Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 5450-John W. Darrah, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before EASTERBROOK, Chief Judge, and BAUER and SYKES, Circuit Judges.
Jesse Smith was convicted of first degree murder and three counts of attempted murder on August 31, 1992, following a bench trial in the Circuit Court of Cook County. His conviction was affirmed on direct appeal. Believing that his trial and appellate counsel rendered ineffective assistance, Smith has been pursuing a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied his petition as procedurally defaulted, but certified for appeal the issues of his trial and appellate counsel's alleged ineffectiveness. For the following reasons, we affirm the denial of Smith's habeas petition.
We have reviewed this case before. See Smith v. Battaglia, 415 F.3d 649 (7th Cir. 2005). Much of the lengthy and somewhat convoluted procedural history that we detailed in that opinion remains relevant to this review and thus, we borrow heavily from it here.
Smith found himself in Illinois's Stateville Correctional Center for his part in a shooting incident in February 1991. Three assailants, including Smith, fatally shot Charlotte Wilson and wounded Jerome Wilson and two onlookers. Smith and a co-defendant went to trial in a joint bench trial in August 1992. Smith was represented by Attorney Lawrence Vance. Vance began by telling the judge that the evidence would show that Smith was home on the evening in question with his female partner, who would be a witness in the case. This was the only defense Vance ever mentioned, but mysteriously, at the trial he did not call Smith's partner, Carol Brown, as an alibi witness, even though she was in the courtroom and ready to testify that Smith had been with her at all relevant times. Jerome Wilson did testify, and he identified Smith as one of the shooters. (Years later, in April 1999, Wilson recanted this testimony in a sworn affidavit, in which he averred that he "did see the person who shot Charlotte Wilson and myself on the night of February 1, 1991, and it absolutely was not Jesse Smith." Later, it seems, Wilson recanted the recantation, and so it is hard to say what story Wilson would give now.)
The court found Smith guilty of one count of first-degree murder, for which it sentenced him to an extended term of 80 years' imprisonment, and three counts of attempted first-degree murder, for which it imposed concurrent terms of 30 years each. The judgment of conviction was entered on December 14, 1992. Smith appealed, arguing only that the evidence did not show beyond a reasonable doubt that he was guilty and that his sentence was excessive. He was unsuccessful; the state appellate court rejected his arguments, see People v. Barnes and Smith, 1994 WL 16175575 (1994), and on October 4, 1995, the Illinois Supreme Court denied his petition for leave to appeal. He had until January 2, 1996, to file a petition for certiorari in the United States Supreme Court, but it appears that he did not do so.
Smith filed his pro se petition for state post-conviction relief, see 725 ILCS 5/122-1, on January 12, 1996, ten days after the time for seeking certiorari had expired. In it, he claimed, among other things, that he had been denied his Sixth Amendment right to the effective assistance of both trial and appellate counsel (different lawyers) with regard to his alibi defense. In March 1996, the state circuit court dismissed the petition. It first found that the petition was untimely under 725 ILCS 5/122-1(c). . . . It went on, however, to hold in the alternative that Smith had waived his claim of ineffective assistance of trial counsel because his appellate counsel failed to raise the point on appeal. It said nothing specific about appellate counsel's possible ineffectiveness for this oversight, but it finally examined the merits of the Sixth Amendment claims and held that neither one of Smith's lawyers had performed inadequately.
After Smith appealed the circuit court's order, his appointed counsel moved to withdraw, citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Smith objected, arguing that the circuit court had erred by finding that his lawyers were not ineffective. The appellate court granted counsel's motion, stating in relevant part:
"The scope of post-conviction review is limited by the doctrines of res judicata and waiver which affect all claims actually presented in the direct appeal as well as those which could have been, but were not. Defendant's assertions of ineffective assistance of trial counsel and the trial court's prejudice are foreclosed under these principles, and defendant's remaining allegations were either refuted by the record or insufficient to require further proceedings under the Act. In addition, defendant's petition may be considered untimely under the amended statute, and the shortcomings of his post-conviction appellate counsel do not present a basis for granting the relief sought."
Illinois v. Smith, No. 91 CR 1754, slip op. at 3 (Ill. App. Ct. Nov. 14, 1996) (unpublished decision) (internal citations omitted). The Supreme Court of Illinois granted Smith's motion for leave to file a late appeal, but denied the petition for leave to appeal on October 1, 1997.
On August 28, 1998, Smith filed a pro se petition for a writ of habeas corpus in the federal court under 28 U.S.C. § 2254, again arguing that his trial and appellate counsel provided ineffective assistance. In an order dated August 11, 1999, Judge Bucklo held that Smith had raised these claims throughout his post-conviction proceedings and appointed a lawyer to represent him. The case was then administratively transferred to Judge Darrah, who granted his request for an evidentiary hearing in August 2001. At the hearing, Carol Brown (the partner) testified that Vance, Smith's trial attorney, told her that she did not need to testify even though she was present at the trial. Vance did not testify, but the parties stipulated that he would have said that he could not remember why he did not call Brown as a witness.
After the hearing, the state moved to dismiss Smith's petition as time-barred. The district court found that Smith's state post-conviction petition was indeed not properly filed because it was late, and thus that his § 2254 petition also came too late. It dismissed the petition in an order dated September 28, 2002. The court later granted Smith's request for a certificate of appealability, which included the antecedent procedural question whether the state post-conviction proceeding was untimely and the constitutional question whether Smith ...