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U.S. EX REL. MAXWELL v. GILMORE
March 9, 1999
UNITED STATES OF AMERICA EX REL. ANDREW MAXWELL, PETITIONER,
JERRY GILMORE, WARDEN, PONTIAC CORRECTIONAL CENTER, RESPONDENT.
The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Andrew Maxwell ("Maxwell") has filed a 28 U.S.C. § 2254
("Section 2254") petition for a writ of habeas corpus
("Petition"). Maxwell challenges both his murder conviction and
the consequent death sentence and seeks an evidentiary hearing to
consider that challenge. For the reasons stated hereafter, this
Court denies the Petition in principal part but grants certain
aspects of Maxwell's requests for an evidentiary hearing and for
the opportunity to conduct discovery.
The offenses involved here occurred in Chicago on
October 26, 1986. Harold Anderson testified at trial
that sometime after 9 o'clock that evening he and
Adrian Bracy were walking in the 8300 block of South
Indiana Street when they were approached by three
men, whom Anderson identified as the defendant, Jerry
Thompson, and Gregory Howard. According to Anderson,
the defendant pointed a gun at Bracy and announced a
stickup. In response, Bracy threw a beer bottle he
was carrying at the defendant. As Anderson retreated,
he saw the defendant shoot Bracy. Anderson ran behind
a house, and he later heard a second shot fired.
Anderson returned to the scene of the shooting
several moments later and found Bracy lying on the
ground. A nearby resident testified that he heard two
gunshots around 9:30 p.m. The witness looked out his
window and saw two figures, followed by a third,
running across his yard. He did not see the
individuals' faces. Police who were summoned to the
neighborhood found Bracy's wallet several feet from
his body; the wallet contained identification but no
money. An autopsy later established that Bracy died
as a result of multiple gunshot wounds.
Over a defense objection, the State presented
evidence of a series of three offenses committed by
the defendant, Jerry Thompson, and Gregory Howard in
Chicago during the evening of November 3, 1986.
Terrance L. Wilson, who lived in the 10400 block of
South Troy in Chicago, returned to his home around
8:50 that evening. Wilson testified that three men
entered the garage as he parked his car. One of the
men drew a gun and demanded Wilson's car keys.
Another man searched Wilson's pockets and removed
$90. The three men, whom Wilson identified as the
defendant, Jerry Thompson, and Gregory Howard, then
got in the car and drove off.
Jose Flores, who lived in the 10600 block of Avenue
B, left work at 10:45 p.m. on November 3, 1986.
Flores testified that he was cut off by a black Monte
Carlo containing three men while he was driving home.
When Flores parked his car, he noticed the same Monte
Carlo nearby. As Flores got out of his car, he was
approached by three men, whom he identified as the
defendant, Jerry Thompson, and Gregory Howard. The
defendant pointed a gun at Flores and threatened to
shoot him. Flores ran inside his house.
Dmitar Marich, who lived in the 10900 block of Avenue
A in Chicago, returned home from work around 11 p.m.
on November 3, 1986. Marich testified that he parked
his car in the garage and got out of the vehicle. A
man, whom Marich identified as the defendant, then
put a gun to Marich's head and took $20 from his
shirt pocket. Two other men, whom Marich was not able
to identify, were standing nearby. The three then ran
Patrolling officers spotted Wilson's black Monte
Carlo around 11:30 the evening of November 3. After a
chase, the car crashed into a garage and three men
jumped out. The officers captured one of the car's
occupants, Jerry Thompson, but the other two escaped.
Another officer on patrol saw the defendant several
hours later. The officer pursued the defendant on
foot and eventually apprehended him; the defendant's
.22-caliber revolver was subsequently found in a
backyard along that same course. Bullet fragments
removed from Bracy during the autopsy were shown to
be consistent with test firings from the handgun
abandoned by the defendant during the chase. Other
evidence established that the defendant had stolen
the gun during a burglary committed in September
1985, more than a year before the offenses charged
here. Fingerprints positively identified as the
defendant's and Jerry Thompson's had been found at
the scene of the 1985 burglary.
