The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Murray Hooper was convicted of three counts of murder, aggravated kidnapping, and armed robbery and sentenced to death*fn1 following a trial before the infamous and thoroughly disgraced Judge Maloney. (Maloney would later be convicted of participating in a racketeering conspiracy, racketeering, extortion under color of official right, and obstruction of justice based on bribes he took while serving as a judge in Cook County. See generally United States v. Maloney, 71 F.3d 645, 649 (7th Cir. 1995).) Following multiple rounds through the state court review system, Hooper filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court, arguing three grounds for relief: (1) prosecutors violated Batson v. Kentucky, 476 U.S. 79 (1986), when they used peremptory strikes to eliminate all black potential jurors; (2) Hooper's due process right to a fair trial was violated because Maloney infected the proceedings with "compensatory bias" by taking a pro-prosecution bent to cover up Maloney's own criminal conduct; and (3) Hooper's due process rights were violated when Maloney allowed Hooper's involuntary and coerced statements to be used against him at trial. After filing his petition, but before this court had the opportunity to rule, Hooper filed a motion requesting discovery, an expansion of the record, and an evidentiary hearing. For the reasons set forth below, the court denies the petition and the request for evidentiary development, and grants Hooper a certificate of appealability as to all issues.
The charges at issue stem from Hooper's indictment, along with Roger Collins and William Bracy (sometimes spelled "Bracey"), for the armed robbery, aggravated kidnapping, and murder of Frederick Lacey, R.C. Pettigrew, and Richard Holliman. According to the Illinois Supreme Court,*fn2 on the morning of November 13, 1980, Lacey, Pettigrew, and Holliman were found dead from gunshot wounds under a viaduct at Roosevelt Road and Clark Street in Chicago. Holliman was found in the back seat of a red Oldsmobile with his hands bound; he had received three bullet wounds to the chest and one in the back of the neck. Lacey was found lying on the ground outside the driver's side of the car. He had been shot in the back of the head. Pettigrew was lying under the front bumper with rope and cloth tied around his wrists. He had been shot in the face, chest, leg, and back.
Collins, Bracy, and Hooper were arrested and charged with the crimes. The case was initially assigned to another judge, but as the result of a motion for substitution, the case was reassigned to Judge Maloney. Bracy and Collins subsequently moved for, and were granted, a severance from Hooper; they proceeded to trial first, were convicted, and were sentenced to death. See Bracy v. Gramley, 520 U.S. 899, 900-01 (1997) (so noting).
Hooper had been scheduled for trial immediately thereafter, but his case was continued until after Maloney tried what Hooper calls the "Chinatown case." In the Chinatown case, Maloney allowed three defendants who were charged with murder to remain on bond; he then directed findings of acquittal for all of them in exchange for some portion of a $100,000 bribe. Maloney, 71 F.3d at 650 (describing the fix). On August 14, 1981-just after the Chinatown case concluded-Maloney began to resolve the final pretrial matters in Hooper's case. On Monday, August 17, 1981, Maloney held a hearing on a motion Hooper's counsel had filed seeking to suppress Hooper's incriminating statements. Hooper claimed that he was beaten by the police and coerced into making the statements, but Maloney denied the motion after hearing testimony and argument.
Immediately following the suppression hearing, jury selection began. The prosecution and the defense each were given twenty peremptory strikes. Of the eleven peremptory strikes actually used by the prosecution, five were exercised against black veniremembers. Hooper's counsel raised the issue of racial discrimination twice with Maloney during the voir dire, but Maloney stated that there was no reason to question the State's use of peremptory challenges. Because all of the other black veniremembers had been excused for cause, Hooper-who is black-proceeded to trial without a single black person on his jury.
