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U.S. EX REL. FOSTER v. GILMORE

January 22, 1999

UNITED STATES OF AMERICA, EX REL. JAMES T. FOSTER, PETITIONER,
v.
JERRY GILMORE, RESPONDENT.



The opinion of the court was delivered by: Gettleman, District Judge.

MEMORANDUM OPINION AND ORDER

In 1985, petitioner James T. Foster was convicted and sentenced to death in the Circuit Court of Kane County for the brutal murder of his girlfriend, Jacqueline Simmons. The facts and procedural history of the case are described in detail in the opinion of the Supreme Court of Illinois on petitioner's direct appeal of his conviction, People v. Foster, 119 Ill.2d 69, 115 Ill. Dec. 557, 518 N.E.2d 82 (1987). As described in that opinion, petitioner beat Ms. Simmons to death with a baseball bat because be believed she had had sexual relations with another man. Because the evidence established that petitioner had committed aggravated sexual assault against Ms. Simmons during the murder by inserting the splintered bat into her anus, he was eligible for the death penalty under Illinois law.

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 sentencing phase.

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.

I. Standard of Review

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.

II. Discussion

A. The Trial

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 ...


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