The opinion of the court was delivered by: LEVIN
Following a 1987 bench trial in the Circuit Court of Cook County, Verser was convicted of the murder and attempted armed robbery of Ismael Nunez ("Nunez") as well as attempted murder, attempted armed robbery and aggravated battery of Silvestre Compos ("Compos"). The facts leading to Verser's conviction are set forth below.
On the evening of November 29, 1985, Verser picked up a gun and told his friend, Albert Pigram ("Pigram"), "let's go get some money." After meeting Vinada Robinson ("Robinson"), they drove around for awhile, and Verser apparently placed the gun underneath the hood of the car. Meanwhile, Nunez and Compos had been driving around in a van. They had stopped at numerous taverns and had purchased a case of beer. At one point, their van passed the car containing Verser, Pigram and Robinson. Compos was drinking in the van, and Verser said, "those are the ones."
The van carrying Nunez and Compos proceeded to the parking lot of the Casa Rita Restaurant at 1141 North Ashland in Chicago. The car carrying Verser, Pigram and Robinson followed. Verser exited the car and approached its hood, evidently to retrieve his .357 magnum gun. Verser or Pigram then opened the driver's door of the van and confronted Nunez and Compos. Nunez was sitting in the driver's seat, and Compos was sitting in the passenger's seat. Verser announced a "stick-up" and demanded their money. Pigram went around the van and opened the passenger's door. Compos, who spoke little English, said that he did not have any money. Either Compos or Nunez also hollered, "no comprende."
When Compos tried to kick Pigram, Verser held the gun in one hand and shot Compos once in the back, lacerating his right kidney and perforating his colon. As Compos slumped out of the van and onto the pavement, Nunez tried to grab the gun away from Verser. Verser, however, pushed him, took two steps back and, holding the gun in both hands, aimed it at Nunez and fatally shot him once in the left side of the chest.
Pigram, who already had returned to the getaway car, noticed that Verser walked back to the car 15 seconds later with the gun dangling down at his side. Verser suggested to Pigram and Robinson several times that they had not seen anything. Verser also stated, "keep this to yourself' and "that's all in the game." After they had dropped off Robinson, Verser told Pigram, "let us go get some more," and they drove around the Logan Square area. When Verser drove Pigram home, he again told Pigram, "keep this to yourself."
When police found Nunez and Compos, Nunez had no wallet, identification or money, and coins were strewn on the ground near Compos. Nunez was found sitting slumped in the driver's seat of the van. According to Robinson, when he saw Verser the next day, Verser was "bragging about what he had done, as if it was a joke." Verser subsequently warned Robinson not to testify in court.
On direct appeal, the Illinois appellate court vacated Verser's extended-term sentences and remanded to the trial court for resentencing. People v. Verser, 200 Ill. App. 3d 613, 558 N.E.2d 226, 146 Ill. Dec. 263 (1st Dist. 1990). On remand, Verser received 40 years for the murder conviction and 20 years for the attempt murder to be served consecutively to each other and concurrently with the previously entered fifteen-year terms of attempt armed robbery. This judgment was affirmed by the Illinois Appellate Court in an unpublished order, People v. Verser, 1-90-3562, and the Illinois Supreme Court denied leave to appeal.
While his petition for leave to appeal was still pending, Verser filed a petition for post-conviction relief, alleging ineffective assistance of both his trial counsel and appellate counsel. The trial court granted the state's motion to dismiss on December 1, 1993. On February 21, 1996, the Illinois Appellate Court issued an unpublished order, People v. Verser, 1-94-0032, affirming the dismissal. The Illinois Supreme Court denied Verser's petition for leave to appeal on October 2, 1996. Verser filed this pending habeas petition on November 26, 1996.
"When a federal district court reviews a habeas corpus petition pursuant to 28 U.S.C. § 2254, it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). A federal court may grant habeas relief "only when there ...