United States District Court, N.D. Illinois, Eastern Division
July 2, 2004.
ANDRE THOMAS, Petitioner,
JERRY L. STERNES, Warden, Dixon Correctional Center, Respondent.
The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Andre Thomas and two co-defendants were indicted on October 4,
1995 for the first degree murder of fellow gang member Clifford
Ray. The State alleged that Thomas, a governor of the Gangster
Disciples, fatally shot Ray at Thomas' home during a gang
meeting, after Ray fired a gun when co-defendants Ronnie Sloan
and Anthony Adams began beating him for refusing to pay
"political dues" to the gang and "disrespecting" Thomas. Thomas
and his co-defendants were convicted after a bench trial in 1997,
and Thomas was sentenced to thirty years in prison. Thomas
maintains that he is not guilty of first-degree murder because he
acted in self defense or with an unreasonable apprehension of
imminent death, rendering his conduct second-degree not
Thomas seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He raises four claims in his pro se petition. In his first claim, he argues he
was denied a fair trial, due process and equal protection because
prosecutors negated his self-defense claim by arguing he was
accountable for his co-defendants' actions and, therefore, the
initial aggressor. He insists that as the shooter, he could not
be convicted under the accountability theory because it does not
apply to principals. In his second claim, Thomas argues he was
denied a fair trial, due process and equal protection because the
trial judge did not appropriately consider all the evidence and
failed to require the State to prove he acted "without lawful
justification." In essence, he challenges the sufficiency of the
evidence that he was accountable for the initial violence against
Ray. Thomas further claims the trial judge ignored evidence that
the victim shot two individuals in Thomas' home evidence he
says was essential to his claim that he acted in self defense or
with an unreasonable belief of imminent danger. In his third
claim, Thomas argues his attorneys were ineffective in violation
of the Sixth Amendment in that they failed to present any
evidence of self-defense, failed to interview eyewitness Dave
Sloan, and refused Thomas' repeated requests to testify at trial.
Thomas' final claim is that he was denied a full and fair hearing
of his post-conviction claims in violation of the due process and
equal protection clauses. This final claim is not an appropriate
ground for issuing the writ, so it will not be considered.
Judge Themis Karnezis presided over Thomas, Adams and Sloan's
trial in August 1997. The cases were severed, but the judge heard
evidence against all three defendants simultaneously. Thomas was
represented by Charles Ingles and Richard Beuke. The
prosecution's key witnesses were Lashon Coleman and Karrience
Golden, who testified they were present at Thomas' apartment on South Marshfield in Chicago when the fatal shooting
occurred. At the time Golden testified, he had a criminal charge
pending and had been convicted of felonies in 1992 and 1994.
Trial Tr. (Aug. 8, 1997) at E4-E5. When Coleman testified, he was
serving a 120-month sentence for a federal felony conviction and
had three state felony convictions from 1991, 1993 and 1994.
Trial Tr. (Aug. 7, 1997) at D31, D80.
Coleman testified that at the time of the shooting, Thomas was
a governor of the Gangster Disciples, and Adams served as his
assistant.*fn1 Id. at D36. Coleman testified that
governors collected political fees from gang members and that a
member would be "violated" if he did not pay his dues or if he
was disrespectful to a governor. Id. at D47-D49. He explained
that violations ranged from a monetary fine to death, with
intermediate penalties, including a "pumpkin head," which is when
a person is beaten about the face. Id. at D48-D49. Coleman said
that on September 26, 1995, Thomas told him to come over to his
house to take care of "nation" business, which Coleman understood
could involve a violation. Id. at D125. Although Coleman
conceded on cross-examination that the nation business could have
been about concert tickets, id., he said, unsolicited, that he
was known for giving violations and "[he] knew what it was when
[he] came through there." Id. at D126.
According to Coleman, approximately eight men gathered in
Thomas' living room, and Thomas accused Ray of not paying
political dues. Id. at D50. Ray responded that a group had
decided not to pay political dues because they needed the money
for their children. Id. Adams asked Ray if he heard "folks"
talking to him and punched him on the right side of his face.
Id. at D51-53. Ronnie Sloan then said "I got something for you" and hit
Ray in the midsection with a baseball bat. Id. at D53-57.
Coleman testified that Thomas had not told Sloan to hit Ray with
a baseball bat, but when asked on cross-examination whether
Thomas had told anyone to hit Ray, Coleman responded: "He didn't
have to. He's a governor." Id. at D127.
Coleman testified that Ray had not threatened anyone before
Adams and Sloan assaulted him. Id. at D55-57. But after Sloan
hit Ray with the bat, someone in the house yelled that Ray had a
gun, and Coleman heard two or three shots. Id. at D57-D58.
Coleman ran to the back of the house and saw Thomas standing in
the dining room near Ray. Id. at D58-D59. Coleman tried to go
out the back of the apartment, but when he could not, he ran back
to the front of the house. Id. at D59. He heard about two or
three more shots and hid in a closet. Id. at D60.
Coleman testified that after the shooting stopped, he ran to
the front room and saw that a man in a wheelchair, identified as
James Howe,*fn2 had been shot. Id. at D61. Howe asked
Coleman to take him to the hospital, so Coleman carried him
outside and put him in Thomas' car. Id. Ray was laying outside
the house near a gun. Id. at D61-D62. After placing Howe in
Thomas' car, Coleman put Ray in Thomas' car. Id. at D62. Thomas
told Coleman not to put Ray on his seat, so Coleman put Ray on
the car floor. Id. at D62-63. Coleman found Ray and Thomas'
guns in the alley behind Thomas' house and sold one of them.
Id. at D63-D64. Later that day, Thomas and Adams came to
Coleman's house and asked him about the gun. Id. at D65.
Coleman told them his sister had it, and they told him they would
be back for it. Id. at D65-D64. Coleman went to his mother's
home and then went to the police station. Id. at D67. When cross-examined by Beuke, Coleman admitted that when he
testified before the grand jury, he used a false name: Terrence
Brown. Id. at D90-91. Ronnie Sloan's attorney Herbert Goldberg
elicited from Coleman that he had used the false names Deshawn
Coleman and Deshawn Atkins in the past. Id. at D118. He also
admitted that he was on probation at the time the shooting
occurred and lied to the police and state's attorneys on
September 28, 1995 when he told them he had been out of the gang
for five years. Id. at D118, D122. In response to questioning
by Beuke, he explained that he had lied because there was a
warrant for this arrest. Id. at D94. Coleman denied serving as
a police informant in 1995, id. at D82, but a detective later
testified that Coleman had been an informant. Id. at DD48.
Coleman said he did not remember telling the police that he saw
the victim holding the gun and firing wildly. Id. at D100. But
Beuke read into the record the part of Coleman's grand jury
testimony in which he said he saw Ray holding the gun and
shooting. Id. at D103. Later on redirect, Coleman said that
Adams and Ronnie Sloan were wrestling with Ray when Coleman heard
the first gunshots. Id. at D141.
On cross-examination by Beuke, Coleman said that he remembered
telling the grand jury that as he ran to the back of the house,
he saw Thomas run toward the front room with a gun. Id. at 104.
Coleman also said he had told the police that he saw Thomas
trying to get the back door of the house open and although
Coleman did not know whether Thomas could get the door open,
Coleman could not. Id. at D108. Coleman said Thomas broke out a
window and jumped. Id.
The State's other key eyewitness was Karrience Golden, Ray's
best friend. Trial Tr. (Aug. 8, 1997) at E6. Golden testified
that at the time of the shooting, he had been a Gangster Disciple
for nine years, and James Howe, who was wheel-chair bound, was
his regent. Id. at E6-E7. Golden said he and Ray were on the South Side around noon on
September 26, 1995, when Howe approached in a car with his
girlfriend. Id. at E10. Golden went with Howe to drop off
Howe's girlfriend, and then they picked up Ray. Id. at E11.
