United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Court Judge
Joseph Bannister, petitions this Court for a writ of habeas
corpus based on alleged deprivations of his constitutional
rights at multiple points during the course of his trial and
subsequent death-sentencing hearing. For the reasons set
forth herein, Bannister's petition for a writ of habeas
corpus  is denied.
Because Bannister does not present clear and convincing
evidence challenging the facts set forth in the Illinois
Supreme Court's opinion, those facts are presumed to be
correct for the purpose of habeas review and are adopted as
set forth below. See 28 U.S.C. § 2254(e)(1);
Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010).
was charged in a multicount indictment with, as is relevant
here, the first degree murder of Henrietta Banks, the
attempted murder of Sharon Banks, and home invasion.
Bannister waived a jury for the guilt-innocence phase of the
proceedings, and the court accordingly conducted a bench
trial. The evidence at trial showed as follows.
and Sharon Banks had previously lived together and shared a
daughter. Sharon Banks, Bannister's daughter, and
Sharon's other children shared an apartment with
Sharon's sister Henrietta, Sharon and Henrietta's
mother, and Henrietta's children.
month before the events in question, Sharon had obtained an
emergency order of protection against Bannister after he
crashed his car into hers and threatened to kill her. In the
intervening months Bannister had further threatened Sharon
with bodily harm.
about noon on the day in question Bannister, dressed in black
and armed with a handgun, broke into Sharon's apartment
through a side door. He first encountered Sharon, who he shot
in the shoulder. He then approached Henrietta, who was
sitting on a couch, and shot her three times, killing her.
Bannister then returned to Sharon, who he shot again in the
chest. He then turned his gun on Sharon's mother, but
stopped and fled when his daughter intervened.
was arrested by the Chicago Police Department five months
later. Following his arrest, Bannister gave a statement
admitting to shooting Sharon, but claiming that he let
himself into the apartment with a key and that Henrietta was
unharmed when he left the apartment.
to trial, Bannister repeatedly asserted to his attorney that
Sharon had visited him in jail and had told him that she
would testify that he had not committed the crimes that he
was charged with. These claims were not supported by the
jail's visitation logs, but Bannister persisted in his
belief that Sharon would exonerate him at trial and
accordingly refused to discuss other legal strategies with
counsel. Based on Banister's unsubstantiated insistence
that Sharon was visiting him and would assist in his defense,
defense counsel retained a clinical psychologist and forensic
psychiatrist to assess whether Bannister was fit to stand
trial. After examining Bannister, both doctors agreed that he
suffered from a delusional order, and the forensic
psychologist opined that Bannister was unfit to stand trial.
When this information was presented to the court, the court
ordered that a court psychologist and forensic psychiatrist
evaluate Bannister's fitness to stand trial.
court psychologist and forensic psychiatrist both found that
Bannister was fit to stand trial and suggested that he was
subsequent competency hearing, the state offered the
testimony of the court's forensic psychiatrist, and the
defense in turn offered the testimony of its own forensic
psychiatrist. On cross-examination, the defense psychiatrist
admitted that Bannister understood the nature of the charges,
the role of courtroom personnel, and the nature of a jury
trial, and clarified that Bannister's delusion was
confined to his relationship with Sharon. After the hearing,
the court found Bannister fit to stand trial and the case
proceeded to a bench trial.
trial, Bannister did not testify or present any evidence in
his own defense. At the close of trial, the court found
Bannister guilty of Henrietta's murder, of the attempted
murder of Sharon, and of home invasion. Following
admonishments from the trial court and against counsel's
advice, Bannister demanded that the death sentencing hearing
be conducted before a jury. Bannister's lawyer filed a
motion asking the court to hold a bench sentencing hearing
notwithstanding Bannister's insistence on a jury, which
the court denied. After receiving the evidence, the jury
found beyond a reasonable doubt that Bannister was eligible
for the death penalty and proceeded to the second stage of
the death sentencing hearing. Sharon and a former gang member
who Bannister had previously shot testified in aggravation.
