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Porter v. Gramley

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


April 25, 1997

ANTHONY PORTER, PETITIONER-APPELLANT,

v.

RICHARD B. GRAMLEY, WARDEN, PONTIAC CORRECTIONAL CENTER, RESPONDENT-APPELLEE.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 4111 Charles R. Norgle, Sr., Judge.

Before FLAUM, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

ARGUED JANUARY 14, 1997

DECIDED APRIL 25, 1997

Anthony Porter was sentenced to death in 1983 for a double murder committed in Chicago in 1982. Porter's case reached the Illinois Supreme Court on direct appeal in 1986 and on post-conviction review in 1995, but Porter was unsuccessful both times. A federal district court refused to grant Porter a writ of habeas corpus last year, and Porter now appeals that judgment. He asserts that he was denied his right to effective assistance of counsel and his right to an impartial jury at his state trial. After disposing of numerous procedural objections, we reach the merits of both claims. We conclude that neither an evidentiary hearing nor a writ of habeas corpus is warranted, and we therefore affirm the District Court's judgment.

I. History

The facts of this case are recounted in detail in the Illinois Supreme Court's prior opinions and in Justice Marshall's dissent from the U.S. Supreme Court's denial of a writ of certiorari. See Porter v. Illinois, 479 U.S. 898 (1986) (Marshall, J., dissenting from denial of certiorari); People v. Porter, 647 N.E.2d 972 (Ill. 1995); People v. Porter, 489 N.E.2d 1329 (Ill. 1986). Rather than repeating those accounts in full, the following is a summary of the trial evidence and subsequent events most relevant to Porter's petition for habeas relief.

In the wee hours of August 15, 1982, Jerry Hilliard and Marilyn Green were shot and killed in Chicago's Washington Park. Two men who were drinking alcohol and swimming in a park pool that morning were the main witnesses to the events that transpired. One of the men, Henry Williams, got out of the pool around 1 a.m.; he was immediately robbed at gunpoint by Porter, whom both Williams and his fellow swimmer, William Taylor, knew from around the neighborhood. Porter fled, but while Williams was subsequently putting on his clothes, he saw Porter standing on bleachers near the pool and pointing a gun at Hilliard, who was sitting with Green on the bleachers. After getting his clothes on, Williams left the pool area but heard gunshots as he jumped over a fence.

Taylor meanwhile had continued to swim in the pool. When he got out, he too saw Porter pointing a gun at Hilliard, and Taylor actually saw Porter shoot Hilliard, who collapsed on the bleachers. (Taylor did not see Porter shoot Green, but blood matching Green's was found in the bleacher area.) Porter then fled from the bleachers, carrying a gun and passing within three feet of Taylor. Taylor went up to the bleachers to Hilliard's body, and police arriving at the scene found Taylor standing there. Both Williams and Taylor later identified Porter in a mug book, and Taylor identified Porter in a lineup as well. On cross-examination, Taylor admitted that he originally did not tell the police that he saw Porter shoot Hilliard, but he claimed he did so only out of fear of Porter.

A police officer, who was responding to a call about the shooting, encountered Green shortly after she was shot. Green was running from the bleacher area, and she pointed to the south where the officer saw Porter running. The officer stopped and frisked Porter but found no weapons and released him. The officer filed no report of stopping Porter. The officer, however, testified that he informed the detective on the scene in Washington Park of the incident, and the officer also identified Porter in court. Green later died, and the police never found the murder weapon.

The defense presented three witnesses at trial, two of whom provided an alibi for Porter. The common-law wife of one of Porter's brothers testified that Porter was at his mother's house that night until 2:30 a.m., and a friend of Porter's testified that he and Porter drank together at the house and at a playground until 9 a.m. On cross-examination, however, the friend admitted that he had previously told police he had last seen Porter at 10:30 p.m.