Howe told Golden to drive them to Thomas' home but did not tell
them why. Id.
According to Golden, the three men entered Thomas' house, and
Ray sat on a low stool. Id. at E14-E15. Thomas asked Howe why
he wasn't paying political dues; Howe responded that "he couldn't
get up with the guys to get no money." Id. at E16-E17. Thomas
then asked Golden if he had paid his dues; Golden said no. Id.
Ronnie Sloan and his twin brothers Dave and David then entered
Thomas' house, Golden testified. Id. at E18. Thomas continued
to talk about political dues for about thirty to forty minutes.
Id. at E20. Thomas stood while he talked; Adams sat on the
couch behind Thomas; Ronnie Sloan stood in the doorway to the
dining room. Id. at E20-E21. Thomas asked Ray why he was not
paying political dues, and Ray responded that he did not have any
money and had a child. Id. at E21. Thomas sighed and went to
the back of the house. Id. at E24. Adams stood up and said
that's a governor you're talking to. Id. at E25. Thomas walked
back into the living room holding a. 380 caliber gun behind his
thigh. Id. at E25-E26. Adams walked toward Ray and punched him
on the left side of the face when Ray stood up. Id. at E26,
Golden knew Ray had a 9 millimeter gun in the front of his
pants under his shirt, but the gun was not visible. Id. at E27.
Ray tried to grab his gun, but Ronnie Sloan hit him on his side
with a bat. Id. at E28-E29. Ray got trapped in the doorway and
grabbed his gun. Id. at E29-E30. Someone in the room yelled out
that he had a gun. Id. at E30. Adams struggled with Ray for the
gun, trying to prevent Ray from shooting, so Ray was not able to
point it. Id. at E31-E32. Golden heard two gun shots, and one of the bullets hit him in the
right knee and exited his knee and hit Howe in the chest. Id.
at E32-E35. Golden dove over the couch and heard two or three
more shots about 15 seconds after the first series of shots.
Id. at E35.
When the shooting stopped, Golden could not stand, but he saw
Howe carried out of the house. Id. at E36. After the house
emptied, Thomas ran back into the front room from the dining
room. Id. Golden stood up and looked at Thomas and Thomas ran
back out. Id. Unable to walk, Golden pushed himself toward the
door on his back and pushed the door open, and someone carried
him out to the police in front of Thomas' house. Id. at
E36-E37. An ambulance transported Golden to the hospital. Id.
at E38. A few days later, Adams came to Golden's house and asked
him what he had told the police and whether he was sticking to
the story that a driveby shooting had occurred. Id. at E40-E41.
Golden told Adams that he had not told police there was a
drive-by shooting but rather had told them three people had come
into the house and there had been a struggle. Id. at E41.
Golden testified that he did not identify the three men to the
police because he was afraid of Thomas' status as a governor.
Id. at E41-42.
Beuke's cross-examination of Golden revealed that Ray sometimes
carried a gun and had gone to get his gun before Golden and Howe
drove him to Thomas' home. Id. at E48-E50. Ray showed Golden
and Howe the gun before Ray got into the car. Id. at E62.
Golden said the bullet that hit him came from Ray's gun, id. at
E60, and he admitted that after he dove over the couch, he did
not see who fired the other shots. Id. at E63. Golden said he
had never met Thomas, Adams or Ronnie Sloan before September 26,
1995. Id. at E51-E52. He did not remember someone named
Terrence Brown or Lashon Coleman being at Thomas' house, nor did
he recognize Coleman in court as someone who had been in Thomas'
house when the shooting occurred. Id. at E53-54. Golden said he had gotten out of jail
only a couple of months before the shooting, id. at E55-E56,
and that he, Howe and Ray were smoking marijuana on the way to
Thomas' house. Id. at E62-63.
After receiving treatment at Holy Cross Hospital, Golden told a
detective who came by to question him that he and Howe had gone
to Thomas' house to watch television and that fifteen minutes
after they arrived, they heard something. Id. at E71-E72. He
said one of the men in the apartment went to the door and began
struggling with the offender. Id. Someone in the apartment said
"he's got a gun" and then he heard shots. Id. at E72-E73.
Golden said the men gathered in Thomas' apartment did not fire
any of the shots, rather they all tried to get away. Id. at
E73. He claimed that he threw his leg up to block his face and
after he was shot, he dove over the couch. Id. An assistant
state's attorney came to Golden's house a year later, told him
they were prosecuting Thomas, Adams and Sloan, and wanted to know
the whole story. Id. at E77-78. Golden said he lied in his
earlier statement to police because Adams had told him to go
along with the drive-by shooting story. Id. at E79-E80.
The parties stipulated that the bullet removed from Ray was
fired from a.380 caliber gun. Id. at E131. The doctor who
performed an autopsy on Ray testified that there was no evidence
that Ray's fatal gunshot wound to the left chest was
self-inflicted. Id. E124, E127-28. She also testified that Ray
had cuts on the left side of his face consistent with having been
punched. Id. at E124, E131. She said Ray did not have bruising
on his mid-section or arms but said that if someone died soon
after being hit, bruises might not develop on his body but may
develop on his face because the face bruises more easily. Id.
One of the police officers who arrived at the scene shortly
after the shooting testified that he found shell casings for a .380 caliber weapon on the floor by
the foyer door, in the living room and in the dining room. Trial
Tr. (Aug. 7, 1997) at D147-49. Detective Thomas Coughlin
testified that as Thomas was being treated for a cut on his chin
and scrapes on his elbow at St. Bernard's Hospital the day of the
shooting, Thomas told him that he had been seated on his front
porch with Adams, Ronnie Sloan, David Sloan and a woman when
three black men pulled up in front of his house in a red,
four-door Chevy. Id. at DD13-DD14, DD18. Coughlin said Thomas
claimed one of the men got out of the car holding a pistol. Id.
at DD14-15. Thomas said he heard two or three shots as he ran
through his apartment to the back porch, where he broke a window
with his elbow and crawled out. Id. at DD15. Thomas saw the red
Chevy drive northbound on Marshfield, and he went inside his home
and saw Howe sitting on the living room floor. Id. at DD16.
Howe said he had been shot, so Thomas helped him into his car and
drove him to the hospital. Id. While driving back to his house
to find Ronnie Sloan, Thomas noticed Ray laying in the back seat
of his car. Id. Thomas slapped Ray, and when he was
unresponsive, Thomas drove back to the hospital. Id. at DD17.
Detective Joseph Fine testified that when he interviewed Thomas
at the police station on September 28, 1995, he told Thomas what
Coleman and Ronnie Sloan's brother David had told police. Thomas
responded that what they said was true, "that he tried not to
push Clifford Ray into pulling a gun," that he knew Ray had a gun
and "he tried everything he could to not . . . hurt that boy."
Id. at DD35, DD38. When he was cross-examined by Adams'
attorney Frank Edwards, the detective testified that Coleman had
told him that he had been summoned to Thomas' house for nation
business and was hoping it concerned the sale of concert tickets.
Id. at DD61. The detective also testified that Coleman told him
that after Ray was hit with the bat, Ray pulled out a gun and began shooting. Id. at DD62-DD63.
