Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 C 3393-Charles R. Norgle, Sr., Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
ARGUED SEPTEMBER 21, 2007
Before EASTERBROOK, Chief Judge, and KANNE and ROVNER, Circuit Judges.
Willie Pole was convicted of first degree murder and attempted armed robbery in the State of Illinois. He appeals the denial of his petition for a writ of habeas corpus, arguing that his attorney provided ineffective assistance at his trial and on appeal. We affirm the district court's denial of his petition.
We begin with the facts as presented at trial. Bernard Jackson went to work on September 27, 1994, even though it was his day off. Accompanied by his girlfriend, Carmania Payton, and his seven-year-old son, Terrence, he hoped to earn some extra money at the E & J Tire Service shop where he worked with his brother, Larue. Bernard arrived at the shop a few hours before its 7 p.m. closing time, joining his brother and another worker, Antoine Patillo. Patillo left work a little early that day and shortly after he left, Willie Pole arrived at the shop looking for him. Pole asked Larue where Patillo was, and Larue told him Patillo had just left. As the two men were talking, a red van pulled into the shop. Three men in the van wanted to exchange the van's tires with re-placements they were carrying in the back of the vehicle. Even though the shop's owner was about to close for the day, Bernard offered to stay and change the tires. While Bernard waited on the men in the van, Pole asked Larue whether the three men were members of the Gangster Disciples street gang. Larue replied that he did not know. Pole then used a payphone at the shop to make a call, and Larue left work to go to a nearby store. The shop's owner went to a business next door to the tire shop, leaving Bernard to work on the van.
Pole was a member of the Blackstone gang, a rival of the Gangster Disciples. After making a phone call, he left the shop and met up with other members of the Blackstones, including Ramon Hamilton. He told Ramon about the Disciples at the tire shop, and they hatched a plan to rob the Disciples of their jewelry. They drove past the shop to verify that the men were still there, and made gang signs identifying themselves and disparaging their rivals. They parked and began to approach the tire shop through the alley behind it. Pole pulled up his hood to hide his face. Ramon carried a handgun and wore a ski mask.
Two of the men that Pole believed were Disciples were standing near the van at the time. The third was inside the shop. Carmania Payton and Terrence were also standing near the van, a few feet away from Bernard as he worked to change the tires. The shop's owner was just returning because someone had come to tell him there was going to be trouble at the shop. After asking Bernard if everything was alright, the shop's owner turned to walk away. As he turned, he heard a gunshot. Although Pole now denies that he pulled the trigger, he later told the police that Ramon showed him how to release the safety, and he pointed the gun at the Disciples standing near the van and fired. He was standing forty or fifty feet away from his target at the time. The badly aimed bullet struck Bernard in the back and exited through his chest. He fell to the ground in front of his girlfriend and son, exclaiming, "I think I'm hit." The shop's owner called for everyone to get down. Willie Pole and Ramon Hamilton fled the scene. When everything appeared to be clear, everyone stood up except Bernard.
Pole placed the gun in his car, but then abandoned the car. He and Ramon fled in separate directions. Larue returned to a frantic scene. The police and an ambulance were summoned, and Bernard was pronounced dead at a nearby hospital less than an hour later. Larue and other witnesses at the scene told the police about Pole's visit to the shop, his inquiry about the men in the van, and the car that drove by flashing gang signs before the shooting. The police began to look for the car. At about this same time, Pole showed up at Ramon Hamilton's house. Ramon's twelve-year-old sister, Andrea Hamilton, answered the door. Pole asked her to walk with him to retrieve his car because there were police in the area. As Andrea and Pole walked to the car, they met Karen Wills, a friend of Andrea's, and she joined them in the walk back to the car. When they got to the car, Pole removed a gun and a glove from the car and handed them to Andrea, asking her to hide them for him. He told her he had shot a "Sipe," i.e., a Disciple, and he instructed her to place the gun in the front of her pants. All three entered the car and Pole drove Andrea home. Andrea hid the gun, still loaded except for the single spent bullet, in a drawer and placed the glove on her dresser. After dropping Andrea off, Pole told Karen Wills that he had confronted some Disciples and fired a shot at them.