The Illinois Supreme Court summed up the evidence at trial as follows. Morris Nellum testified that he had been at his girlfriend's home when, at about 9:30 p.m., Roger Collins arrived and spoke with Nellum. Nellum then went to an apartment at 2240 South State Street, where he saw Collins, Hooper, Bracy, and three other men he did not know; two of these men (later identified as Pettigrew and Holliman) were lying on a bed with their hands tied behind them. The third man (later identified as Lacey) was standing next to the bed. Collins gave Nellum the keys to a brown Cadillac, and Nellum went to the car. He was followed shortly by Collins, Bracy, Hooper, and the three victims. Collins and Hooper shoved the victims into the rear seat of a red Oldsmobile, and then got in, with Collins taking the driver's seat. Bracy went to his own car, and when the red Oldsmobile pulled away, Bracy followed. After waiting a few minutes, Nellum drove to Clark Street and Roosevelt Road. As he approached the viaduct, he saw the other two cars and heard shots. Nellum saw Bracy put a shotgun in his car and drive away with Hooper. Collins got into Nellum's car, and Nellum drove back to the parking lot at 2240 South State Street. Bracy gave Nellum $125, and Nellum then took Collins to Lake Michigan, where Collins threw two handguns-a .38-caliber Charter Arms revolver and a .357 Magnum revolver-into the lake. Nellum identified the .38-caliber revolver as the gun he had seen Bracy give to Hooper at the 2240 South State Street address in October 1980. He also identified a photograph he had taken of Collins and Hooper in October 1980; according to Nellum, the photo showed Hooper holding the same .38-caliber revolver.
Nellum further testified that on February 21, 1981, he was arrested and brought to the police station. As he sat in the interrogation room, he heard Hooper in the next room asking to talk to him. Nellum was brought to Hooper's room, where Hooper told him in the presence of officers that "Bracey had told them everything," that Hooper was "already buried," and that Nellum should "save" himself. Nellum stated that he had reached an agreement with the State under which he would not be charged with murder or sent to prison, but would receive a three-year sentence of protective custody and have his family relocated. On cross-examination, Nellum said that he had initially denied any knowledge of the whereabouts of the weapons, but that was the only time he lied and he was not lying at trial.
Daretha Redmond testified that on the night of the murders, she was living in a first-floor apartment at 2240 South State Street. Between 10:00 p.m. and 10:30 p.m., she saw a group of men pass her living room window; the man leading the group was wearing a wide-brimmed "Mexican" hat, and two of the men appeared to have their hands tied behind their backs. A month later, she was shown over forty photographs by police officers. She said Hooper resembled one of the men in the group that had passed her window, and that Collins resembled the man that was wearing the wide-brimmed hat. She also stated that she had seen Hooper and Collins together near the building on other occasions. On cross-examination, she stated that she could not positively identify any of the men in the group, although on redirect, she again testified that the photographs she had identified "resembled" men she had seen that night.
Detective David O'Callaghan testified that a month after the murders he showed photographs to Daretha Redmond, and later recovered evidence from 2240 South State Street. Sergeant Michael Hoke testified that he arrested William Bracy shortly before midnight on February 20, 1981. Bracy gave him a telephone number where he said Hooper could be reached. The number was registered to an apartment at 1354 North Sedgwick in Chicago. Hoke and other officers went to the apartment, but Hooper was not there. However, they saw a telephone number on the wall that they speculated might be Hooper's. They traced the number to a building at 1848 North Winnebago, where they were joined by Detective O'Callaghan. O'Callaghan then went to a public phone on the street and dialed the number. Hooper answered and identified himself. Officers at the building were able to hear the phone ringing in the apartment on the first floor. O'Callaghan returned and knocked on the door of that apartment, announcing that it was the police. Hooper opened the door and said, "You got me now. Be cool. Be cool." He unlocked a burglar gate, and the police entered and told him that he was under arrest. He was wearing only undershorts and was told to get dressed. He said, "My clothes are in the back and there are some guns back there." The officers recovered a .32-caliber revolver and a shotgun from the room.
Hooper was handcuffed and taken to a squad car, where his Miranda rights were read to him. He indicated his understanding, and said, "You got me now. I am going to tell you everything." He asked who else the police had in custody, and O'Callaghan told him that they had Bracy. Hooper became angry, stating "I know that's how you found me. Bracey freaked on me. He told you where I was at." When asked if he was referring to the murders under the viaduct, Hooper said, "I know what you are talking about." He directed the police to a building at 22nd and State, where Nellum was taken into custody. Both Nellum and Hooper were brought to the station, where they were placed in separate interrogation rooms.