At the close of the prosecution's case, all three defendants'
attorneys moved for a directed finding of not guilty. Beuke
argued that the State's case was based on the incredible
testimony of convicted felons who gave multiple stories to the
police and, in Coleman's case, the grand jury. He emphasized the
inconsistencies between Coleman and Golden's accounts and
Coleman's lie to the court that he was not an informant. Beuke
tried to discredit the testimony that Thomas had confessed,
pointing out that all statements in the case but that one were
written down and that when an assistant state's attorney spoke
with Thomas, he denied making a statement. Id. (Aug. 8, 1997)
at E189. Beuke and Edwards argued that no one had testified that
Thomas told Adams or Sloan to beat Ray, id. at E179, E196, and
Goldberg said the State had failed to present evidence that the
fatal shots came from Thomas' gun. Id. at E190. In response,
the State listed the many points on which Coleman and Golden
agreed, arguing the inconsistencies amounted only to collateral
impeachment. Id. at E199-E202. Judge Karnezis denied the motion
without further explanation. Id. at E207.
The defense case consisted of one witness and several
stipulations. Officer Anna Fox testified that Golden gave several
versions of events when she spoke with him after the shooting in
front of Thomas' house. Id. at E212. The parties made several
stipulations. The parties stipulated that an assistant state's
attorney and Detective Fine would testify that on September 28,
1995, they interviewed Terrence Brown, who said he had been out
of the Gangster Disciples for five years and that Ronnie Sloan
hit Ray with a baseball bat. Id. at E226-27. The parties agreed
that a court reporter present when Brown was questioned would
testify that Brown had said Ray started shooting and that he saw
the gun in Ray's hand Id. at E227-28. The parties also stipulated that Detective Fine would testify that Brown had
said Ray started shooting wildly and everyone started running,
that Brown had picked up Ray's gun and put it in his waistband,
and that he would have taken the other gun if he could have
grabbed it without being seen by rival gang members. Id. at
E230. The parties also agreed that a police officer would testify
that on April 10, 1995, he arrested Ray for aggravated discharge
and possession of a firearm, Trial Tr. (Aug. 12, 1997) at G8-G9,
and that another police officer would testify that he arrested
Ray on April 26, 1995 for possession of a firearm and on July 4,
1995, for aggravated assault and possession of a firearm and that
charges from both offenses were pending at the time Ray died.
Id. at G9-G10.
Judge Karnezis admonished each defendant of his right to
testify and to remain silent and asked each if he wanted to waive
his right to testify. Each defendant said he wished to do so.
Id. at G11.
Beuke's closing argument was much like his argument for a
directed finding. He argued Coleman and Golden were not credible
and gave contradictory accounts of the events. He pointed out
that neither Coleman nor Golden saw who fired the bullet that
killed Ray. Id. at G20, G22. Goldberg set forth in his closing
argument what the prosecution had to prove and argued it had
failed to meet its burden. Edwards argued that the prosecution
had failed to present evidence of a common scheme or plan to kill
Ray. Id. at G39.
The prosecution's closing argument is worthy of mention because
it included the legal theories that Thomas has challenged at
various times on direct appeal and collateral review. The
prosecutor argued that all three defendants were legally
accountable for Ray's murder because when people conspire to
commit a battery, each person is responsible for the conduct of
the others in furtherance of the battery. Id. at G58. He said: "the
common criminal design of these three defendants was to violate
Clifford Ray for not paying the dues and for disrespecting the
governor. And they each acted in furtherance of that common
goal." Id. He argued that shooting Ray was not justified even
if Ray had fired his gun, because "after Andre goes and gets the
gun, not only do they disarm the victim, not only are they able
to restrain the victim to the extent where he ends up shooting
his own best friend and the guy he drove with, they have him teed
up like a golf ball so Andre can come back and shoot him right
smack dab in the middle of the chest." Id. at G58-G59.
The prosecutor stated that under 720 ILCS 5/7-1, "a person is
justified in the use of force against another when and to [the]
extent he reasonably believes such conduct is necessary to defend
himself or another against such others' imminent use of in the
case of a murder, great bodily harm or deadly force." Id. at
G59. And under 720 ILCS 5/7-4, "if a person initially provokes
the use of force against himself with the intent to use such
force as an excuse to inflict bodily harm upon his assailant, he
can't claim self-defense unless such force is so great he
reasonably believes that he's in imminent danger of death or
great bodily harm and he has exhausted every reasonable means to
escape such danger." Id. at G61. The prosecutor said Ray did
not pose an imminent threat and Thomas did not try to escape.
Id. at G61-62. He concluded by saying that Ray, as a victim of
a forcible felony, had a right to defend himself. Id. at G63.
Following the closing arguments, Judge Karnezis rendered his
decision. He explained:
There were a couple of things there is no question
about in this case. There is absolutely no question
that Clifford Ray is dead. There is absolutely no
question that Clifford Ray died as the result of a
gunshot wound to the chest. There is absolutely no
question in this case that on that date, . . .
September 26, 1995 on the south side of Chicago,
Clifford Ray went to that location on South
Marshfield with a gun.
There are questions about other things. There are
questions as to whether these individuals, Mr.
Thomas, Mr. Sloan and Mr. Adams, are accountable for
any conduct which occurred therein. Accountability, a
person is legally responsible for the conduct of
another person when either before or during the
commission of an offense and with the intent to
promote or facilitate the commission of an offense,
he knowingly solicits, aids, abets, agrees to aid or
attempts to aid the other person in the planning or
commission of an offense.
Id. at G64-G65. Saying, "[i]n for a penny, in for a pound," the
judge found each defendant guilty of first degree murder. Id.
Thomas filed a direct appeal, arguing: (1) he was entitled to
raise a claim of self defense because the prosecution failed to
prove he was accountable for the actions of his co-defendants
and, therefore, the initial aggressor; (2) he was denied a fair
trial because the State tried to convict him on the basis of his
role in the Gangster Disciples; (3) he was not proven guilty
beyond a reasonable doubt because Coleman and Golden could have
been prosecuted for Ray's death and their testimony was
inconsistent and substantially impeached; and (4) he should not
have been tried with his co-defendants because the evidence
against them tainted the fairness of his trial. Resp. Ex. A. The
appellate court affirmed his conviction, People v. Thomas,
307 Ill. App.3d 1076, 760 N.E.2d 1063 (1999) (table). Petitioner
sought review of the decision by the Illinois Supreme Court. In
his petition for leave to appeal, he argued that he should not
have been convicted under the theory of accountability because
the prosecution failed to rebut his claim of self defense and the
Judge failed to consider his reasonable or unreasonable belief
that his actions were justified. Resp. Ex. E. The court denied
his petition. People v. Thomas, 187 Ill.2d 589,
724 N.E.2d 1274 (2000) (table). State post-conviction petition
Thomas then filed a pro se post-conviction petition, in which
he argued that he was denied due process of law in that (1) he
was prosecuted under the accountability theory even though he was
a principal, depriving him of his claim of self defense; (2) the
trial court relieved the prosecution's burden of proving Thomas
had acted without lawful justification; and (3) the trial court
prevented Thomas from cross-examining Golden as to his motive for
testifying falsely against him. Resp. Ex. G ¶¶ 6-9. Thomas also
claimed he was deprived of effective assistance of counsel in
violation of the Sixth Amendment because his attorneys advised
him against testifying on his own behalf, stipulated that the
victim was fatally shot with a .380 caliber weapon and failed to
(1) conduct an independent investigation and interview all
witnesses relevant to Thomas' self-defense claim; (2) research
the legal defenses to first-degree murder; (3) subpoena Dave
Sloan to testify; (4) present any evidence that Thomas acted in
self defense or defense of his home; (5) argue Thomas' reaction
to the victim's conduct constituted at most second-degree murder;
(6) ask the trial court to sever Thomas' trial from that of his
co-defendants; and (7) file a motion to suppress ballistics
evidence. Id. ¶¶ 10-11. In denying Thomas' petition on August
18, 2000, Judge James Linn addressed only the ineffective
assistance of counsel claim, stating:
Andre Thomas has brought a Post-Conviction Petition.
The Court did have a chance to review this.
