Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 452-Marvin E. Aspen, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge
ARGUED SEPTEMBER 18, 2008
Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.
Dennis Emerson is serving a term of life imprisonment after a former Illinois governor commuted his death sentence, which stems from a murder he committed during an armed robbery. Emerson has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that his counsel at his sentencing hearing was ineffective and that he should be resentenced. He argues specifically that his counsel should have objected to the sentencing court's response to a question from the jury and also that his counsel should have offered the judge a more explicit answer to the jury's question. On postconviction review the Illinois Appellate Court rejected Emerson's arguments, and on habeas review the district court denied his petition. We affirm.
In 1979 Dennis Emerson and Richard Jackson, his brother, robbed Robert Ray and Ray's girlfriend, Delinda Byrd, at gunpoint. Emerson and Jackson then tied the victims' hands and feet, and Emerson stabbed Ray twice in the chest with a pair of scissors. Ray survived by playing dead. According to Ray's testimony, Emerson then approached Byrd and brought his hands down upon her body in a stabbing motion. Because Ray was playing dead, he did not look directly at the strike and therefore did not actually see Emerson stab Byrd. Emerson and Jackson then left the room and set fire to the building as they fled. Ray escaped, but Byrd died from a stab wound. Emerson was charged with the murder of Byrd, attempted murder of Ray, armed robbery of both victims, and arson.
This case arrives here with a long and complicated history in state and federal courts, most of which is not relevant to this appeal.*fn1 Emerson was convicted in Illinois state court of murder, attempted murder, and armed robbery, and he was sentenced to death. See People v. Emerson, 606 N.E.2d 1123 (Ill. 1992), cert. denied, 507 U.S. 1037 (1993). Emerson later petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 based on a sentencing issue. The federal district court granted the petition and required resentencing. United States ex rel. Emerson v. Gramley, 883 F. Supp. 225 (N.D. Ill. 1995), aff'd, 91 F.3d 898 (7th Cir. 1996).
The Circuit Court of Cook County held a new sentencing hearing, which forms the basis of this appeal. The hearing focused on whether the State could prove a particular aggravating factor-murder in the course of armed robbery. Emerson's counsel maintained during closing argument that Emerson was ineligible for the death penalty because the State failed to prove that Emerson "actually struck the fatal blow that led to Delinda Byrd's death." The court instructed the jury in relevant part:
Before [Emerson] may be found eligible for a death sentence under the law, the State must prove the following propositions:
First: That [Emerson] was 18 years old or older at the time of the commission of the murder . . . ; and
Second: That the following statutory aggravating factor exists:
The murdered person was killed in the course of another felony if
The murdered person was actually killed by [Emerson]; and
In performing the acts which caused the death of the murdered person, [Emerson] acted with the intent to kill the murdered person or with the knowledge that his acts created a strong probability of ...