At the mitigation hearing Bannister's trial counsel
presented testimony from Bannister's half-sister and
half-brother about Bannister's good character and
difficult upbringing. At the close of the hearing, the jury
found that death was the appropriate sentence. The court
therefore sentenced Bannister to death, with concurrent
45-year and 30-year prison terms on the attempted murder
conviction and home invasion conviction, respectively.
Bannister's death sentence was subsequently commuted to
life in prison.
his trial, Bannister appealed his conviction to the Illinois
Supreme Court, which affirmed. People v. Bannister,
902 N.E.2d 571, 232 Ill.2d 52 (2008). He then filed a
petition for a writ of certioriari, which was denied.
Bannister v. Illinois, 558 U.S. 831, 130 S.Ct. 63,
175 L.Ed.2d 47 (2009). Bannister next filed a post-conviction
petition, which the trial court dismissed. That decision was
affirmed on appeal, and the supreme court declined to issue a
petition for leave to appeal. Bannister subsequently filed
the present petition before this Court.
Antiterrorism and Effective Death Penalty Act (AEDPA)
provides for relief when, as a result of a state court
decision, a criminal defendant is “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). The statute
exists to ensure the fundamental fairness of states'
criminal adjudications. Williams v. Taylor, 529 U.S.
362, 375, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Before a
district court can address a habeas petition on its merits, a
petitioner must have both exhausted his state remedies and
avoided any fatal procedural defaults. See 28 U.S.C.
§ 2254(b). In Illinois, exhaustion requires that the
petitioner present each claim in his habeas petition to the
court of direct appeal and, if possible, to the Illinois
Supreme Court in a petition for discretionary review.
Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010)
(citing O'Sullivan v. Boerckel, 526 U.S. 838,
844-845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)).
order to obtain relief under section 2254, it is not enough
to demonstrate that a state court's decision was
erroneous. Badelle v. Correll, 452 F.3d 648, 655
(7th Cir. 2006). Rather, a writ may only be granted if the
state court, in adjudicating the claim on the merits,
unreasonably applied clearly established federal law as
determined by the Supreme Court of the United States or
reached a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. § 2254(d). When reviewing
a state court's decision for an unreasonable application
of established federal law, this Court is limited to the
record that was before that court when it adjudicated the
claim. Cullen v. Pinholster, 563 U.S. 170, 183, 131
S.Ct. 1388, 179 L.Ed.2d 557 (2011). In order to prevail in a
challenge to the state court's factual findings, the
petitioner must offer clear and convincing evidence that the
state court's factual determination was wrong.
Accordingly, to obtain a writ of habeas corpus, “a
state prisoner must show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fair-minded disagreement. Harrington v. Richter, 562
U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
Ineffective Assistance of Counsel at the Competency
Bannister first contends that his trial counsel was
constitutionally ineffective in failing to obtain and present
certain evidence showing that Bannister was unfit to stand
trial. In order to succeed on an ineffective assistance of
counsel claim, a petitioner must ordinarily prove both that
(1) his counsel's performance fell below “an
objective standard of reasonableness” and (2) that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different”. Strickland
v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). In reviewing counsel's performance,
courts are “highly deferential” and
“indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. The
question is not whether counsel's conduct deviated from
best practices or common custom, but rather whether it
constituted incompetence under the prevailing professional
norms in light of the facts of the particular case, as viewed
at the time of counsel's conduct. Id. at 690,
Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011). When reviewing a state
court's determination under Strickland in a
habeas proceeding, the question before this Court is thus not
whether counsel's actions were reasonable, but rather
whether there is any reasonable argument that counsel's
actions were objectively reasonable. Harrington, 562
U.S. at 105. Thus, in reviewing a state court judgment
rejecting an ineffective assistance of counsel claim, this
court employs a “doubly deferential” standard of
review giving both the state court and the defense attorney
the benefit of the doubt. Burt v. Titlow, 134 S.Ct.