He is complaining now that he took his lawyer's
advice by not testifying, and although he told him he
wanted to testify, he didn't testify because he took
his lawyers advice.
He had two lawyers: Chuck Engles [sic] and Richard
Beuke. Both of them are superb, seasoned lawyers.
Everything I read in the Petition appears that it was
a very good judgment call on their behalf not to call
him as a witness, albeit he was convicted and
sentenced to a lengthy penitentiary sentence. I do not find that anything in the Petition indicates
attorney misconduct or something that would come
close to the Strickland Standard for the relief he
is some [sic] requesting.
Accordingly, his Pro Se Petition for Post-Conviction
Relief is denied.
Resp. Ex. I at 6.
With representation from the Public Defender of Cook County,
Thomas appealed, arguing the lower court had failed to consider
whether Thomas had raised a meritorious Sixth Amendment claim
that he was denied effective assistance of counsel because his
attorneys failed to call Sloan to testify and refused Thomas'
requests to testify on his own behalf. Id. at 7-13. In an
unpublished order, the appellate court affirmed the denial of
Thomas' post-conviction petition. People v. Thomas, No.
1-00-3519 (Ill.App. Nov. 27, 2002). Thomas filed a petition for
rehearing, which was denied on January 31, 2003. Resp. Ex. N.
Thomas again sought leave to appeal to the Illinois Supreme
Court, arguing first, that the appellate court did not apply the
appropriate standard for determining whether Thomas had raised
the "gist" of a constitutional claim in alleging his attorneys
refused to let him testify and failed to call Dave Sloan to
testify, and second, that the trial judge erred in basing his
holding on his knowledge of the attorneys' skills rather than
considering Thomas' claims of specific incidences of ineffective
assistance. Resp. Ex. O. The court denied leave to appeal.
People v. Thomas, 204 Ill.2d 680, 792 N.E.2d 312 (2003)
Thomas filed his pro se habeas corpus petition with this
Court on October 31, 2003.
Exhaustion & Procedural Default
The Court cannot reach the merits of Thomas' claims if he
failed to "provide the state courts with a full and fair
opportunity to review" them. Moore v. Parke, 148 F.3d 705, 708
(7th Cir. 1998) (citing Picard v. Connor, 404 U.S. 270, 276 (1971),
and Boerckel v. O'Sullivan, 135 F.3d 1194, 1196 (7th Cir.
1998)). To provide the state courts with a "full and fair
opportunity" to review his claims, the petitioner must "have
exhausted his state remedies and have avoided procedurally
defaulting his claims during the state court proceedings." Id.
(citing 28 U.S.C. § 2254(b), (c) and United States ex rel.
Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990)).
Respondent admits that Thomas has exhausted the claims raised in
his habeas petition, see Answer at 9, thus exhaustion is not at
issue in this case. However, Respondent argues that Thomas has
procedurally defaulted his first and second claims and part of
his third claim. Id.
As we have noted elsewhere, "[p]rocedural default occurs when
the petitioner fails to present a claim to the state courts at
the time, and in the way, required by the state, or when a state
court has declined to address a federal claim because the
petitioner failed to satisfy an independent and adequate state
procedural requirement." U.S. ex rel. Bradford v. Gilmore, 98 C
1593, 2000 WL 549489, at *3 (N.D. Ill. May 1, 2000) (citations
omitted). In Illinois, an issue that could have been raised on
direct appeal but was not is forfeited, as are those claims the
petitioner could not have raised on direct appeal but failed to
raise in a state post-conviction petition. Id. (citations
omitted). When presenting a claim to the state court, the
petitioner "must present his claims in such a way as to `fairly
alert the state court to any applicable [federal] constitutional
grounds for the claim.'" Bocian v. Godinez, 101 F.3d 465, 469
(7th Cir. 1996) (quoting Green v. Peters, 36 F.3d 602, 605
(7th Cir. 1994)). The Seventh Circuit has explained that to
do so, the petitioner must submit "both the operative facts and
the controlling legal principles of a constitutional claim" to
the state court. Id. (citing Verdin v. O'Leary,
972 F.2d 1467, 1474 (7th Cir. 1992)). And the petitioner "must give
the state courts one full opportunity to resolve any constitutional issues by invoking one complete round
of the State's established appellate review process." O'Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999). Respondent argues Thomas
failed to do so.
Thomas' first claim is that a principal cannot be convicted
under the accountability theory. He first made this argument in
his pro se petition for relief under the Illinois Post
Conviction Hearing Act. See Resp. Ex. G ¶ 7. However, he did
not raise this claim when he appealed the denial of his
post-conviction petition, see Resp. Ex. I, or in his PLA filed
with the Illinois Supreme Court. See Resp. Ex. O. Therefore, he
failed to pursue the claim through a full round of
Petitioner did raise a related claim on direct appeal of his
conviction. He claimed he was entitled to argue he acted in self
defense because the prosecution had failed to prove he was
accountable for the actions of his co-defendants. Resp. Ex. A. He
then sought leave to appeal to the Illinois Supreme Court,
arguing the appellate court erred in finding he was not entitled
to raise a claim of self defense on the ground that a rational
trier of fact could have found he was accountable for his
co-defendants' actions and was, therefore, an initial aggressor.
Resp. Ex. E.
Thomas' argument on direct appeal that his accountability for
the acts of Adams and Sloan had not been proven did not preserve
the claim he raises here. To be sure, the argument was based on
the same facts as his argument that a principal cannot be
convicted under the accountability theory. But the Seventh
Circuit recently reminded us that "the fact that two different
claims arise from a common set of facts is not enough to avoid
default." Sweeney v. Carter, 361 F.3d 327, 333 (7th Cir.
2004) (citations omitted). Though "`a mere variation in legal
theory' does not automatically lead to a finding of failure to
exhaust," and "a petitioner may reformulate her claims so long as the substance of the claim
remains the same," id. (citations omitted), such is not the
case here. The substance of the claim Thomas pursued on direct
appeal is distinct from the one he makes today. On direct appeal,
Thomas challenged the sufficiency of the evidence showing him
accountable for his co-defendants' conduct, see Resp. Ex. A at
14-19; in his federal habeas petition, Thomas challenges the
propriety of using the accountability theory to convict a
principal. These claims are logically distinct, and Thomas'
briefs on direct appeal did not raise the legal arguments offered
today. Therefore, Thomas has defaulted his first claim.
Construed liberally, Thomas' second claim challenges the
sufficiency of the evidence particularly, the evidence that he
was accountable for the actions of his co-defendants. Thomas
challenged the sufficiency of the evidence on direct appeal,
Resp. Ex. A at 14-19, and in his petition for leave to appeal to
the Illinois Supreme Court. Resp. Ex. E. Because Thomas pursued
his sufficiency claim through an entire round of direct review,
he preserved the claim. Accordingly, we must consider his
challenge to the sufficiency of the evidence on the merits.
However, the Court will not consider Thomas' assertion that Judge
Karnezis failed to take certain evidence into consideration
because there is no indication in the record that Judge Karnezis
failed to consider the evidence presented to him.*fn3
We also must consider Thomas' ineffective assistance of counsel
claim on the merits. Respondent admits Thomas has not
procedurally defaulted his claim that he was denied effective
assistance of counsel because his attorneys failed to interview
and call Dave Sloan as a witness, and refused Thomas' requests to
testify on his own behalf. Answer at 12. Respondent does argue that Thomas defaulted his claim that he was denied
effective assistance of counsel because his trial attorneys
failed to present evidence in support of his claim of self
defense. But Thomas responds by explaining that he only has two
grounds for claiming ineffective assistance of counsel and that
his allegation that his attorneys failed to put on any evidence
of self-defense is not an independent ground for relief but
rather is subsumed by his claims that they failed to call him and
Dave Sloan to testify. Pet.'s Resp. at 16. Because Thomas does
not argue that his attorneys' failure to put on evidence of
self-defense is a separate ground for a finding of ineffective
assistance, we need not consider whether that argument was
defaulted as Respondent claims.