Two police officers spotted Pole and Wills shortly thereafter, in a car matching the description given by witnesses to the crime. They took the two into custody and at approximately 8:30 p.m., witnesses from the tire shop confirmed that Pole was the man who had asked about the alleged Disciples and then flashed gang signs shortly before the shooting. Wills told the police that she did not know what was going on, but that Pole had given a package to Andrea Hamilton. Pole and Wills then led the police to the Hamilton home. In the meantime, Ramon Hamilton had arrived home and learned that Pole had asked Andrea to hide the gun. Ramon took the gun from Andrea's drawer and hid it outside his house. When the police arrived, Andrea told them she had given the gun to Ramon, who subsequently handed over to the police officers both the gun and the glove. Pole's name was written on the glove. The officers took Pole, Wills, Ramon and Andrea Hamilton and the Hamiltons' mother, Bonnie, to the police station for questioning.
Two officers questioned Pole at first. He told them he had gone to the tire shop to see Patillo, who owed him some money. After he saw the three men he believed were Gangster Disciples, he went around the corner and told some of his cohorts from the Blackstones that there were "Sipes" at the tire shop. The Blackstones got into two cars and drove past the tire shop. Pole told the officers that, at Ramon's suggestion, the Blackstones decided to rob the Disciples. Ramon retrieved a gun from his house, and Pole told the officers he went along because he was considered a "pigeon" or a "white boy" among the Blackstones and he wanted to prove himself. In this first statement, Pole told the police that Ramon was showing him how to work the safety on the gun when it accidentally discharged in the direction of the van. Pole told the officers that he panicked and ran.
After questioning Ramon, the officers came back to Pole and told him his story did not match Ramon's version of events. Pole then told the officers a story similar to his first account, but this time stated that Ramon was wearing a ski mask, and that Ramon directed Pole to put up his hood as they walked through the alley toward the back of the tire shop. In this second version, Pole admitted that he pointed the gun at the men near the van and fired a single shot before fleeing.
The police officers and an assistant state's attorney ("ASA"), Tom Biesty, then interviewed Andrea and Ramon Hamilton, and Karen Wills as well, taking written statements from each before returning to Pole to record his statement.*fn1 ASA Biesty took Andrea Hamilton's statement at 1:30 a.m., and she confirmed that Pole had asked her to walk to the car with him. She reported that Pole told her he had shot someone at the tire shop, and that they met up with Karen Wills on the way to Pole's car. She said that Pole asked her to hide the gun and glove once they reached the car. She had given the gun to her brother Ramon when he came home asking about it. Both Andrea and Bonnie Hamilton signed each page of Andrea's statement.
At 4:20 a.m., approximately nine hours after the shooting, ASA Biesty recorded Ramon's statement. Ramon told Biesty that Pole came to his house after spotting the Gangster Disciples at the tire shop. Pole asked Ramon for a gun so that he could rob the Blackstones of their jewelry. Ramon and Pole drove past the shop in separate cars, Ramon with three other Blackstones-Lontray, Thaddeus and Thomas-and Pole driving behind them in his own car. The group flashed gang signs and then parked in the alley behind the shop. Ramon released the safety on the gun at Pole's request, and Pole then walked toward the shop and fired a shot at the Disciples. The two fled in different directions but met up again later. Pole told Ramon that he had given the gun to Andrea. Ramon went home and retrieved the gun from Andrea and hid it near the side of his house. Both Ramon and his mother, Bonnie Hamilton, signed each page of his statement.
ASA Biesty then met with Pole to take his statement. The shooting had occurred between 7 and 8 p.m., and it was now 6:45 a.m., approximately eleven hours after Pole had been taken into custody. As ASA Biesty later testified, he sat next to Pole, read him his rights, and wrote out Pole's statement by hand. Biesty had Pole read back to him the first paragraph of the statement to make certain that Pole could read and understand it. In the statement, Pole admitted he was a member of the Blackstone gang. He told Biesty that after seeing the three men at the tire shop, he went to Ramon's house and met with Ramon, Lontray, Thaddeus and Thomas, fellow Blackstones that Pole identified only by their first names. Ramon suggested that they rob the Disciples of their jewelry. Ramon told the group that he had a gun. Pole told ASA Biesty that he took the gun from Ramon and that they then drove up to the alley behind the tire shop. There, Pole put on a white work glove marked with his name, the same glove later retrieved from Ramon's house. He pulled up the hood of his sweatshirt and Ramon put on a ski mask. They agreed that Pole would hold the gun on the Disciples while Ramon searched their pockets and took their jewelry. Pole asked Ramon to take the safety off the gun, and Ramon complied. Pole told ASA Biesty that he "popped a round off" at the Disciples and that he and Ramon then fled. Pole said that he returned to his car with Andrea, told her he had "popped" some Disciples, and asked her to hide the gun and glove. Pole signed each page of the statement and also initialed a change in the spelling of Ramon's name.