Again Hooper was read his Miranda rights, and again he said that he would tell them "everything." He told the police that he went to 2240 South State and saw Collins, Bracy, Nellum, and Lacey there, along with two men he did not know whose hands were bound. Hooper told O'Callaghan that it was supposed to be a "rip-off" and he wanted a "piece of the action." He said that he learned from Collins that the victims had come to buy narcotics, but it was decided that they would be robbed. Hooper said that they left the apartment and he and Nellum drove to the viaduct in the brown Cadillac, while Collins and Bracy drove in the red Oldsmobile with the three victims. According to Hooper, Nellum and Collins had .38-caliber revolvers and Bracy had a shotgun. Hooper first said that he remained in the car when Collins, Bracy, and Nellum began shooting, but when questioned, he said that he shot "the guy by the right front wheel," apparently R.C. Pettigrew, with a .32-caliber pistol. At this point O'Callaghan left the room to talk to Nellum. Hooper asked to speak with Nellum, and O'Callaghan brought Nellum to see Hooper. O'Callaghan corroborated Nellum's testimony that Hooper told Nellum "I am buried . . . save yourself. You tell them everything." After he spoke to Nellum, O'Callaghan told Hooper that there was no evidence that a .32-caliber pistol was used. Hooper then admitted that he was given a .38-caliber revolver by Collins, and that he "shot into the back seat of the car at the guy in the back," presumably Holliman.
That morning, Lawrence Hyman, an Assistant State's Attorney, spoke with Hooper at the station. Hooper related essentially the same story to Hyman as he had to O'Callaghan, except that he said that he and Bracy drove in the Cadillac, and that Collins, Nellum and the victims drove in another car. Hooper added that Bracy fired the shotgun at the victims and that he was given a gun by Collins with which he shot the victim in the back seat of the car.
Firearms expert Burt Nielson of the Chicago Police Department testified regarding his examination of the weapons recovered from Lake Michigan and the bullets and bullet fragments taken from the victims. He said that the .38-caliber Charter Arms revolver would mark a shell with eight lands and grooves, inclined to the right, and that the .357 Magnum revolver would mark a bullet with five lands and grooves, inclined to the right. All of the bullets and bullet fragments recovered from the victims exhibited one of these two class characteristics. Bullets with the class characteristics of the .38-caliber revolver were recovered from Holliman and Pettigrew, but because of the rusty condition of the recovered weapons, Nielson could not say with certainty that the bullets taken from the victims had been fired from the weapons recovered from the lake.
Hooper testified his own defense. He stated that at 5:30 a.m. on February 21, 1981, he was at 1848 North Winnebago when the police knocked on the door and said they had a warrant for his arrest. He opened the door and let the officers in, but he denied telling them of the guns in the bedroom. (In fact, he denied any knowledge of the weapons.) Hooper said that once he was in the squad car, he was beaten by Officers O'Callaghan and Hoke. He was then taken to a viaduct where he was taken from the car, knocked down, and questioned with a shotgun to his head. Hooper's right leg was twisted, causing sharp pain. He was then returned to the car, and he asked to be taken to a hospital but no one heeded his request. The officers told him they "wanted" Roger Collins, and that if Hooper cared anything about himself or his family he had better cooperate. The officers took him to the parking lot at 2240 South State Street, stayed there for ten minutes, and then brought him to the police station. Hooper stated that at the station, he had requested an attorney and medical attention but the requests were denied. He further testified that the statement he gave to the Assistant State's Attorney was what O'Callaghan had told him to say.
When cross-examined, Hooper said that he had known Collins for twenty years and had met Bracy while at Stateville penitentiary about a year before. He said that Officer Hoke had hit him in the forehead upon his arrest, but admitted that a photograph taken at the time showed no bruise or mark. He denied telling Harry Robertson, a physician's assistant at the Cook County jail, that the wound on his leg was received three or four days before his arrest, although he admitted that he did not complain to the Assistant State's Attorney of being mistreated by the police. Finally, Hooper said that he did not recall where he was on the night of the murders.