Following his arrest for the string of offenses
committed November 3, the defendant became a suspect
in the murder and attempted armed robbery of Adrian
Bracy. In a lineup conducted November 12, Harold
Anderson identified the defendant and the two other
offenders. That same day, the defendant gave law
enforcement officers oral and signed statements
admitting his involvement in the present offenses,
and these confessions were introduced into evidence
at trial. In his initial statement, the defendant
admitted his participation in the crimes but denied
that he was the one who had fired the gun. Later,
when told, correctly, that he had been identified as
the gunman, the defendant admitted to police officers
that he had shot Bracy.
In his statements, the defendant said that he, Jerry
Thompson, and Gregory Howard were driving around
during the evening of October 26 looking for someone
to rob; the defendant said that he was armed with a
.22-caliber revolver. When they saw two people
walking in the vicinity of 83rd and Wabash, they
parked their car nearby and approached the intended
victims on foot. The defendant announced the stickup
to the victims. Bracy started swinging a bottle, and
the second man backed away and ran off. Bracy threw
the bottle at the defendant, missing him. According
to the defendant, Bracy then reached into his pocket,
as if to retrieve something. The defendant fired a
total of three shots at Bracy. After the third shot
was fired, Bracy stumbled and fell to the ground.
Thompson and Howard searched Bracy's pockets, but
they did not find any money. The defendant, Thompson,
and Howard then fled from the scene.
The defendant did not testify at trial. The only
witness called by the defense was Sady Holmes, who
provided evidence of an alibi. Holmes, who was the
mother of the defendant's girlfriend, testified that
during the evening of October 26, 1986, the defendant
was at her home watching television with her daughter
between 9 and 10 o'clock, the time of the offenses
Following the close of evidence, the jury found the
defendant guilty of murder and attempted armed
robbery. The matter then proceeded to a capital
sentencing hearing. At the first stage of the
bifurcated proceeding, the parties stipulated that
the defendant was 19 years old in October 1986 and
therefore had attained a death-eligible age at the
time of his commission of the present offenses (see
Ill.Rev.Stat. 1985, ch. 38, par. 9-1(b)). At the
conclusion of the first stage of the hearing, the
trial judge found the defendant eligible for the
death penalty on the single ground urged by the
State, commission of murder in the course of a
specified felony, attempted armed robbery
(Ill.Rev.Stat. 1985, ch. 38, par. 9-1(b)(6)).
During the second stage of the sentencing hearing,
the State presented further evidence of the
defendant's criminal history, in addition to the
information that had already been introduced at
trial. Mote Whiting, 69 years old, testified that he
was accosted by the defendant and Jerry Thompson on
January 1, 1984. The defendant struck Whiting on the
head, knocking him to the ground. The defendant and
Thompson then took Whiting's wallet and fled. The
defendant was convicted of robbery for that offense.
Stanley Brookins testified that early in the morning
on November 1, 1986, he walked past the defendant and
another man at the entrance to an alley. The
defendant displayed a handgun and threatened to shoot
Brookins; Brookins dared the defendant to fire the
gun. Brookins then heard several shots but walked on.
Sometime later, Brookins noticed that he was bleeding
and discovered then that he had been struck by the
defendant's shots. Brookins was required to undergo
two separate periods of hospitalization for treatment
injuries he sustained as a result of the shooting.
At the sentencing hearing, the defendant presented
mitigating testimony from eight witnesses. The
defendant's mother, Shirley Maxwell, testified that
the defendant attended school regularly, though he
did not graduate from high school. Mrs. Maxwell also
stated that the defendant had been shot on two
occasions because he refused to join a street gang.
The defendant's two sisters, Martha Brown and
Monalisa Maxwell, described their brother as helpful
and courteous. Martha stated that the defendant would
often escort her to and from the housing project in
which she lived. Monalisa stated that the defendant
would baby-sit with her child and would repair broken
things around the house.
The defendant's girlfriend, Mary Holmes, testified
that the defendant helped support their
eight-month-old daughter. Mary also stated that the
defendant would help people with their groceries and
perform other errands. The defendant's cousin,
Michael Jones, who had lived with the Maxwell family
in 1985, testified that the defendant helped him with
his homework and taught him about cars during that
period. Favorable testimony in mitigation was also
provided by Ramona McIntosh, Judy Frazier, and
Beatrice Griffin, who were neighbors and friends of
the defendant's family. These three witnesses stated
that the defendant would often assist them with
At the conclusion of the hearing, the trial judge
sentenced the defendant to death for the murder of
Adrian Bracy. The judge also sentenced the defendant
to a 15-year prison term on his conviction for
attempted armed robbery.