Ramon pled guilty to murder and attempted armed robbery, but Pole went to trial. Pole's attorney moved to suppress any oral or written statements that Pole made the night he was arrested, claiming that he was not read his rights prior to interrogation, that his statements were not made knowingly or voluntarily, that his lengthy interrogation continued after he invoked his right to remain silent and his right to an attorney, that his statements were the result of physical and psychological coercion, that his statements were provoked by confronting him with evidence obtained in violation of the Fourth Amendment, and that authorities lied to Pole in violation of the Fifth and Fourteenth Amendments. Counsel sought and obtained a hearing on the motion to sup-press. At the hearing, the State presented testimony from the police officers involved in Pole's arrest and interrogation, and ASA Tom Biesty, all of whom refuted Pole's allegations. Pole's attorney did not call Pole as a witness and presented no evidence at the hearing, relying entirely on cross-examinations of the state's witnesses to make his case. He argued that Pole was only eighteen years of age at the time of the interrogation, had limited education, had never been interrogated before, was in custody for many hours before he signed the confession and did not give the statement voluntarily. The court found that the state's witnesses were credible, that Pole had been apprised of his rights prior to interrogation and that there was no evidence of coercion. The court denied the motion to suppress.
At the trial, Andrea Hamilton testified consistently with her signed statement. Karen Wills testified that she had encountered Pole and Andrea when she was walking home on the day of the murder. She went with them to retrieve Pole's car. When they arrived at the car, she saw Pole give Andrea a black, metal object, and heard him ask Andrea to "put it up" for him. After drop-ping off Andrea at her home, Pole told Karen Wills he had "gotten into it" with some Disciples and that he had shot at them. Wills testified that shortly thereafter, she and Pole were stopped by the police. After Wills told the officers she had seen Pole give something to Andrea, the police officers drove the pair to Andrea's house. The officers later emerged from the house with all three Hamiltons.
Pole's written confession was entered into evidence, and the officers and ASA Biesty testified about Pole's oral and written admissions made within hours of the murder. A forensic investigator for the police department testified that no physical evidence was found at the scene, a gunshot residue test of Pole's hands was taken but he did not know the result, and no bullet had been recovered because it had passed through the victim's body, exiting his chest. One of the officers testified that he found a shell casing matching the gun in the grass near the scene. Pole's attorney argued to the jury that the shooting was accidental, that no robbery was intended and no steps had been taken towards a robbery, and that the gun had discharged unexpectedly while the safety was being manipulated. The attorney successfully argued over the prosecution's objection that the jury should be instructed on involuntary man-slaughter as an alternative to murder. This was not a small victory given that Pole was charged with murder and attempted armed robbery, allowing the state to argue that he either intentionally shot at the Disciples or that Bernard Jackson was killed in the course of another felony. Under the felony murder theory, Pole's argument that he did not intentionally shoot at Bernard Jackson would not have entitled him to an involuntary manslaughter instruction unless there was some evidence that he did not intend to commit robbery together with evidence that the shooting was accidental. Except for Pole's initial statement to the police, there was no evidence in the record supporting an involuntary man-slaughter charge. The court called it a close issue, but gave Pole the benefit of the doubt and issued the involuntary manslaughter instruction. Perhaps because Pole had confessed to at least five different people within twelve hours of the murder and had signed a written statement detailing his actions that night, the jury had little trouble returning a verdict finding him guilty of murder and attempted armed robbery.
When the ink was barely dry on the verdict form, Pole began complaining at his sentencing hearing that he did not commit the crime, that his attorney failed to place into evidence reports that no gunshot residue was found on his hands or his glove, that he had wished to testify but had deferred to his lawyer's judgment out of fear, and that he had been manipulated and coerced into signing a confession. He claimed he had been led to believe that the state's attorney was there to help him, and that he was young, inexperienced and exhausted when he signed the confession. The court rejected Pole's claim of innocence and sentenced him to forty-four years of imprisonment on the murder charge and fifteen years on the attempted armed robbery conviction, to be served concurrently.