Dr. Anita Shorter testified for the defense that on February 23, 1981, she treated Hooper for an infected cut on his right ankle. On cross-examination, she stated that the wound might have been on the left leg, and that the injury could have been received anywhere from two to three days to a week before.
Harry Robertson, the physician's assistant, was called as a rebuttal witness for the State. He identified his report of February 23, 1981, in which he stated that Hooper told him that the leg wound was sustained about a week earlier. Robertson's report also noted that the wound was on Hooper's left leg. Robertson testified that if Hooper had told him that the injury was inflicted by the police, he would have included that in his report.
Following the trial, Hooper was found guilty of each offense. After a hearing on the imposition of the death penalty for the murder convictions, the jury found that there were no mitigating factors sufficient to preclude a sentence of death. Maloney then sentenced Hooper to death, and further sentenced Hooper to concurrent terms of sixty years for each of three counts of armed robbery and sixty years for each of three counts of aggravated kidnapping. The death sentence was stayed pending direct appeal to the Illinois Supreme Court under Illinois Supreme Court Rule 603.
While Hooper's direct appeal was pending, the United States Supreme Court issued its opinion in Batson v. Kentucky, 476 U.S. 79 (1986). Batson, of course, made it clear that "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection" under the Fourteenth Amendment, id. at 86, and set out a three-step burden-shifting framework for courts to use in determining whether a defendant has established a prosecutor's discrimination. In light of Batson, the Illinois Supreme Court retained jurisdiction over Hooper's appeal, but remanded the case so that Maloney could conduct a Batson hearing. See People v. Hooper, 506 N.E.2d 1305 (Ill. 1987). Hooper asked the Illinois Supreme Court to remand to a different judge, arguing that Maloney was unfairly biased against him. (These allegations had nothing to do with Maloney's alleged "compensatory bias"-indeed, at the time Maloney had yet to be indicted.) The Illinois Supreme Court rejected the request. On remand, Maloney ruled that the totality of the evidence did not raise an inference that the State used its peremptory challenges to discriminate on the basis of race, and that Hooper had not established a prima facie case of purposeful discrimination. The parties then filed supplemental briefs to the Illinois Supreme Court addressing Maloney's ruling.
In its opinion, the Illinois Supreme Court affirmed-in-part, vacated-in-part, and remanded the case with instructions. See Hooper, 552 N.E.2d at 689-703. In particular, the court held that Maloney did not abuse his discretion in denying Hooper's motion to suppress his statements, and that various of the prosecutor's arguably inflammatory statements during closing arguments at the guilt phase of trial were harmless or were made in response to the defense's arguments. The court also found that Maloney did not improperly bolster Nellum's credibility by asking questions of Nellum during the trial.
However, the court did modify Hooper's sentence. First, it held that Hooper was improperly sentenced to three concurrent terms of sixty years on the aggravated kidnapping counts; as the kidnapping was not "for ransom," it was a Class 1 felony that carried a maximum sentence of fifteen years. The court reduced Hooper's sentence accordingly. The court also found that the prosecutor's misconduct during the death penalty phase warranted a new sentencing hearing. The prosecutor had told the jury that if they did not impose the death penalty, they would have "lied to the judge and to God"; in addition, the prosecutor raised a question as to whether Hooper would commit further murders in prison, and placed responsibility for any such acts on the jury. See id. at 697. In light of these remarks, the Illinois Supreme Court vacated the death sentence. Finally, the court addressed the Batson issue. The court found no basis for allegations of Maloney's bias, and concluded that Maloney's determination that Hooper failed to establish a prima facie case of discrimination was not against the manifest weight of the evidence.
The case was remanded for a new sentencing hearing on the murder convictions. Much had changed since Hooper's last sentencing hearing: Hooper had been convicted of two murders and an attempted murder in Phoenix, Arizona, and Maloney had been indicted for racketeering and extortion. Hooper's second hearing took place before Judge Mannion. The jury again found Hooper to be eligible for the death penalty without any mitigating factors, and Judge Mannion sentenced Hooper to death on July 16, 1993. On direct appeal, the Illinois Supreme Court affirmed. See People v. Hooper, 665 N.E.2d 1190, 1199 (Ill. 1996).
