The opinion of the court was delivered by: Gettleman, District Judge.
MEMORANDUM OPINION AND ORDER
After exhausting his state postconviction remedies,*fn1
petitioner filed the instant habeas corpus action pursuant to
28 U.S.C. § 2254, contending that his counsel was ineffective at
the guilt-innocence phase of the trial, as well as at the
On petitioner's motion, this court held an evidentiary hearing
to examine his claims, at which the court heard testimony from
petitioner's former trial attorneys and the psychiatrist whose
testimony and report petitioner claims should have been offered
to demonstrate mitigating factors at sentencing. For the reasons
set forth below, the court grants in part and denies in part the
petition for a writ of habeas corpus.
Because petitioner filed his petition after the enactment of
the Anti-Terrorism and Effective Death Penalty Act of 1996,
28 U.S.C. § 2254(d) ("ADEPA"), that statute governs this court's
consideration of the petition. Holman v. Gilmore, 126 F.3d 876,
881 (7th Cir. 1997).*fn2 This court recently discussed the
standard of review in United States ex rel. Gaines v. Gilmore,
1998 WL 427612 (N.D.Ill. 1998), as follows:
Any claim adjudicated by a state court on
the merits is governed by 28 U.S.C. § 2254(d),
under which habeas relief may be awarded only where the
state court's adjudication of a petitioner's 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." 28 U.S.C. § 2254(d)(1) — (2).
The first phrase of § 2254(d)(1) — authorizing
habeas relief when the state court's
decision is "contrary to" clearly established
federal law as determined by the Supreme
Court — pertains only to questions of law.
Lindh v. Murphy, 96 F.3d 856, 868 (7th
Cir. 1996) (en banc), rev'd on other
grounds, 521 U.S. 320, 117 S.Ct. 2059, 138
L.Ed.2d 481 (1997).
The second phrase of § 2254(d)(1) — authorizing
habeas relief when the state court's
decision "involved an unreasonable application"
of clearly established federal law as
determined by the Supreme Court — pertains
to mixed questions of law and fact. Id. at 870. This
phrase "tells federal courts: Hands off, unless the judgment in
place is based on an error grave enough to
be called `unreasonable.'" Id. A state
court's application of Supreme Court precedent
is reasonable if it is "at least minimally
consistent with the facts and circumstances
of the case." Hennon v. Cooper, 109 F.3d 330, 335 (7th
Cir. 1997). "[W]hen the constitutional question is a matter of
degree, rather than concrete entitlements,
a . . . responsible, thoughtful answer
reached after a full opportunity to litigate
is adequate to support [a state court's]
judgment." Lindh, 96 F.3d at 871. Thus,
"[t]he `statutory unreasonableness' standard
allows the state court's conclusion to
stand if it is one of several equally plausible
outcomes." Hall v. Washington, 106 F.3d 742, 748 (7th
Cir. 1997). In other words, if a state court asks the "legally
correct question [such as] whether the trial
judge abused his discretion . . . [then] the
`fact-specific answer cannot be called "unreasonable"
even if it is wrong . . .'"
Lindh, 96 F.3d at 867-77.
Applying these standards, the court finds that petitioner has
failed to meet his burden with respect to his representation at
the trial, but has demonstrated that his counsel was
constitutionally ineffective at the sentencing phase.
To succeed in his claim that his trial counsel was ineffective,
petitioner must demonstrate that his lawyer's conduct "fell below
an objective standard of reasonableness" and was "outside the
wide range of professionally competent assistance." Strickland v.
Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). As petitioner acknowledges, unless his lawyer's
performance was so deficient that the trial "loses its character
as a confrontation between adversaries," he must also show
prejudice by demonstrating that it is reasonably likely that, but
for counsel's errors, the decision reached would have been
different. Id., at 696, 104 S.Ct. 2052; Lockhart v. Fretwell,
506 U.S. 364, 369-70, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). And, as
mentioned previously, petitioner must demonstrate that the state
court's decision on this point "involved an unreasonable
application of clearly established federal law, as determined by
the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Petitioner has failed to meet this burden with respect to his
lawyers' conduct at trial. Petitioner bases his claim to
ineffective assistance at trial principally on the assertion that
his counsel effectively admitted petitioner's guilt when he
stated at closing argument that petitioner "killed the woman he
loved." Unfortunately for petitioner — not to mention Ms.
Simmons — this statement was indisputably true.
This issue was thoroughly addressed by the opinion of the
Supreme Court of Illinois denying petitioner's postconviction
claims. People v. Foster, 168 Ill.2d 465, 487-88, 214 Ill. Dec.
244, 660 N.E.2d 951, 961-62 (1995). As noted by the state court,
counsel's closing argument was consistent with the defense theory
that petitioner "did not possess the requisite intent or knowing
mental state for a murder conviction," and conceded only "one
clement of murder which was incontrovertible in light of the
evidence." Id. Having reviewed the evidence and mindful of the
Illinois court's proper application of the Strickland test, this
court cannot conclude that the state court's application ...