at 9; and (5) Thomas is not a danger to other prisoners, id. at 10.

 Rather than investigate and present evidence that showed Thomas as psychologically disordered, his defense attorney took a different approach at the sentencing hearing. In a deposition taken for Thomas's state postconviction petition, Gustafson explained her mitigation strategy: prove that law enforcement officials had "promised his mother they were not going to kill him if he confessed to them. He confessed to them, and here are some people that can tell you about a Walter Thomas who was not a cruel, vicious person but a very kind, hard-working good person, so don't kill him." Gustafson Dep. at 19-20, 29 (Pet.'s Ex. 1). To those ends, Gustafson called Thomas's mother to testify about a police officer's promise of leniency, Tr. 3584-86, and also presented witnesses who testified that Thomas worked diligently, volunteered at church functions, participated in community youth activities, and acted respectfully toward others. Tr. 3557-59 (testimony of cousin Mae Ellen Russell); Tr. 3562-66 (testimony of landlord Noreen Wallace). Additionally, a friend and former roommate, Issac Jackson, explained that Thomas dated a variety of women, and was "outgoing" and nonviolent. Tr. 3572. Thomas's former girlfriend, Karen Newton, also testified that she had never seen Thomas act violently towards her, her daughters, or anyone during the seven years that she knew him, including the approximately five years during which they lived together and up to the time of his arrest. Tr. 3577.

 In assessing the competence of Gustafson's presentation of mitigation evidence, the Illinois Supreme Court adhered to "clearly established" legal principles determined by the United States Supreme Court. See 647 N.E.2d at 987-88, 991. Citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the Illinois Supreme Court accurately identified the first inquiry: whether trial counsel's representation "fell below an objective standard of reasonableness." 647 N.E.2d at 991. And even more specifically, the state supreme court relied on Strickland for the following principles:

 
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. . . . And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the ...

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