On December 21, 1995-about a month before the Illinois Supreme Court's opinion issued-Hooper filed a pro se post-conviction petition. The Illinois Supreme Court appointed counsel for Hooper in mid-1996, and the State filed a motion to dismiss in 1998. Hooper's counsel alerted the trial court to the fact that Hooper wished to file an amended petition, and requested an extension of time in which to do so. When the parties appeared before the trial court, however, the court denied the extension and dismissed the petition without permitting Hooper leave to amend. Hooper appealed, and on October 26, 1999, the Illinois Supreme Court remanded the case back to Judge Mannion in light of its opinion in People v. Bounds, 694 N.E.2d 560 (Ill. 1998), in which it held that a court violates a defendant's right to due process under the Illinois Constitution when it dismisses a petition at a hearing that the parties believe is merely a status call.
On remand, Hooper moved for discovery to support his post-conviction petition. Hooper also filed an amended petition for post-conviction relief, noting that he intended to supplement the petition with additional information uncovered in discovery. The State objected to the discovery requests, and Judge Mannion denied the discovery motion. Hooper's counsel then moved to substitute judges, arguing that Judge Mannion was prejudiced against him. The request was denied. When the case returned to Judge Mannion for a hearing on the motion to dismiss, Hooper attempted to amend the petition, but Judge Mannion denied leave to do so and granted the State's motion, dismissing the petition on June 15, 2004. Hooper appealed, requesting that the case be summarily remanded to a new judge at the trial court. On November 22, 2004, the Illinois Appellate Court granted that motion, and the case was remanded to a new judge for a third (and final) set of post-conviction proceedings.
The court now takes a detour from Hooper's story, because by this point, Hooper's one-time co-defendants, Collins and Bracy, had made their way through various appeals and post-conviction proceedings, and had filed petitions for habeas corpus. These two raised the same compensatory bias due process claim that Hooper would raise, and they requested discovery to support their claim. The district court denied the discovery request, see U.S. ex rel. Collins v. Welborn, 868 F. Supp. 950, 991 (N.D. Ill. 1994), and while the Seventh Circuit agreed with that decision, see Bracy v. Gramley, 81 F.3d 684, 691 (7th Cir. 1996), the Supreme Court did not, see Bracy v. Gramley ("Gramley"), 520 U.S. 899, 908-09 (1997). In determining that Bracy had established "good cause" for discovery,*fn3 the Court took care to emphasize that Bracy supported his discovery request with specific evidence of Maloney's "actual[ ] bias in petitioner's own case," namely allegations that his trial attorney, an associate of Maloney's, agreed to take case to trial quickly so Bracy's conviction would deflect any suspicion that the Chinatown fix would otherwise attract. Gramley, 520 U.S. at 908-09.
On remand, Bracy and Collins eventually made their way back up to the Seventh Circuit. Sitting en banc, the court recognized that Maloney was not entitled to the presumption that he had properly discharged his official duties, but that Maloney's corruption did not warrant a per se finding that every case over which he presided was infected. As to the rest, the court recognized that it frankly continued to struggle with "[e]xactly what Bracy and Collins must prove to prevail on this claim." Bracy v. Schomig ("Schomig"), 286 F.3d 406, 409-10 (7th Cir. 2002). The majority interpreted the Supreme Court's opinion as requiring actual bias, which it felt was a "surprising" limitation given that the appearance of bias typically sufficed. Id. at 411. However, the court did not require the petitioners to find a "smoking gun" to establish their claims; instead, the court looked to draw reasonable inferences from any evidence the petitioners might present. With regard to the guilt phase of trial, the court concluded that Maloney's discretionary rulings did not lead to an inference of actual bias, as they were the type of rulings one might see in any case. As to the sentencing phase, however, the court reached the opposite conclusion. It held that Maloney's "egregious" failure to keep the proceeding fair supported the inference of compensatory bias, and this inference was a "more compelling explanation for Maloney's actions than things like incompetence, negligence, happenstance, or accident." As a result, the Seventh Circuit vacated Bracy's and Collins' death sentences. Before they could be re-sentenced, Governor George Ryan commuted their sentences to life imprisonment. See People v. Collins, 815 N.E.2d 860, 863 (Ill. App. Ct. 2004).