On September 7, 1983, after deliberating for nine hours, a jury convicted Porter of armed robbery, unlawful restraint, unlawful use of a weapon, and both murders. After a two-phase death penalty hearing, the trial judge sentenced Porter to death for the murders and to thirty years for the armed robbery. *fn1 Before the judge dismissed the jury, however, it somehow came to the judge's attention that one of the jurors went to the same church as Green's mother. The judge brought the jury into court and asked that juror to identify himself or herself. One of the jurors, Lillie B. Trigleth, immediately stated, "Yes, but that didn't make any difference to me about that." The judge then asked Trigleth a few times if she was sure her acquaintance had not affected her judgment, and Trigleth denied that it had. Trigleth also claimed that she did not make the connection between the victim and the victim's mother until "after it had got started and everything was going on." *fn2

The judge then dismissed the jury, stating that any further inquiry "would not have been proper, would have invaded the sanctity of the jury and jury deliberation." Defense counsel immediately moved for a mistrial, arguing that the judge should have questioned the juror in greater detail about her relationship with the victim's family. The judge denied the motion, but he allowed the defense to submit new motions in writing and scheduled a hearing for September 30, 1983. The defense filed a motion for a new trial and attached an affidavit from another juror stating that Trigleth had, upon entering the jury room for deliberations, "said as far as she was concerned, they could vote guilty right then." What happened regarding that motion, however, is not clear. The parties submitted to this court no evidence of a hearing on the motion, and after requesting the original trial record from the state court, we were unable to find any transcript of the hearing. Porter did state, however, in his notice of appeal to the Illinois Supreme Court in 1983 that his motion for a new trial had been denied on September 30, 1983.

In a 4-3 decision, the Illinois Supreme Court upheld Porter's convictions and sentences on direct appeal. People v. Porter, 489 N.E.2d 1329 (Ill. 1986). In that appeal, Porter argued that he deserved a new trial because the trial court had conducted an inadequate voir dire examination during jury selection and had failed to question Trigleth fully. The Illinois Supreme Court acknowledged that the trial court's "inquiry could have, and possibly should have, been more searching to determine the nature of the relationship" between Trigleth and Green's mother. Id. at 1336. The court refused to grant a new trial, however, because Porter had failed to show Trigleth's bias. The court reasoned that Porter could have "subpoenaed the juror and others to testify at the hearing on his motion for a new trial," or he could have submitted an affidavit from Trigleth documenting her relationship with Green's mother. Id. The U.S. Supreme Court denied Porter's petition for certiorari, although Justices Marshall and Brennan dissented. Porter v. Illinois, 479 U.S. 898 (1986).

Porter sought state post-conviction relief on three grounds: 1) denial of an impartial jury, 2) ineffective assistance of trial counsel, and 3) ineffective assistance of appellate counsel. Porter introduced new evidence on the impartial jury issue, including the guest book at Green's funeral which showed that Trigleth was the second person to sign the book. Porter also introduced a 1990 sworn interview with Trigleth, in which she acknowledged that she attended Green's funeral and that she had once given a suit to Green's older brother. *fn3 Trigleth stated, however, that she had nothing to hide, that she had never known Marilyn Green personally and knew her mother only by her church membership, that she had given suits to many children in the large congregation, and that she would attend any funeral "whenever . . . somebody passed that belongs to the church." On the ineffective assistance of trial counsel claim, Porter argued that because his trial counsel was not paid in full, the lawyer failed to present significant alibi and exculpatory evidence. For example, Porter offered affidavits suggesting that Porter and Hilliard were members of the same gang and that another couple with Hilliard and Green in Washington Park that night was responsible for the murders.

The county circuit court denied Porter a new trial without an evidentiary hearing, and the Illinois Supreme Court affirmed unanimously. People v. Porter, 647 N.E. 2d 972 (Ill. 1995). The state high court refused to consider the impartial jury issue because its decision on direct appeal was res judicata, and the court rejected both of the ineffective assistance of counsel claims on the merits. Id. at 975-76. Porter then sought federal habeas relief on a number of grounds, some of which were never raised in state court. The District Court denied all of Porter's claims, Porter v. Warden, Pontiac Correctional Center, No. 95 C 4111, 1996 WL 167340 (N.D. Ill. Apr. 4, 1996), but issued a "certificate of probable cause" (CPC) to appeal on May 13, 1996. We remanded the case, however, for the limited purpose of determining whether a "certificate of appealability" (COA) should issue, as 28 U.S.C. sec. 2253 now requires. The District Court issued a COA but only for the impartial jury claim. Porter v. Warden, Pontiac Correctional Center, No. 95 C 4111, 1996 WL 465399 (N.D. Ill. Aug. 9, 1996).

