Id. at 870. While the Seventh Circuit in Lindh acknowledged the difficulty in formulating a definition of "unreasonable," the court did suggest "that when the constitutional question is a matter of degree, rather than of concrete entitlements, a 'reasonable' decision by the state court must be honored. By posing the question whether the state court's treatment was 'unreasonable,' § 2254(d)(1) requires federal courts to take into account the care with which the state court considered the subject." Id. at 871.
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.
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.
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.
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,
647 N.E.2d at 992-93, Thomas committed two aggravated assaults, an armed robbery, and an aggravated battery in 1969 and 1970.
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 defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.
Strickland, 466 U.S. at 691 (cited and quoted in part by Thomas, 647 N.E.2d at 991).
More significantly, the Illinois Supreme Court's application of the governing law to the facts of Thomas's case--that is, the court's answer to a mixed question of law and fact, see Strickland, 466 U.S. at 698--cannot be deemed "unreasonable." In Gustafson's deposition testimony--which the state courts credited and which the petitioner has failed to undermine
--she explained that discussions with Thomas, his mother, and Karen Newton regarding "emotional disturbance as a mitigating factor" indicated to her that there was none, Gustafson Dep. at 44; Thomas II, 647 N.E.2d at 991, and according to the Illinois Supreme Court, Gustafson stated that Thomas and his mother "were very cooperative in his defense," id. ; Gustafson Dep. at 33; cf. id. at 32, 30 (counsel spoke "numerous times" to Thomas's mother, who helped identify mitigation witnesses). Because Gustafson felt there was "no reason to believe" Thomas suffered from an emotional disturbance, no independent expert was hired to examine him. Id. at 45; Thomas II, 647 N.E.2d at 991. Additionally, based on information provided by Thomas, the county circuit court's probation department prepared a presentence report that stated, "The defendant has never had any type of psychiatric or psychological testing, evaluation, [or] counseling." Presentence Report at 3, 6 (quoted by Thomas II, 647 N.E.2d at 991).
In determining that counsel had not rendered constitutionally deficient assistance, the Illinois Supreme Court detailed, and relied on, these facts, as well as other considerations, 647 N.E.2d at 991. Given the propriety of considering "the defendant's own statements or actions," Strickland, 466 U.S. at 691, when assessing Gustafson's investigation of Thomas's psychological history, the Illinois Supreme Court reasonably concluded that counsel performed competently. Thomas gave no indication to counsel that he was suffering, or had suffered, from a psychological disorder. Nor did his mother and former girlfriend--close supporters of Thomas--suggest that he had a psychological problem. Although the petitioner points out that a mitigation report prepared for the sentencing noted that he "had difficulty with dates and time sequencing," spent his childhood in a troubled home, and had problems with both oral and written expression while a student, Pet.'s Br. at 6, Gustafson's own face-to-face conversations with Thomas and his mother led her to accept their denials of any past or present emotional disturbance. Rather than an emphasis on Thomas's dismal adolescence, counsel's discussions with Thomas and potential mitigation witnesses pointed to an entirely different mitigation strategy: portrayal of Thomas as a well-adjusted, productive member of society. Under Lindh's construction of § 2254(d)(1), regardless of our plenary view of the reasonableness of counsel's performance, we may grant the writ only if we could deem the Illinois Supreme Court's decision unreasonable.
After reviewing the law, facts,
and reasons discussed in Thomas II, we conclude that the state supreme court reasonably decided that counsel's investigation of Thomas's psychological history did not fall below an objective standard of reasonableness.
Likewise, the Illinois Supreme Court reasonably applied the law to the facts underlying the petitioner's other claims attacking counsel's performance at sentencing. Aside from the argument concerning the failure to investigate Thomas's psychological history, the petitioner contends that counsel should have investigated and presented evidence showing that Thomas's parents, including his alcoholic father, physically abused him. Pet. at 16; Pet.'s Br. at 8. The Illinois Supreme Court's discussion of this contention pointed out that the state trial court "found that 'all sources of information reveal that the Defendant came from a supportive family.'" 647 N.E.2d at 993. Additionally, the Illinois Supreme Court referred to Thomas's presentence report; based on an interview with Thomas, the report stated, "The defendant described a family that was very 'close knit and supportive.'" Presentence Report at 7 (quoted by 647 N.E.2d at 993).
Although it is not clear whether the state supreme court was simply affirming the trial court's factual finding that the petitioner's family was supportive, the pertinent holding
is the Illinois Supreme Court's rejection of the argument that counsel was ineffective because "trial defense counsel failed to investigate and present other key mitigation facts." 647 N.E.2d at 993. We cannot deem that holding unreasonable for reasons similar to our rejection of the petitioner's attack on counsel's investigation of his psychological history. Again, counsel received no indication that further investigation into Thomas's family life would have yielded mitigation evidence; indeed, the evidence available to Gustafson led her to portray Thomas in a positive light.
Next, the petitioner complains that counsel failed to inform the jury that he is "the loving father of a young daughter." Br. at 8. However, as the Illinois Supreme Court emphasized, Thomas told Gustafson "that he didn't want [the mother of his child] to testify." Gustafson Dep. at 33; 647 N.E.2d at 993. Accordingly, the state supreme court's rejection of this argument was reasonable.
In addition, Thomas maintains that counsel failed to investigate and discover other obstacles he faced while a child, specifically, living in a poverty-stricken, gang-ridden neighborhood. Br. at 8. However, although the petitioner directed the Illinois Supreme Court's attention to the alleged child abuse he suffered, Thomas failed to advance any argument concerning his family's low-income status and neighborhood. See Pet.'s Postconv. App. Br. at 13 (Resp.'s Ex. C-2); Pet.'s Postconv. App. Reply Br. at 8-9 (Resp.'s Ex. C-3). Accordingly, the Illinois Supreme Court considered neither this argument nor the alleged supporting facts, and we will not now consider this defaulted ground.
In sum, we conclude that the Illinois Supreme Court's rejection of the petitioner's ineffective assistance at sentencing claim was consistent with clearly established legal principles and did not involve any unreasonable applications of the governing law to the facts. Thomas's arguments as to purported failures to investigate were reasonably rejected by the state supreme court, as were Thomas's contentions that counsel had failed to develop a mitigation strategy, and that counsel's purported missteps cumulatively constituted ineffective assistance. Accordingly, the petitioner's claim of ineffective assistance of counsel at sentencing does not provide a ground for habeas relief.
B. Prosecutorial Misconduct at Sentencing
Thomas next argues that his death sentence should be overturned because the prosecutor allegedly made impermissible racial remarks during the sentencing hearing; the petitioner is a black male and the victim was a white woman. Primarily, the petitioner emphasizes the following remarks made during the prosecutor's opening statement at the sentencing hearing:
And Detective Langston, one of the things that he will tell you, he questioned Walter Thomas as regarding the prior sexual offenses and he told Walter Thomas, one or both of these cases with young women, just like Nancy T[.], and both those cases young white women and both of those cases involved knives.