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.
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.
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).
A. Ineffective Assistance ...