II. Analysis

A. Ineffective Assistance of Counsel

Porter first argues that his trial counsel was ineffective and that an evidentiary hearing is necessary to prove the incompetence that his affidavits have suggested. The Sixth Amendment, of course, guarantees an accused the right "to have the Assistance of Counsel for his defence," U.S. Const. amend. VI, and it is well-settled that "the right to counsel is the right to the effective assistance of counsel," McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). Moreover, the right to counsel applies to the states through the Due Process Clause of the Fourteenth Amendment. Gideon v. Wainright, 372 U.S. 335, 340 (1963). Nonetheless, the State asserts that Porter may not assert this right here because he lacks a certificate of appealability for that issue.

Section 2253(c) of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), requires that a habeas petitioner have a certificate of appealability before taking an appeal to a court of appeals. On April 24, 1996, when this new section became law, Porter had neither the CPC required by previous law nor the COA required by the new law. The District Court's issuance of a CPC on May 13 was therefore not adequate for an appeal because the law then in effect required a COA. See Herrera v. United States, 96 F.3d 1010, 1012 (7th Cir. 1996). We therefore remanded the case to the District Court to consider whether a COA should issue. The District Court carefully complied with sec. 2253(c) and specified that it was granting a certificate only with respect to Porter's impartial jury claim. Porter therefore has no COA with respect to his ineffective assistance of counsel claim, but he nonetheless raises that issue on appeal. The State argues that if Porter wanted us to consider his ineffective assistance of counsel claim he needed either 1) to ask the District Court to reconsider its ruling, or 2) to ask us separately for a COA before arguing the merits of his claim.

The State's position has a certain logic to it, but it is not the law. Federal Rule of Appellate Procedure 22(b) (also recently amended by the AEDPA) states that when a petitioner lacks a COA and yet "no express request for a certificate is filed," then a notice of appeal "shall be deemed to constitute a request addressed to the judges of the court of appeals." Our own circuit rules state the same. See 7th Cir. R. 22.1(b). So with respect to his ineffective assistance of counsel claim, Porter in effect asked us for a COA when he filed his notice of appeal. His current lack of a certificate is therefore not fatal to his claim, but we may reach the merits only after Porter jumps through one more hoop by making the "substantial showing of the denial of a constitutional right" that warrants a COA. See 28 U.S.C. sec. 2253(c)(2).

We have stated before that the new sec. 2253 does not make it substantively more difficult to get a COA than it was to get a CPC. See Herrera, 96 F.3d at 1012. A petitioner, in other words, must still demonstrate that an issue is debatable among jurists of reason or that the questions "deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). Moreover, "[i]n a capital case, the nature of the penalty is a proper consideration in determining whether to issue a certificate . . . but the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate." Id. at 893. Even a preliminary review of the history of this case and the affidavits Porter has submitted shows that his claim is not frivolous and presents a debatable issue, especially in light of the death sentence that hangs over Porter's head. We therefore issue the COA and move on to the merits of Porter's claim.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established that a claim of ineffective assistance of counsel will succeed only if a defendant shows 1) that "counsel's representation fell below an objective standard of reasonableness," id. at 688, and 2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. As to the first prong of that standard, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Ineffective assistance of counsel is a mixed question of law and fact, id. at 698, and our standard of review is therefore dictated by the recently-amended 28 U.S.C. sec. 2254(d)(1), see Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir. 1996) (en banc), cert. granted in part, 117 S. Ct. 726 (1997). *fn4 We may now grant habeas relief on such questions only if the state court judgment involved an "unreasonable application" of clearly established federal law, which means that "a responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment." Id. at 871.

Although we have already stated that Porter's claim is debatable enough to justify a certificate of appealability, we have a much harder time saying that the "judgment in place is based on an error grave enough to be called 'unreasonable'" as Lindh requires. Id. at 870. The Illinois Supreme Court heard Porter's ineffective assistance of counsel claim on post-conviction review and carefully applied the Strickland standard. The court held that regardless of whether the counsel's performance passed the first prong of the Strickland inquiry, none of the alleged mistakes would cast enough doubt on the outcome to warrant a new trial. That conclusion appears to us to be a reasonable one.

Porter asserts that his counsel should have presented evidence that Alstory Simon and Inez Johnson were responsible for murdering Green and Hilliard. Porter has offered a number of affidavits and sworn statements by people in the neighborhood stating, among other things, that Simon and Johnson went to the park that night with Green and Hilliard, that Simon had just been released from the penitentiary and had a financial dispute with Hilliard regarding drug dealing, that Hilliard was seen arguing in the park that night with a man who was not Porter, and that Simon threatened someone who asked Johnson what had happened at the park. None of this evidence was offered at trial, although the State concedes that Simon and Johnson were in Washington Park with Hilliard and Green at some point on the night of the murders.

