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March 9, 1999


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


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.


Under Section 2254(e)(1)*fn1 the state court's findings of fact are presumptively correct in any federal habeas proceeding. Accordingly this opinion sets forth the Illinois Supreme Court's recitation of the facts from its direct review of Maxwell's case (People v. Maxwell ("Maxwell I"), 148 Ill.2d 116, 121-25, 170 Ill.Dec. 280, 592 N.E.2d 960, 962-65 (1992)):

  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
  charged here.
  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
  of the

  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.

Procedural History

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 (1997)).

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;
    3. absence of a knowing and intelligent waiver of
  Maxwell's right to a jury for capital sentencing, and
  ineffective assistance

  of counsel in discussing such a waiver with Maxwell;
    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
  post-conviction petition;
    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
  penalty scheme.

To pursue his claims, Maxwell also requests an evidentiary hearing and the right to pursue discovery.

Procedural Framework

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 claim —

    (1) resulted in a decision that was contrary to, or
  involved an unreasonable application of, clearly
  established Federal law, as determined by the ...

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