Thus Thomas has defaulted only one of the claims raised in his
federal habeas petition: that a principal cannot be convicted
under the accountability theory. Usually, we would consider
whether Thomas falls within an exception that would allow the
Court to consider his defaulted claim, that is whether Thomas has
demonstrated "either `cause' and actual `prejudice'" for
defaulting the claim or that he is "actually innocent." Bousley
v. United States, 523 U.S. 614, 622 (1998) (citations omitted).
However, we need not do so here because even if Thomas had not
defaulted his first claim for relief, we would not be able to
review it because it is based entirely on state law.
Although Thomas generally alleges in his first claim for relief
that he was "denied a fair trial, due process and equal
protection" all guarantees of the United States Constitution
his argument relies almost exclusively on state cases that do not
engage in federal constitutional analysis. Thomas cites a few
federal cases either for their statement of Illinois law or the
proposition that evidence of gang membership should be excluded.
See Pet.'s Resp. at 2-5. But his argument that a principal cannot be convicted under the
accountability theory is premised entirely on state law. The
Court can "entertain an application for a writ of habeas corpus
in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a) (emphasis added). Therefore, even
if Thomas had not defaulted his legal challenge to the
application of the accountability theory to principals or had an
excuse for his default, the Court could not consider his claim
because it does not raise an issue of federal constitutional law.
Review on the Merits
The Court cannot grant a writ of habeas corpus "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 Supreme Court of the United States; . . ."
28 U.S.C. § 2254(d)(1). The Supreme Court has explained that "the phrases
`contrary to' and `unreasonable application of' have independent
meaning." Washington v. Smith, 219 F.3d 620, 628 (7th Cir.
2000) (citing Williams v. Taylor, 529 U.S. 362, 404 (2000)).
A state court's decision is "contrary to . . . clearly
established Federal law as established by the United States
Supreme Court," if the state court's decision is "`substantially
different from relevant [Supreme Court] precedent.'" Id.
(quoting Williams, 529 U.S. at 405). More precisely, a state
court's decision falls within the "contrary to" clause if "the
state court applied a rule that contradicts the governing law as
expounded in Supreme Court cases or where the state court
confronts facts materially indistinguishable from a Supreme Court
case and nevertheless arrives at a different result." Id.
"However, if the state court applied the proper rule, yet reached
a conclusion that the federal habeas court would not have
independently reached, the federal court cannot grant the writ
based on the `contrary to' clause." Id. (emphasis in original;
citing Williams, 529 U.S. at 406).
The Supreme Court has explained that "[u]nder the `unreasonable
application' clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle
from this Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case." Williams, 529
U.S. at 413. The Court has emphasized that "an unreasonable
application of federal law is different from an incorrect or
erroneous application of federal law." Williams, 529 U.S. at
412 (emphasis in original); see also Lockyer v. Andrade,
538 U.S. 63, 75 (2003) ("The `unreasonable application' clause
requires the state court decision to be more than incorrect or
erroneous."). That is, "[u]nder § 2254(d)(1)'s `unreasonable
application' clause . . . a federal habeas court may not issue
the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly." Williams,
529 U.S. at 411. "Rather, the application must be objectively
unreasonable" for the federal habeas court to issue the writ.
Andrade, 538 U.S. at 76 (citing Williams, 529 U.S. at 409).
We review the Illinois appellate court's decisions with these
principles in mind.
1. Sufficiency of the evidence
When a federal court reviews a claim that the State's evidence
was insufficient to prove the petitioner's guilt beyond a
reasonable doubt, the court must determine "whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original;
citation omitted). But the Court is not reviewing Thomas'
sufficiency claim in the first instance. Rather, the Court must
ask whether the Illinois appellate court's denial of Thomas'
sufficiency claim was "contrary to" or an "unreasonable
application of" federal law.
The state court set forth the proper standard for reviewing
Thomas' insufficiency claim. The Court then outlined the elements
essential to proving a defendant guilty under the accountability
In order to convict a defendant under the theory of
accountability, the prosecution must prove beyond a
reasonable doubt that: "(1) the defendant solicited,
aided, abetted, agreed or attempted to aid another
person in the commission of the offense; (2) the
participation took place either before or during the
commission of the offense; and (3) the defendant had
a concurrent, specific intent to promote or
facilitate the commission of the offense." [People
v.] Jones, 302 Ill. App.3d [892,] 901 [(1998)];
People v. Martin, 271 Ill. App.3d 346, 351,
648 N.E.2d 992 (1995); 720 ILCS 5/5-2(c) (West 1994).
Events surrounding and following the commission of a
crime are sufficient evidence to establish
participation in the crime for the purposes of
accountability. Jones, 302 Ill. App.3d at 901;
Martin, 271 Ill. App.3d at 352.
People v. Thomas, No. 1-97-4302, slip op. at 15-16 (Ill.App.
Aug. 27, 1999). The appellate court concluded that when the
evidence was viewed in the light most favorable to the
prosecution, it supported Thomas' conviction under the
accountability theory. The Court explained:
The testimony of Coleman and Golden established that
the course of events culminating in the victim's
beating and shooting began when members of the
Gangster Disciples gathered at defendant's home,
pursuant to his request to take care of some nation
business. Such a meeting could have involved the
imposition of penalties for violations. Coleman and
Golden testified that defendant, as governor, one of
the gang's higher ranking positions, was responsible
for ensuring that the laws and policies of the gang
were honored. Failing to pay political fees,
disrespecting a governor, and breaking any laws of
policy were reasons why a member of the gang may be
violated. At the meeting, the victim revealed that he would not
be paying his political fees. In doing so, the victim
committed two violations; he failed to fulfill his
obligation to pay said fees and, in the process,
disrespected defendant, a governor. Therefore, the
conditions were ripe for violations to be imposed on
the victim. At that point, Sloan and Adams attacked
the victim, and defendant retrieved a .380
semiautomatic handgun, which was the same caliber as
the bullet found in the victim during the autopsy. At
no time did defendant order codefendants, his
subordinates, to stop their attack on the victim. It
can be inferred from the circumstances that defendant
shared a common plan with codefendants to mete out
punishment to the victim because of his violations of
gang laws and policies. In addition to his presence
at the scene of the crime, defendant did not report
the crime to the police and continued to associate
with the perpetrators following the incident. Indeed,
defendant and Adams approached Coleman to try to
recover the gun used in the shooting. Furthermore,
Adams asked Golden what story he told the police and
if he was sticking to his story. Importantly, there
is nothing in the record indicating that anyone
present during the shooting was responsible, other
than defendant and his codefendants.
Id. at 17-19. The appellate court reasoned that because "a
rational trier of fact could find the essential elements of the
offense of first-degree murder beyond a reasonable doubt under
the accountability theory," Thomas "was not entitled to raise
self-defense as an affirmative defense." Id. at 19.