The affidavits and statements presented to us in the record, however, are often barely comprehensible, are often secondor even third-hand in nature, and are, at best, circumstantial evidence that is overwhelmed by the direct, eyewitness testimony offered at trial. Consider, for example, the affiant who claims Hilliard and Simon had a drug-related financial dispute. The affiant claims he overheard Simon say that Hilliard and Green were "taken care of." That statement, even if true, hardly precludes Porter from being the one who "took care" of Hilliard and Green. The affiant also states that Porter is innocent because "Inez Jackson" (presumably the affiant meant Inez Johnson) told a woman (who later told the affiant) that Simon committed the murders. How much credence can we reasonably give to such third-hand information when it contradicts two eyewitnesses and a police officer who put Porter right at the scene of the crime? *fn5 Moreover, the affiant does not help his credibility when he insists that an inmate friend of his, Walter Jackson (a.k.a. Butterball), can back up the affiant's story, but only if the affiant can "get word to him first" because otherwise Jackson will "play crazy and won't talk to you, or pretend he doesn't know what you are talking about."

One final point deserves mention before we leave the ineffective assistance of counsel claim. One of Porter's main contentions on both state and federal post-conviction review has been that "[b]ecause of defense counsel's refusal (due to financial reasons) to investigate the case, the jury was not told that [Porter] had known Jerry Hilliard for several years and that the two had belonged to the same gang." Appellant's Br. at 24. Porter argues that such evidence would have tended to show that Porter would not have killed Hilliard. We first note that we are hardly convinced that a member of an illegal street gang would never kill a fellow member. Street gangs and other criminal organizations survive by the violence that members can employ both against outsiders and against fellow members. The Illinois Supreme Court, meanwhile, found Porter's argument wanting for another good reason, namely that evidence of Porter's gang membership "would hardly have endeared [Porter] to the jury." 647 N.E.2d at 976. Both of these rationales grant too much to Porter's argument, however, because what no one seems to have noticed is that Porter's counsel did present evidence that Porter and Hilliard belonged to the same gang. In his opening statement, Porter's counsel suggested to the jury that Porter was being set up by a rival gang to take the fall for murdering Hilliard:

I believe that the evidence that comes into this courtroom will show you that Mr. Porter is a member of a gang. I believe that the evidence that comes into this courtroom will show you that the deceased, Mr. Hilliard, is a member of that same gang. I believe it is possible, but I'm not sure of this, that the evidence will show you that one or both of [the prosecution's eyewitnesses] were members of a rival gang . . . . [W]e believe that the evidence in a common sense fashion will show no reason for Mr. Porter, the defendant, to have committed these acts. (Trial Tr. 373-74.)

Defense counsel later tried--but was unable--to elicit testimony that the two eyewitnesses were members of a rival gang. The defense was successful, however, in showing that Porter and Hilliard were members of the same gang, as the direct examination of one of Porter's alibi witnesses shows:

Q: Now, Mr. Doyle, are you a member of any gang?

A: Yes, sir.

Q: What gang are you a member of?

A: Cobra Stone.

Q: Do you know the defendant Anthony Porter?

A: Yes I do.

***

Q: Is he a member of your gang?

A: Yes, sir.

***

Q: Did you know Jerry Hilliard?

A: Yes, sir.

Q: Did you know him very well?

A: Yes, sir.

Q: Was Mr. Hilliard a member of your gang?

A: Yes, sir. (Trial Tr. 760-61.)

In short, Porter has not convinced us that the Illinois Supreme Court was unreasonable in denying his ineffective assistance of counsel claim. The Illinois Supreme Court applied the proper standard under Strickland, and the court reached a "responsible, thoughtful answer . . . after a full opportunity to litigate," Lindh, 96 F.3d at 871. Moreover, an evidentiary hearing on this claim is unnecessary. Under the standard announced in Townsend v. Sain, 372 U.S. 293 (1963), a federal hearing is mandatory only when the habeas petitioner has alleged facts that, if proved, entitle the petitioner to relief. *fn6 Id. at 312. Even if the allegations from Porter's affidavits withstood cross-examination at such a hearing, we do not think those second-hand accounts create a reasonable probability that Porter would have been acquitted had they been heard at trial. The eyewitness and police testimony is simply too strong against Porter. We therefore deny Porter any relief on his ineffective assistance of counsel claim.