In terms of the material covered, that factual account fairly
reflects the record. Additional facts not addressed by the
Illinois Supreme Court on direct review will be discussed later
in this opinion as they become relevant.
After his trial and sentencing, Maxwell first appealed directly
to the Illinois Supreme Court, which affirmed both his conviction
and death sentence in Maxwell I. Maxwell's ensuing petition to
the United States Supreme Court for a writ of certiorari was
denied (Maxwell v. Illinois, 506 U.S. 977, 113 S.Ct. 471, 121
L.Ed.2d 377 (1992)). Next Maxwell sought relief under the
Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 through
5/122-7), bringing his post-conviction claims before the original
trial court. That court granted the State's motion to dismiss
Maxwell's claims without an evidentiary hearing. In June 1996 the
Illinois Supreme Court, with Justice Mary Ann McMorrow
dissenting, affirmed that dismissal (People v. Maxwell
("Maxwell II"), 173 Ill.2d 102, 219 Ill.Dec. 1, 670 N.E.2d 679
(1996)), and it denied Maxwell's motion for rehearing three
months later. Finally, the United States Supreme Court denied
Maxwell's petition for a writ of certiorari (Maxwell v.
Illinois, 520 U.S. 1174, 117 S.Ct. 1445, 137 L.Ed.2d 551
On April 22, 1997 Maxwell filed his Petition seeking federal
habeas relief from this Court under Section 2254.*fn2 Although
Maxwell lists a total of 21 grounds for relief, this opinion
groups them into 11 categories of constitutional claims:
1. ineffective assistance of counsel in failing to
conduct an adequate investigation at trial;
2. ineffective assistance of counsel in failing to
conduct an adequate investigation at sentencing;
4. Brady violation from prosecutors' failure to
turn over evidence of systematic physical abuse of
prisoners at Area 2 Violent Crimes;
5. due process violation in failing to provide a
state evidentiary hearing on Maxwell's
6. ineffective assistance of appellate counsel in
failing to raise certain claims on direct appeal;
7. Fifth Amendment*fn3 violation under Edwards v.
Arizona in conducting a custodial interrogation
after Maxwell invoked his right to counsel;
8. denial of the right to a fair trial due to
introduction of "other crimes" evidence;
9. due process violation in the trial judge's
instructing the jury on felony murder;
10. denial of the right to a fair death penalty
proceeding because the sentencing judge failed to
give any consideration to mitigating evidence; and
11. unconstitutionality of the Illinois death
To pursue his claims, Maxwell also requests an evidentiary
hearing and the right to pursue discovery.
Before any federal court can address the merits of a Section
2254 petition, petitioner must have both exhausted his state
remedies and avoided any fatal procedural defaults (Section
2254(b)(1); Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.
1996)). Claims are exhausted "by either (a) providing the highest
court in the state a fair opportunity to consider the
constitutional issue, or (b) having no further available means
for pursuing review of one's conviction in state court" (Wallace
v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1985) (per curiam)).
Because it is clear from the procedural history that Maxwell
satisfies the second of those alternatives, this opinion turns to
the separate doctrine of procedural default.
While "[e]xhaustion . . . refers only to issues that have not
been presented to the state court but still may be presented"
(Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992)),
procedural default occurs in one of two situations: either
petitioner failed to present the federal constitutional issue
fairly to the state courts (see, e.g., Bocian, 101 F.3d at 469)
or the state court rejected a claim on an independent and
adequate state law ground (see, e.g., Coleman v. Thompson,
501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Once
barred on procedural default grounds, a claim will not be
cognizable in a federal habeas proceeding unless the petitioner
can clear one of two hurdles established by Coleman, id. at
750, 111 S.Ct. 2546:
[T]he prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Thus this Court must first determine which if any of Maxwell's
claims are procedurally defaulted and whether Maxwell may avoid
the procedural bar to any such claims by demonstrating either
cause and prejudice or a fundamental miscarriage of justice.
Any claims that manage to survive those threshold and intricate
procedural obstacles must then satisfy Section 2254's stringent
standard for granting habeas claims that the state courts have
considered and rejected on their merits. As amended in 1996,
Section 2254(d) reads:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the ...