Accordingly, the court did not consider whether the State had
failed to rebut Thomas' claim of self-defense beyond a reasonable
The Court cannot say the appellate court's decision was
contrary to or an unreasonable application of federal
constitutional law. The evidence, viewed in the light most
favorable to the prosecution, showed that Thomas, a governor of
the Gangster Disciples, convened a meeting at his home to discuss
"nation" business. Nation business includes beating and in some
circumstances, killing gang members who have violated the rules
of the gang. Ray was brought to the meeting by a regent of the
gang, and Thomas immediately questioned Ray about his failure to
pay dues. Ray said he would not pay his dues. In response, Thomas
retrieved a gun, Adams punched Ray in the face, and Sloan hit him
with a baseball bat. A rational trier of fact could conclude from these facts that Thomas was accountable
for Adams and Sloan's conduct. And even though neither Coleman or
Golden testified that they saw Thomas shoot Ray, the
circumstantial evidence supported the conclusion that he was the
In Illinois, self defense is not available to a defendant who:
(a) Is attempting to commit, committing, or escaping
after the commission of, a forcible felony; or
(b) Initially provokes the use of force against
himself, with the intent to use such force as an
excuse to inflict bodily harm upon the assailant; or
(c) Otherwise initially provokes the use of force
against himself, unless:
(1) Such force is so great that he reasonably
believes that he is in imminent danger of death or
great bodily harm, and that he has exhausted every
reasonable means to escape such danger other than the
use of force which is likely to cause death or great
bodily harm to the assailant; or
(2) In good faith, he withdraws from physical contact
with the assailant and indicates clearly to the
assailant that he desires to withdraw and terminate
the use of force, but the assailant continues or
resumes the use of force.
720 ILCS 5/7-4. Viewed in the light most favorable to the
prosecution, the evidence showed that Adams and Sloan struggled
with Ray for control of the gun. The fact that Ray shot his
friends Golden and Howe suggested that Adams and Sloan had
prevented Ray from aiming the gun and would subdue him if they
had not already done so. The evidence also showed that Thomas
shot Ray even though Thomas could have fled as he eventually did
after shooting Ray. Under these circumstances, a rational trier
of fact could find beyond a reasonable doubt that Thomas could
not have reasonably believed he was in imminent danger and did
not exhaust every reasonable means to escape the danger,
including withdrawing from the scene or subduing Ray without the
use of force that was likely to cause death or great bodily harm.
Furthermore, a rational trier of fact could find beyond a
reasonable doubt that Thomas gave Ray no indication that he would
walk away from the show of violence. Therefore, the Court cannot
conclude that the state appellate court's decision rejecting Thomas'
sufficiency claim was contrary to or an unreasonable application
of federal law.
2. Ineffective assistance of counsel
The Court also must consider whether the appellate court's
decision rejecting Thomas' ineffective assistance of counsel
claim was contrary to or an unreasonable application of federal
law. The Illinois appellate court properly cited Strickland v.
Washington, 466 U.S. 668 (1984), as the Supreme Court precedent
applicable to Thomas' ineffective assistance of counsel claim.
Under Strickland, a petitioner can only prevail on his claim of
ineffective assistance of counsel if he can show that his
"counsel's performance was deficient" and "the deficient
performance prejudiced the defendant," meaning "counsel's errors
were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable." Strickland, 466 U.S. at 687.
To satisfy the first component of this standard, the petitioner
"must show that counsel's representation fell below an objective
standard of reasonableness." Id. at 688. This is a "highly
deferential" standard. Id. at 689. Thus the Court "must indulge
a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action `might be considered sound
trial strategy.'" Id. (citing Michel v. Louisiana,
350 U.S. 91, 101 (1955)). Because the Illinois appellate court correctly
identified the governing Supreme Court principle, the Court may
only grant the writ if we find the state court "unreasonably
applie[d] that principle to the facts of [Thomas'] case."
Williams, 529 U.S. at 413.
Thomas made the same arguments before the Illinois appellate
court as he does here: that he was denied effective assistance of
counsel because his attorneys failed to call Dave Sloan to testify and discouraged Thomas from testifying on his own behalf.
In support of his claims, Thomas provided the appellate court
with his own affidavit and affidavits from Dave Sloan, Patricia
Lowe, Stanley Thomas and Bonia Smith.
Sloan's affidavit states that he and his brothers, David and
defendant Ronnie, went to Thomas' house on September 26, 1995 to
see if Thomas had hung flyers they had given him advertising a
party they were hosting. Sloan Aff. at 1. As they drove up, he
saw Coleman enter Thomas' house. Id. When the Sloans arrived,
Thomas was with Adams, Coleman, Howe, Golden and Ray. Id. Howe
told Thomas that he was having a hard time collecting political
dues, and Thomas asked why. Id. Ray said a group vote had been
taken, and the group had decided not to pay political dues. Id.
Thomas asked Howe if what Ray said was true, but before Howe
could respond, Ray said it was true and they did not have money
for political dues because they had children to take care of.
Id. Thomas told Ray that he was talking to Howe, and Ray
responded that he was speaking for Howe. Id. at 2. Adams then
walked toward Ray and asked him who he thought he was. Id. Ray
stood up, and Adams hit him in the face. Id. Ray then reached
under his shirt and yelled "nigga I'm gonna blast your ass."
Id. Someone then yelled, "look out, he got a strap" (slang for
a gun), and everyone started running away from Ray, who started
shooting wildly throughout the front room. Id. Sloan ran into a
bedroom. Id. He heard a few more shots, and then he saw Thomas
run toward the back of the house with a gun in his hand Id.
Sloan states that he never saw Ronnie Sloan hit Ray with a bat
nor saw Thomas display a gun before Ray began to fire his gun.
Id. Dave Sloan concludes his affidavit by stating he would have
testified thus at trial had he been called by the defendants to
do so. Id.
Thomas' account of the events that transpired on September 26,
1995, is similar. Thomas says Howe, Golden and Ray came to his house unannounced as he and
Adams were getting ready to leave. Thomas Aff. at 1. Thomas began
talking with his visitors and realized that they had come over to
discuss political dues. Id. The Sloan brothers and Coleman also
came over unannounced while Thomas was speaking with Howe, Golden
and Ray. Id.
After discussing the political dues with James [Howe]
for a few minutes, the conversation quickly turned
into an altercation when Anthony Adams and Clifford
Ray exchanged words and Anthony struck Clifford once
in the face. Clifford reacted to this by reaching
underneath his shirt and yelling that he was about to
"kill this nigga." At this point someone in the room
yelled out that Clifford "had a strap," meaning
Clifford had a gun. Clifford then pulled out a gun
and began to shoot it indescriminately [sic]
throughout my home, in the process shooting both
James Howe and Karrience Golden. Fearing myself,
Anthony Adams or someone else was also about to be
shot and possibly killed by Clifford, I Andre Thomas,
returned fire and shot Clifford. At no time prior to
Clifford pulling a gun and firing did I hold any
animosities toward him, nor did I ever intend or
conspire with anyone to harm him.
I am absolutely positive that at no time did Ronnie
Sloan strike or threaten to strike Clifford with a
baseball bat, and that no-one at anytime wrestled
with Clifford over possession of his gun. The gun was
in Cliffords [sic] complete control at the time James
and Karrience were shot.
Id. at 1-2.
In addition to recounting the events leading to Ray's death,
Thomas' affidavit described his interaction with his attorneys.
Thomas says that he told his attorneys his version of events and
expected to testify. Thomas Aff. at 2.
Both attorneys felt that the case would come down to
an issue of credibility, and that based on police
reports and signed statements by the witnesses, each
witness had contradicted themselves as well as each
other, so neither would be a credible witness,
therefore the State could not convince the judge of
guilt beyond a reasonable doubt. After the State
presented it's [sic] case in which their eyewitnesses
were severely impeached numerous times, my attorneys
as well as my co-defendants [sic] attorneys, Adam
Bourgeois Jr., and, Herbert Goldberg, were equally
convinced that the State had not carried there [sic]
burden of proving my guilt beyond a reasonable doubt
because the judge could not find either of the two
witnesses [sic] testimony credible based on what he
had heard. When I reminded them that the judge had denied my motion for
a directed verdict, Rick [Beuke] stated that he felt
that if the Judge was going to find me guilty, he
would not have sent me home the weekend of August
8-9th, 1995 [sic]. Several times during this
discussion, Chuck [Ingles] told me that I should
trust each each [sic] of the lawyers [sic]
judgments because they had over one hundred years of
trial experience between them and that they had been
around "long enough to know which way the wind was
blowing after a case."