Returning now to Hooper, on remand from the Illinois Appellate Court his post-conviction petition was assigned to Judge Fox. Hooper filed an amended petition, now entitled a "Superseding Amended Petition for Post-Conviction Relief," on May 15, 2006. Because Hooper's death sentence had been commuted to life imprisonment on January 10, 2003, no claims relating to Hooper's sentence were raised. Still, this superseding petition included eleven separate claims for relief. On March 22, 2007, Judge Fox rejected those claims. In short, Judge Fox concluded that there was no evidence that Maloney had engaged in compensatory bias during the 1981 trial or the Batson hearing, and that in any event the issues were either waived or res judicata based on Hooper's direct appeal. Judge Fox also addressed arguments based on, inter alia, alleged ineffective assistance of trial counsel and Brady violations, but rejected each claim in turn.
Hooper appealed to the Illinois Appellate Court, raising just two issues: Maloney's bias (both compensatory and racial) during the Batson hearing, and the voluntariness of Hooper's statements in light of new evidence that he was arrested by officers "associated with" Jon Burge, another one of the disgraced figures that dot the landscape of Illinois legal history.*fn4 On May 26, 2009, the appellate court affirmed Judge Fox's decision. The court concluded that Hooper failed to establish actual bias or a "nexus" between Maloney's corruption in other cases and Maloney's conduct at the Batson hearing. As to Hooper's claim that he should have been granted an evidentiary hearing to present "new evidence" that the police officers beat and coerced him to obtain his statements, the appellate court held that this issue had been addressed on direct appeal and was barred by the doctrine of res judicata. Moreover, the court held that the new evidence was irrelevant and would not have changed the result of Hooper's trial. Hooper filed a motion requesting a supervisory order in the Illinois Supreme Court, and subsequently filed a petition for leave to appeal. The Illinois Supreme Court denied the motion on October 21, 2009, and a little more than a month later, it denied leave to appeal.
Hooper then filed a pro se petition for a writ of habeas corpus with this court on March 22, 2010. With the approval of the Chief Judges of the Seventh and Ninth Circuits, this court appointed counsel from the Federal Public Defender for the District of Arizona, where Hooper is presently incarcerated on death row for the Phoenix murders. Hooper filed his amended petition in September 2010. Before this court had the opportunity to rule, however, Hooper filed a motion for discovery, an evidentiary hearing, and expansion of the record. Both the petition and the request for evidentiary development are addressed herein.
As the Supreme Court has repeatedly emphasized, "a federal court may issue a writ of habeas corpus to a state prisoner 'only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011) (quoting Wilson v. Corcoran, 131 S.Ct. 13, 15 (2010)); see Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), further narrows a reviewing court's inquiry. Under AEDPA, once a petitioner's claim is "adjudicated on the merits in State court proceedings," a federal court can grant relief only where the challenged state court decision is "contrary to" or "an unreasonable application of" clearly established federal law as determined by the Supreme Court of the United States, see 28 U.S.C. § 2254(d)(1), or where the state court based its decision "on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," see 28 U.S.C. § 2254(d)(2). See Greene v. Fisher, 132 S.Ct. 38, 42 (2011); Cheeks v. Gaetz, 571 F.3d 680, 684-85 (7th Cir. 2009).
Under § 2254(d)(1), a state court's decision is contrary to clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that of the Court's]." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court's decision involves an "unreasonable application" of clearly established federal law where the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. Under the "unreasonable application" theory, the facts in the case under review not need be identical to the facts of the case that announced a legal principle: '"Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.'" Winston v. Boatwright, 649 F.3d 618, 625 (7th Cir. ...