B. Impartial Jury

Porter raises a stronger claim that he was denied an impartial jury at his state trial. The Sixth Amendment guarantees to a defendant a trial "by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. amend. VI. This right, moreover, binds the states through the Fourteenth Amendment's Due Process Clause. See Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968); Parker v. Gladden, 385 U.S. 363, 364 (1966). On this appeal, Porter specifically argues that a federal evidentiary hearing is necessary to resolve his claim because the Illinois courts never held a full and fair hearing regarding Trigleth's participation on the jury. *fn7 Before we can reach the merits of Porter's claim, however, we must deal with three potential procedural obstacles.

First, we must again confront the certificate of appealability issue. The District Court did grant Porter a certificate of appealability on his impartial jury claim, but 28 U.S.C. sec. 2253(c)(1)(A) requires a certificate issued by "a circuit justice or judge" for a habeas petitioner to appeal. If that language means that only a circuit justice or circuit judge may issue a certificate, Porter does not have a properly-issued COA. Such a reading, however, contradicts Federal Rule of Appellate Procedure 22(b), which was enacted by Congress contemporaneously with sec. 2253(c). Rule 22(b) forbids habeas appeals "unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c)." Other circuits have harmonized the two provisions by interpreting sec. 2253(c) to allow a circuit justice or any federal judge--circuit or district--to issue certificates of appealability. See, e.g., Else v. Johnson, No. 96-40404, 1997 WL 73845, at *1 (5th Cir. Feb. 20, 1997); Hunter v. United States, 101 F.3d 1565, 1573-83 (11th Cir. 1996). We need not decide that issue today, however, because we think Porter has easily satisfied the requirements for a COA, and we thus issue our own certificate as well. So regardless of whether a district judge may issue the certificates or whether only a circuit judge may, Porter's appeal can go forward because he now has a certificate from each.

Second, the State argues that Porter procedurally defaulted his claim by failing to raise it in state court. On both direct appeal and state post-conviction review, Porter asserted that he deserved a new trial based on Trigleth's participation on the jury. The State argues, however, that Porter never complained specifically about the trial judge not allowing a full hearing regarding Trigleth's bias. The State says the issue "was never raised in any fashion in the state courts." Appellee's Br. at 23. Even if the State is correct to parse Porter's claim so finely, the State is factually wrong that Porter never raised this specific issue in state court. In his brief to the Illinois Supreme Court on direct appeal, Porter argued, "The trial court improperly denied defendant's motion for new trial . . . where the trial court failed to inquire in depth as to the existence of bias or prejudice of a juror after verdict." A habeas petitioner must only "fairly alert" the state court of the federal constitutional grounds for his claim, see Bocian v. Godinez, 101 F.3d 465, 469 (7th Cir. 1996), and we have stated that "[w]hat is important is that the substance of the federal claim be presented fairly," Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir. 1992). Porter's state court brief clearly met those standards.

The third procedural obstacle is the Illinois Supreme Court's refusal to address the issue of Trigleth's jury participation on state post-conviction review. The court refused to address the issue because the court's resolution of the issue on direct appeal was res judicata. 647 N.E.2d at 976-77. The State asserts that this res judicata bar is the type of state procedural rule that, under Coleman v. Thompson, 501 U.S. 722 (1991), also prohibits federal review. The State is mistaken because a habeas claim cannot possibly be kept out of federal court merely because state res judicata rules bar rehearing in state court. See Gomez v. Acevedo, 106 F.3d 192, 196 (7th Cir. 1997); Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996). When a state court invokes res judicata, it simply means that the state courts have already resolved the matter and want nothing more to do with it. If state courts could, by simply shutting their ears to litigants, preclude further review in the federal courts, few habeas petitioners (if any) would ever make it to federal court. As we stated in Hogan, the crucial inquiry is

whether the state courts either have held that a procedural misstep is a forfeiture, or would so hold if a collateral attack were filed in state court. If the prisoner has presented his argument to the right courts at the right times--as the states define these courts and times--then the claim is preserved for federal collateral review. Hogan, 74 F.3d at 147.