Based on my attorneys [sic] judgment of the case, as
well as the opinion of my co-defendants [sic]
attorneys that neither mine or my co-defendants [sic]
testimony would be needed in my defense, I Andre
Thomas followed this advice and did not testify in my
Id. (emphasis in original).
Thomas submitted three additional affidavits describing the
pressure his attorneys put on him not to testify. Patricia Lowe
attests that after the judge recessed the trial for the weekend,
she heard Thomas tell his attorneys that he needed to testify.
Lowe Aff. at 1. Lowe says Ingles said the judge did not like the
State's witnesses but would like Thomas even less. Beuke said the
credibility of the State's witnesses had been destroyed on cross
examination, so the judge could not believe them and the State
had failed to prove its case beyond a reasonable doubt. Id.
Rick [Beuke] told Andre that he knew Andre meant well
in wanting to take the stand, but that Andre would
cause himself more harm than good if he took the
stand when there was no need to. Rick stated that the
prosecution would seek to show Andre was a governor
in a gang which would hurt him. Andrew again told
both attorneys that he felt if he didn't testify he
might be convicted. Rick repeated that the state had
not proven guilt, and that the only thing they had
proved was that the victim was dead, but that they
had not proven that Andre had not acted in
self-defense. Rick then told Andre that in his
opinion, if Judge Karnezis was going to find him
guilty he would not have sent him home over the
On August 12, in the hall outside the courtroom and
in my presence Andre again told Chuck [Ingles] he
felt his testimony was needed in his defense. Chuck
told Andre to trust him and Rick because they as well
as the other three attorneys involved in the case
knew what they were doing since each of them had over
twenty-years experience in practicing law, with most
of Rick's being as prosecutor, that between them all
was over one hundred years of experience, that either
of them could be judges themselves and that in fact
one of them representing Adams had been a judge.
Chuck then said that each attorney had been around long enough to know which way the wind
was blowing at the end of a trial.
Rick walked up and Andre again questioned him as to
what he should do. Rick told us he didn't see how
Judge Karnezis could convict based on the evidence he
had heard so far and again advised Andre against
testifying. After this last talk with Rick, Andre
consented that he would not be called in his defense.
Id. at 1-2. Stanley Thomas and Bonia Smith filed substantively
After reciting the substance of these affidavits, the Illinois
appellate court set forth the Strickland standard for reviewing
an ineffective assistance of counsel claim. People v. Thomas,
No. 1-00-3519, slip op. at 7 (Ill.App. Nov. 27, 2002). The court
pointed out that "[d]ecisions by trial counsel that are
considered to be trial strategies or trial tactics ordinarily are
not reviewable in the determination of whether counsel was
ineffective." Id. at 8 (citing People v. Barrow,
133 Ill.2d 226, 248 (1984)). The court first considered Thomas' claim that
he was prevented by counsel from testifying on his own behalf.
The court said that to obtain an evidentiary hearing on the claim
that a defendant was prevented from testifying by his attorney,
"he must allege in his affidavit that `when the time came for him
to testify, [he] told his lawyer that he wanted to do so despite
advice to the contrary.'" Id. (quoting People v. Brown,
54 Ill.2d 21, 24 (1973)). The court found Thomas had not met this
Here, the record shows that the circuit court
admonished defendant that he and the other defendants
had "an absolute right to testify in this case" and
defendant stated that he understood his right; and
that his attorneys had discussed this right with him,
but he chose not to testify. In addition, defendant
admitted in his affidavit that he accepted his
attorneys' opinion and advice and, as a result, chose
not to testify. Patricia Lowe's affidavit also stated
that defendant consented not to testify in deference
to counsel's opinion and advice. Accordingly,
defendant failed to demonstrate in his petition, the
attached affidavits or the record that trial counsel
improperly prevented him from exercising his right to
Id. at 8-9. The appellate court similarly found Thomas had failed to show
his counsel acted unreasonably by not calling Dave Sloan as a
witness. The court said "[a]n informed decision regarding whether
to call a witness to testify at trial or sentencing is a matter
of trial strategy which generally cannot support a claim of
ineffective assistance of counsel," id. (citing People v.
Enis, 194 Ill.2d 361
, 378 (2000)), and the affidavits made
clear counsel were aware of Sloan's potential testimony when they
declined to call him as a witness. The court explained this
informed decision was not an unreasonable one given "that defense
counsel readily could have believed that Sloan's testimony would
have been unpredictable, biased and incredible because (1) he was
codefendant Ronnie Sloan's brother; (2) his twin brother already
had given information to the grand jury against defendant; and
(3) the record shows that Sloan sat in the courtroom during trial
and attempted to intimidate a witness as the witness testified."
Id. at 9-10.
We cannot say the appellate court's decision involved an
unreasonable application of federal law. We start with Thomas'
allegation that his trial attorneys would not let him testify on
his own behalf. Considering such a claim, the Seventh Circuit has
recognized that "[a] criminal defendant has a constitutional
right to testify in his own behalf; it is an aspect of his right
to defend himself, a right held in Rock v. Arkansas,
483 U.S. 44, 51-53 (1987), to be implicit in the Fifth, Sixth, and
Fourteenth Amendments." Underwood v. Clark, 939 F.2d 473, 475
(7th Cir. 1991) (citations omitted). The decision whether to
testify "lies in the hands of the defendant personally." Taylor
v. United States, 287 F.3d 658, 660 (7th Cir. 2002) (citing
Rock, 483 U.S. 44, and United States v. Curtis,
742 F.2d 1070, 1076 (7th Cir. 1984)). Thomas has failed to show his
attorneys relieved him of this choice. The trial transcript and
the affidavits he has submitted belie his claim that he was
denied his right to testify. All the affidavits, including
Thomas', make clear that he eventually agreed not to testify. And a
colloquy Judge Karnezis conducted during the trial shows he was
offered the chance to testify and declined to do so:
The Court: Mr. Thomas, Mr. Sloan, Mr. Adams, I'm
sure all three of you understand that at this point
you gentlemen have an absolute right to testify in
this case. You also have an absolute right to
exercise your constitutional right to remain silent.
Do you understand that, Mr. Thomas?
Q: Mr. Sloan?
Q: And Mr. Adam?
A: Yes, sir.
Q: Okay. And we assume that you have discussed this
with your attorneys, respective attorneys and you
have Mr. Thomas, you have chosen to exercise your
right to remain silent. Is that correct?
A: Yes, sir.
Q: Mr. Sloan?
A: Yes, sir.
Q: And Mr. Adams?
A: Yes, sir.
Trial Tr. (Aug. 12, 1997) at G11-G12. Thus Thomas' claim that his
attorneys overbore his will to testify is unsupported by the
evidence, and the Court cannot say the state appellate court was
unreasonable in rejecting his claim.
In his federal habeas petition, Thomas makes the related claim
that his counsels' advice against testifying was unreasonable.
Pet.'s Resp. at 22. He did not make this argument explicitly in
his initial brief appealing the denial of his post-conviction
petition, emphasizing instead that his attorneys refused his
repeated requests to testify. Resp. Ex. I at 9. However,
Respondent argued before the state appellate court that the
evidence showed Thomas agreed not to testify and that Thomas'
attorneys were not ineffective in advising him not to testify.
Resp. Ex. J at 20, 23-24. And in Thomas' reply brief, he
characterized the issue before the appellate court as whether the
advice given by his counsel was a reasonable trial strategy.
