The opinion of the court was delivered by: United States District Judge Elaine E. Bucklo
MEMORANDUM OPINION AND ORDER
On the night of July 13, 1995, Jeremy Rush was shot and killed in a gang-related incident. Petitioner Aris Etherly, then fifteen, was arrested shortly thereafter, and, after confessing to his involvement in the shooting and leading police officers to the weapon used in the crime, was tried and convicted of first degree murder. After exhausting all of his state remedies, Etherly petitioned this court for a writ of habeas corpus pursuant to 22 U.S.C. § 2254. I granted that petition on August 28, 2009, based on my conclusion that the Illinois Appellate Court had unreasonably determined that Etherly's confession was voluntary. The Seventh Circuit reversed that decision and remanded the case to address the remaining claims Etherly raised in his habeas petition. These claims are: 1) that Etherly was denied a fair trial because the trial court did not voir dire the venire about potential gang bias; and 2) that trial counsel was ineffective for failing either to insist that the court probe the gang bias issue on voir dire or to question the venire herself on this issue. The Illinois Appellate Court rejected both of these claims on the merits.
Etherly argues that the Illinois Appellate Court unreasonably applied clearly established Supreme Court precedent when it determined that the trial court did not violate his right to due process and an impartial jury by failing to voir dire potential jurors about gang bias. Etherly acknowledges, however, that a trial court has broad discretion in its handling of voir dire, "subject to the essential demands of fairness," as indeed the very cases on which he relies have held. Morgan v. Illinois, 504 U.S. 719, 730 (1992); Rosales-Lopez v. U.S., 451 U.S. 182, 189 (1981); Ham v. South Carolina, 409 U.S. 524, 528 (1973); Aldridge v. United States, 283 U.S. 308, 310 (1931). Etherly further concedes that "litigants do not have a right to have a particular question asked," Gardner v. Barnett, 199 F.3d 915, 921 (7th Cir. 1999) (citing Ham, 409 U.S. at 527), and that the Constitution does not automatically require inquiry into prospective jurors' potential gang bias. Gardner, 199 F.3d at 921. Nevertheless, Etherly argues that the Illinois Appellate Court unreasonably applied Morgan, Rosales-Lopez, Ham, and Aldridge by declining to hold that the trial court violated Etherly's due process and fair trial rights when it failed to probe each potential juror on the issue of gang bias.
Etherly focuses on the Illinois Appellate Court's treatment of the following exchange:
THE COURT: Do you want me to ask the question about gangs then? DEFENSE COUNSEL: Which would be?
THE COURT: There may be some evidence that gang or gang activity may be involved in this case. Would that prevent you from giving either side a fair trial?
People v. Etherly, No. 1-01-4166 (Ill. App. 1st Dist. 2006) ("Rule 23 Order") at 8-9.
The Illinois Appellate Court held that although the trial court did not ultimately pose this or any other question relating to possible gang bias, it did not violate the petitioner's right to an impartial jury. The appellate court explained that while the trial court did not itself ask any gang bias questions, it was clear from the record that the court had afforded defense counsel the opportunity to do so.*fn1 The appellate court thus distinguished the case from People v. Strain, 742 N.E.2d 315 (Ill. 2000), in which the trial court's refusal to ask gang bias questions--despite defense counsel's request that it do so--had denied the defendant "an informed and intelligent basis on which to assert challenges for cause or to exercise peremptory challenges." Rule 23 Order at 12, quoting Strain, 742 N.E.2d at 323. The Illinois Appellate Court viewed the trial court's omission in this case as consistent with Strain's requirement that "when testimony regarding gang membership and gang-related activity is to be an integral part of the defendant's trial, the defendant must be afforded an opportunity to question the prospective jurors, either directly or through questions submitted to the trial court, concerning gang bias," explaining that, "unlike Strain, there was no refusal by the trial court to ask gang bias questions of the jury." Rule 23 Order at 14-15.
Etherly insists that this conclusion was objectively unreasonable because it relied on an "implausible" distinction between the Strain court's "refusal" to ask a gang question "submitted" by defense counsel and the trial court's "failure" in this case to ask a question "requested" by Etherly's counsel. But even assuming that counsel's tepid response to the trial court's offer to ask "the question about gangs" was tantamount to a request, the appellate court's conclusion that "there was no refusal by the trial court to ask gang bias questions" was based on the record evidence--undisputed by Etherly--that the trial court afforded defense counsel herself the opportunity to do so. That is, the appellate court concluded that the trial court did not so much "refuse" to ask gang bias questions as it left the decision whether to do so in the hands of defense counsel. Etherly cites no authority to suggest that the trial court violated any clearly established constitutional principle by doing so.
Etherly next argues that the Illinois Appellate Court unreasonably refused to extend the principles articulated in Aldridge, Ham, Rosales-Lopez and Morgan to a different context in which they should apply. But this argument is simply a variation on the previous one and again fails to understand the basis for the Illinois Appellate Court's conclusion that the constitutional principles underlying Strain had not been violated.
Finally, Etherly argues that "the fact that the Supreme Court has not yet addressed every subset of conceivable biases," and thus has not specifically held that an inquiry into potential gang bias is required where appropriate, does not compel the conclusion that the trial court did not violate clearly established constitutional precedent. But, "[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations," Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The Illinois Appellate Court thus had broad discretion to determine that the trial court's handling of voir dire was consistent with the general principle of Aldridge, Ham, Rosales-Lopez and Morgan that voir dire must meet "the essential demands of fairness." Etherly has not shown that it exercised that discretion unreasonably in this case.
Because I conclude that the Illinois Appellate Court did not unreasonably determine that the trial court did not violate Etherly's right to due process and a fair trial, I need not proceed to the issue of harmlessness.
I thus turn to Etherly's claim that his trial counsel was ineffective for failing either to insist that the court voir dire the jurors about potential gang bias or to probe the issue of gang bias herself. Because the Illinois Appellate Court applied the correct legal standard of Strickland v. Washington, 466 U.S. 668 (1984), to this claim, my review of its decision is "doubly deferential." Cullen v. Pinholster, 131 S. Ct. 1388 (2011). That is, I must first take "a highly deferential look at counsel's performance," id. at 1403, in which "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Then, I must view Etherly's claim through the "deferential lens of § 2254(d)." Pinholster, 131 S. Ct. at 1403 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411, 1418, n. 2 (2009)). That means that the "pivotal question" is not whether "defense counsel's performance fell below Strickland's standard," but whether "the state court's application of the Strickland standard was unreasonable." Harrington v. Richter, 131 S.Ct. 770, 785 (2011). On top of this double deference, I must bear in mind that "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Mirzayance, 129 S.Ct. at 1420. See also Harrison, 131 S.Ct. at 786 ("[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.") As the Supreme Court emphasized in Harrison: "If this standard is difficult to meet, that is because it was meant to be." ...