Although the Illinois Supreme Court's invocation of res judicata is therefore not enough to keep Porter's claim out of federal court, the Illinois court went on to consider whether new evidence (i.e., Trigleth's sworn interview) entitled Porter to reopen the juror bias issue. 647 N.E.2d at 976. Based its earlier ruling on direct appeal that Porter could have either subpoenaed Trigleth or submitted an affidavit from her at the hearing on Porter's motion for a new trial, see 489 N.E.2d at 1336, the Illinois Supreme Court held on post-conviction review that "the time for presenting that evidence was during the post-trial hearing" and therefore refused to consider Porter's new evidence. 647 N.E.2d at 976. Regarding the new evidence, in other words, the Illinois Supreme Court invoked a forfeiture rationale which, in contrast to a res judicata rationale, normally does preclude federal review. As mentioned above, however, the record does not reveal whether Porter ever got a hearing on his motion for a new trial. Because we are unsure about what transpired regarding this motion (other than knowing that it was denied) and because Porter plausibly argues that he could not subpoena Trigleth or get an affidavit from her because the trial judge wanted to protect her from questioning, we will assume that Porter had no reasonable opportunity to present his evidence to the trial court and that no procedural bar therefore blocks our consideration of the evidence.

With these procedural roadblocks finally out of the way, we can move on to the merits of Porter's claim. Lillie Trigleth's participation on the jury that convicted Porter is undoubtedly in tension with the rule of law, which enshrines impartiality as a sine qua non for fair and just legal outcomes. As the U.S. Supreme Court has stated, due process of law requires "a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217 (1982). We agree with the Illinois Supreme Court that the trial court's inquiry into juror bias in this case "could have, and possibly should have, been more searching." 489 N.E.2d at 1336. Thirteen years later, however, the question for us is whether doubts regarding Porter's jury are so severe as to imperil the legitimacy of Porter's conviction.

Jury bias during a state court trial is a question of fact that state courts are "in a far better position than the federal courts to answer." Rushen v. Spain, 464 U.S. 114, 120 (1983). And under either preor post-AEDPA law, state court determinations of factual issues are presumed to be correct on federal habeas review. Compare 28 U.S.C. sec. 2254(e)(1) (1997) with 28 U.S.C. sec. 2254(d) (1994). The state courts here found no juror bias, but we cannot blindly apply the presumption of correctness to this finding because, as noted above, we are assuming for the sake of our discussion that the trial court never conducted an adequate hearing. Under pre-AEDPA law, the presumption of correctness would clearly not apply because "the material facts were not adequately developed at the State court hearing," 28 U.S.C. sec. 2254(d)(3) (1994).

The new sec. 2254, however, drops that language and, more significantly, curtails the availability of evidentiary hearings to develop material facts. See 28 U.S.C. sec. 2254(e)(2). Indeed, the language of the new law raises a substantial question of whether we even have the power to grant an evidentiary hearing to someone in Porter's position. *fn8 Porter may therefore face a much more difficult burden under post-AEDPA law as compared with pre-AEDPA law. We find, however, that Porter is not entitled to a hearing even under pre-AEDPA law. In other words, even if we strip the state court finding of any presumption of correctness, and even if we ignore the new law pertaining to evidentiary hearings, we still find that Porter's petition warrants no relief.

Under Townsend and Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), a federal evidentiary hearing is required if a habeas petitioner alleges facts which, if proved, would entitle him to relief and the state courts--for reasons beyond the control of the petitioner--never considered the claim in a full and fair hearing. See Townsend, 372 U.S. at 312; Tamayo-Reyes, 504 U.S. at 11. Moreover, when a question of juror partiality is raised, a determination on that question "may properly be made," Phillips, 455 U.S. at 217, at a post-trial hearing "with all interested parties permitted to participate," Remmer v. United States, 347 U.S. 227, 230 (1954). Such a hearing gives a defendant "the opportunity to prove actual bias." Phillips, 455 U.S. at 215.

As we stated recently, however, the Townsend requirement of a hearing "cannot be taken literally, since we know that the district court 'may employ a variety of measures in an effort to avoid the need for an evidentiary hearing' on disputed facts." Bracy v. Gramley, 81 F.3d 684, 693 (7th Cir. 1996) (quoting Blackledge v. Allison, 431 U.S. 63, 81 (1977)), cert. granted in part, 117 S. Ct. 726 (1997). The Supreme Court noted in Blackledge, for example, that a district court may order discovery or direct that the record be expanded to avoid "the time and expense required for an evidentiary hearing." 431 U.S. at 82 (quoting Advisory Committee Note to Rule 7, Rules Governing Section 2254 Cases in the United States District Courts). Indeed, Rule 7 contemplates "letters, documents, exhibits, and affidavits" being added to the record, potentially obviating the need for an evidentiary hearing.