Resp. Ex. K at 8. The claim was clearly before the appellate court, so it was not defaulted. But
the appellate court did not address it. Thus there is no state
court analysis to subject to AEDPA's "contrary to" and
"unreasonable application of" standards. Rather, "we write on a
clean slate, unconstrained by any factual or legal findings."
Harding v. Sternes, 00 C 7515, 2003 WL 21321340, at * 7 (N.D.
Ill. June 9, 2003).
Counsel's decision to advise the defendant not to testify is
"often motivated by strategic considerations that command
deference from the judiciary." Hampton v. Leibach,
347 F.3d 219, 257 (7th Cir. 2003) (citations omitted). A court may not
"second-guess trial tactics that are rationally-based." United
States v. Zarnes, 33 F.3d 1454, 1473 (7th Cir. 1994)
(citations omitted). Thus, the Seventh Circuit has found an
attorney acted reasonably in advising a defendant against
testifying because the defendant would be discredited on
cross-examination, Underwood, 939 F.2d at 475, and because the
lawyer believed the government had failed to meet its burden and
did not want to abandon the strategy that resulted in a hung jury
when the defendant was first tried. Rogers-Bey v. Lane,
896 F.2d 279, 283 (7th Cir. 1990). According to the affidavits
describing the conversations between Thomas and his attorneys,
Beuke and Ingles offered several strategic reasons why Thomas
should not testify: the prosecution had failed to prove its case,
the Judge would like Thomas even less than the prosecution's
witnesses, and the prosecution would highlight Thomas' leadership
position in a gang. All three concerns were reasonable under the
Although we determined above that there was sufficient evidence
to convict Thomas of murder, that does not mean his attorneys
were unreasonable in believing the prosecution had failed to
prove its case. When reviewing Thomas' claim that the evidence
was insufficient to prove him guilty beyond a reasonable doubt, we had to view the
evidence "in the light most favorable to the prosecution" and
consider whether "any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt."
Jackson, 443 U.S. at 319 (emphasis in original). Though the
Court need not address whether we would have found Thomas guilty
of first degree murder in the first instance, after reviewing the
trial record we do not believe Beuke and Ingles were unreasonable
for believing the State had failed to prove its case. Both
Coleman and Golden were convicted felons who had given multiple
versions of events, undermining their credibility. Furthermore,
neither testified that Thomas had fired the fatal shot. And,
perhaps more importantly, the State pursued a complex legal
theory that required it to establish several elements.
Thomas' attorneys also had a reasonable basis for advising
Thomas that the judge would find him less credible than the
prosecution's witnesses. First of all, he had at least as great
an incentive to lie as did the prosecution's key witnesses, whose
credibility the defense rigorously attacked at trial. Second,
Thomas' account of the fatal events, as described in his
affidavit, seems at times self-serving and improbable. For
example, Thomas states in his affidavit that Ray started shooting
indiscriminately throughout his house and no one wrestled with
Ray for control of the gun. In contrast, Golden and Coleman
testified that Adams wrestled with Ray for control of the gun.
Golden and Coleman's account is a more likely explanation for how
Golden and Howe Ray's friends were the only ones shot with
Ray's gun. Given Beuke and Ingles' reasonable belief that the
State had failed to meet its burden and Thomas' credibility
problems as a witness, we cannot say they acted unreasonably in
advising Thomas not to testify.
But we cannot stop there. The Court also must consider Thomas'
claim that his attorneys' acted unreasonably by failing to interview and call
Dave Sloan to testify, an argument which the appellate court
addressed in its opinion. Thomas points out that he told his
attorneys that Sloan could serve as a potential witness and Sloan
had been identified in police reports and listed by the
prosecution as an occurrence witness. Pet.'s Reply at 19. But
"[t]he Constitution does not oblige counsel to present each and
every witness that is suggested to him." United States v.
Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990). "A lawyer's
decision to call or not to call a witness is a strategic decision
generally not subject to review." United States v. Williams,
106 F.3d 1362, 1367 (7th Cir. 1997). Granted, "an attorney
who fails even to interview a readily available witness whose
noncumulative testimony may potentially aid the defense should
not be allowed automatically to defend his omission simply by
raising the shield of trial strategy and tactics." Sullivan v.
Fairman, 819 F.2d 1382, 1389 (7th Cir. 1987) (internal
quotation marks and citation omitted). And "a failure to
investigate can certainly constitute ineffective assistance."
Washington, 219 F.3d at 631 (7th Cir. 2000) (citation
omitted). But "[t]he failure to investigate a particular lead may
be excused if a lawyer has made a `reasonable decision that makes
particular investigations unnecessary.'" Id. (quoting
Strickland, 466 U.S. at 691).
Although the state appellate court did not directly address
Thomas' assertion that Beuke and Ingles failed to even interview
Dave Sloan before rejecting him as a witness, the court's
decision gives justification for Thomas' attorneys to dismiss
Sloan as a potential witness without first interviewing him to
learn the intricacies of his potential testimony: he would not be
a credible witness because his brother was also on trial and his
twin brother had given damaging testimony before the grand jury.
We cannot say Thomas' attorneys acted unreasonably in deciding
not to interview Sloan or call him to testify, because they had
ample reason to believe his testimony would be more harmful than helpful. See Foster v.
Schomig, 223 F.3d 626, 631 (7th Cir. 2000) (quoting Hall v.
Washington, 106 F.3d 742, 749 (7th Cir. 1997)) (holding the
decision not to call a witness "is sound `if it is based on the
attorney's determination that the testimony the witnesses would
give might on balance harm rather than help the defendant'").
Thomas argues his counsels' decision not to call him or Dave
Sloan to testify left him "with no defense at all," which the
Seventh Circuit found in United States ex rel. Bernard v. Lane,
819 F.2d 798, 803 (7th Cir. 1987), to constitute deficient
performance. In Bernard, even though self defense was the
defendant's only defense because he had testified that he loaded
his gun thinking he might have trouble with the victim and
admitted firing the fatal shot, the defense counsel declined to
have the jury instructed on manslaughter or that to convict the
defendant of murder the State had to prove the defendant acted
without justification. The Seventh Circuit explained,
Far from being a mere tactical choice, trial
counsel's decision to withhold justification and
manslaughter instructions, in the face of the jury's
clear reluctance to find Barnard guilty of murder was
a prejudicial error which forced the jury to convict
Barnard . . . The spectrum of counsel's legitimate
tactical choices does not include abandoning a
client's only defense in the hope that a jury's
sympathy will cause them to misapply or ignore the
law they have sworn to follow.
Id. at 804-05. In contrast, Beuke and Ingles' primary defense
strategy did not hinge on Thomas and Dave Sloan's testimony.
Thomas' attorneys attacked the credibility of the State's
eyewitnesses and argued the State had not met its burden of proof
to show Thomas fired the fatal shots and acted in concert with
his co-defendants to harm Ray. Thomas was not left defenseless by
his attorneys' conduct.
In hindsight, Beuke and Ingles were overly optimistic in
believing the judge would not find the State had met its burden of proof. But "[a] fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight."
Strickland, 466 U.S. at 689. We must "evaluate the conduct from
counsel's perspective at the time." Id. The State preceded
under a relatively complex legal theory. Given the substantial
credibility problems of the State's key witnesses, Thomas'
attorneys were not unreasonable in believing the State had not
met its burden of proof. Accordingly, the Court cannot properly
second-guess the decisions made by the lawyers in reliance on
that belief. See Strickland, 466 U.S. at 689. The Illinois
appellate court did not unreasonably apply federal law in denying
Thomas' ineffective assistance of counsel claim.
For the reasons stated above, the Court denies the petition for
a writ of habeas corpus. The Clerk is directed to enter judgment
in favor of Respondent.