In his direct appeal, Pole argued that the trial court failed to adequately inquire into his post-trial complaint that his lawyer had failed to call a witness with exculpa-tory evidence. He also contended that the trial court had erred in allowing the jury to hear evidence regarding Pole's membership in a street gang. The exculpa-tory evidence, Pole explained, consisted of two favorable gunshot residue tests. Pole contended that the swabs of his hands and tests of the glove were negative for gunshot residue, and that the trial court should have conducted an inquiry into his charge at sentencing that his attorney failed to put into evidence the negative gunshot residue test reports. Pole did not submit those reports with his appeal. The appellate court noted that Pole had not adequately raised the issue of ineffective assistance of counsel because he did not request new counsel and filed no pro se post-trial motion. The court nevertheless considered the merits of Pole's claim, and determined that counsel's strategy was to inform the jury that the gunshot residue test was conducted but that the prosecutor had not presented the results, leaving the jury to infer the reports would have been favorable to Pole. The appellate court continued that even if the attorney erred in not going farther with this evidence or the trial court erred in not pursuing Pole's allegation about his lawyer, there was no reasonable probability that the outcome of the trial would have been any different had this evidence been admitted. The court noted that the gunshot residue tests held little evidentiary value in light of Pole's signed confession and the other ample evidence against him. Because the court did not know the test results for Pole's hands or the glove, and because the other evidence of his guilt was overwhelming, the court concluded that Pole had failed to show prejudice from the alleged errors.
Addressing Pole's claim that the court erred in admitting evidence of his gang membership, the appellate court found that this evidence was highly relevant to the crime charged because the shooting was alleged to be motivated by gang rivalry. One of the three men in the red van had been wearing the colors of the Gangster Disciples, and Pole had asked Larue about the men's gang affiliation shortly before the shooting. Moreover, Pole had confessed to a police officer that he went to confront the Disciples because the Blackstones considered him a "pigeon" or a "white boy" and he wanted to prove himself to his fellow gang members. Finally, the court rejected Pole's argument about the gang affiliation evidence because the state had used the evidence only for proper purposes throughout the trial. The appellate court therefore affirmed Pole's conviction. The Illinois Supreme Court declined to hear Pole's case on direct appeal.
Pole then filed a pro se petition for post-conviction relief in the state court, citing three grounds for relief. First, he contended that his trial attorney was ineffective for failing to present witnesses at the hearing on the motion to suppress and for not allowing Pole himself to testify at the motion to suppress. Second, he argued that his trial counsel was ineffective because he failed to investigate exculpatory witnesses and eyewitnesses to the crime, and did not allow Pole to testify in his own defense. Third, he claimed that his appellate counsel was also ineffective for failing to raise in his direct appeal the issues he was now raising in his post-conviction petition. He filed numerous statements in support of his post-conviction petition including three affidavits of his own (R. 13, at C51, C57 and C61), an affidavit from Andrea Hamilton (R. 13, at C72), an affidavit from Ramon Hamilton (R. 13, at C63),*fn2 an affidavit from Bonnie Hamilton (R. 13, at C78), and statements from his mother (R. 13, at C83), sister (R. 13, at C84 and C85), and a fellow inmate (R. 13, at C81) supporting his requests for relief. The circuit court dismissed the petition without an evidentiary hearing and Pole appealed.
The Illinois Appellate Court took up Pole's case for a second time. In response to the state's argument that Pole had waived the arguments he was now raising, the court relaxed the rule for waiver because Pole claimed ineffective assistance both at trial and on appeal. The court therefore decided to address Pole's arguments on their merits. On the ineffective assistance claim based on counsel's performance at the suppression hearing, the appellate court reviewed the hearing transcript and determined that the claim was without merit. Specifically, the court noted that defense counsel's strategy was to paint his client as so young, inexperienced and naive about the justice system that his confession was involuntary. To that end, he cross-examined the state's witnesses and argued his position to the court. The court found that counsel's conduct was not substandard.
In addressing Pole's claim that his trial lawyer failed to investigate the case by failing to locate and call two eyewitnesses, Ramon Hamilton and Lontray, the court opined that there was no factual basis to support the claim. The court concluded (erroneously, as it turns out) that Ramon's affidavit indicated that Ramon was not present when the fatal shot was fired. Pole had not submitted an affidavit from Lontray. Because Ramon and Lontray could not have provided testimony that would have changed the outcome of the trial, the court found the argument without ...