The relevant question on habeas review, therefore, is not so much whether a petitioner has had all the trappings of a full evidentiary hearing, but rather whether the petitioner received "careful consideration and plenary processing of [his claim,] including full opportunity for presentation of the relevant facts." Blackledge, 431 U.S. at 82-83 (quoting Harris v. Nelson, 394 U.S. 286, 298 (1969)); see also Jeter v. Keohane, 739 F.2d 257, 257 n.1 (7th Cir. 1984) ("An evidentiary hearing is not necessary when the facts essential to consideration of the constitutional issue are already before the court."). We think that even though Porter may never have had an official evidentiary hearing, he has had a full opportunity for the presentation of his claim. Porter's current counsel interviewed Trigleth under oath in 1990, and Porter submitted a transcript of that interview to the state courts on post-conviction review. The transcript was similarly before the District Court, and we have attached the interview as an appendix to this opinion. Our reading of that interview shows that Trigleth has been asked all of the relevant questions regarding her bias and that she, as stated in her own words, has "nothing to hide." At the time of the interview, Trigleth was 75 years old and still working as a nurse. Even before being confronted with the guest book from the funeral (which showed her signature), Trigleth admitted quite frankly that she had attended Green's funeral. She added, however, that she attended the funeral whenever any member of her large congregation died. Trigleth stated that she knew Green's mother only through membership in the church, that she had never been over to Green's mother's house, and that Green had not attended the church since childhood. Trigleth also stated that she could not quite remember when it dawned on her that she knew Green's mother, but that it "was almost to the end" of the trial. Finally, Trigleth forthrightly admitted telling her fellow jurors that she knew Green's mother.

Such attenuated connections between Green and Trigleth do not suffice to prove actual bias. We can draw no conclusion from this record other than that the elderly Trigleth didn't actually know, in the usual sense, either Marilyn Green or her mother. Their only connection was membership in a huge congregation which at one point had up to 3,000 members. When put in this context, Trigleth's attendance at Green's funeral and her gift of a suit to Green's brother suggest Trigleth was merely a duty-bound parishioner, not a covert vigilante out for revenge against Green's murderer. *fn9 The record supports no conclusion other than that Trigleth went to Marilyn Green's funeral because she made a habit of attending funerals of anyone who had a connection with the church. She didn't go to this particular funeral for any other reason. And because her acquaintance with the Greens was so attenuated, her failure to recognize Marilyn Green's name on voir dire is understandable and meaningless. The state courts were convinced, and on this record, so are we, that Ms. Trigleth was free of prejudice when she was one of the twelve jurors who sat in judgment on Porter's fate. Moreover, we would note that the jury found Porter guilty of murdering Hilliard too, and no one has suggested that any juror was biased regarding Hilliard.

Porter's fallback argument, however, is that the sworn interview with Trigleth still did not give him an adequate opportunity to show Trigleth's bias. He argues that Trigleth appeared for the interview voluntarily and that counsel could therefore not ask tough questions for fear that Trigleth might leave. Without the threatening power of a subpoena hanging overhead, in other words, Porter's counsel supposedly could not conduct a meaningful interview. Porter is obviously grasping for straws because the transcript of the interview belies this argument. Porter not only fails to point out any question that Trigleth refused to answer, he also fails even to show where Trigleth might have been evasive in her answers. In fact, counsel stated to Trigleth at the interview, "[Y]ou have been pretty agreeable talking to me and answering my questions." Trigleth admittedly could have walked out of the interview at any time, but counsel's questions do not appear to have come close to making Trigleth leave. Moreover, if all Porter needed was a court order to ask Trigleth a few more hardball questions, a court-sanctioned deposition would have been the perfect place to do it. Porter, however, never asked the District Court to authorize such discovery, which Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts clearly permits.

Porter has had an opportunity to prove actual bias, but he has failed to do so. He has thoroughly interviewed Trigleth under oath, but her answers show that the allegations of bias have only surface appeal but no substance. A further evidentiary hearing would be little more than the proverbial fishing expedition. We therefore grant Porter a certificate of appealability regarding both of his claims but deny Porter any relief on the merits. The District Court's judgment is Affirmed.


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