10, 31, 187 L.E.2d 348 (2013).
on the suspicion that Bannister might not be competent, trial
counsel secured two experts, both of whom evaluated Bannister
and diagnosed him with a delusional disorder. The defense
experts, however, found no evidence of organic defects or
hallucinations, and Bannister denied having suffered from
hallucinations, severe head injuries, or loss of
consciousness in the past. At the competency hearing,
moreover, the defense expert conceded that Bannister could
understand the nature of the proceedings against him and that
his delusion was confined to his relationship with Sharon.
Bannister's post-conviction proceedings, postconviction
counsel discovered that Bannister had been in a 1998 car
accident and that a CT scan of his head following the
accident showed that he had suffered from a lacunar infarct
(a type of stroke) in the right caudate nucleus, an area of
the brain linked to content-specific delusions. Bannister
therefore claimed that his trial counsel was constitutionally
ineffective in failing to gather readily available medical
records of organic brain damage and Bannister's
educational, employment, and juvenile records, as well as in
failing to interview more of Bannister's siblings (in
order to locate Bannister's medical records).
Illinois Appellate Court, in reviewing that claim, held that
trial counsel's conduct was not unreasonable. The court
explained that both experts who had examined Bannister had
testified that he suffered from a delusional disorder (as
opposed to an organic brain disorder like a lacunar infarct),
and that there was nothing in their reports to suggest that
further testing would be beneficial. This was especially so,
the Court found, because Bannister had denied having any
mental problems, hallucinations, or past severe head
injuries, factors which might have suggested an organic brain
disorder. In light of the information available to trial
counsel, the appellate court concluded that it was not
unreasonable for trial counsel to elect to present the
forensic psychiatrist's testimony rather than further
investigating the possibility of organic brain disorders.
well established that an attorney's failure to
investigate a defendant's mental condition, where there
is evidence of psychiatric problems, may constitute
constitutionally deficient performance. Brown v.
Sternes, 304 F.3d 677, 694 (7th Cir. 2002) (citing
Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir.
1991)) (“We have held in the past that where a
defense attorney has received information from a reliable
source that his client has had a history of psychiatric
problems, but failed to adequately investigate this history,
counsel failed to provide effective assistance.”)
(emphasis in original); see also Ryder ex rel. Ryder v.
Warrior, 810 F.3d 724, 733 (10th Cir. 2016) (recognizing
that an attorney's complete failure to investigate a
defendant's mental health could demonstrate
constitutionally deficient performance). Here, however, the
record shows that counsel did conduct an investigation by
retaining two medical experts to examine Bannister. Moreover,
as the state court noted, the investigation that Bannister
now contends should have been conducted was not supported by
Bannister's own statements regarding his medical history
or the testimony of the medical experts. This Court cannot
say, looking at all of the facts before it, that it was
entirely unreasonable for counsel to stop investigating
Bannister's medical history after two qualified experts
opined that Bannister suffered from a delusional disorder and
was not competent. There is therefore a reasonable argument
to be made that counsel's actions in investigating
Bannister's mental health were objectively reasonable.
Harrington, 562 U.S. at 105. Constitutionally
Ineffective Assistance of Counsel at the Death Sentencing
Hearing Bannister next contends that trial counsel was
constitutionally ineffective for failing to investigate and
present mitigating evidence of organic brain damage,
Bannister's educational, employment, and juvenile
incarceration records, and interviews with Bannister's
family members at Bannister's death penalty sentencing
hearing. Bannister first raised this argument in his post-
conviction petition and, after the postconviction court
denied that petition, in his post-conviction appeal.
Illinois Appellate Court, although it considered those same
arguments with respect to the fitness hearing, declined to
consider Bannister's claims with respect to his
sentencing on the grounds that they were moot. That Court
An issue on appeal is moot when it is abstract or presents no
controversy. People v. Blaylock, 202 Ill.2d 319, 325
(2002). An issue can become moot if circumstances change
during the pendency of an appeal that prevents the reviewing
court from being able to render effectual relief. People
v. Jackson, 199 Ill.2d 286 (2002). In this case,
subsequent to the filing of the defendant's
postconviction petition, the Governor commuted the
defendant's death sentence to natural life imprisonment
without the possibility of parole or mandatory supervised
release. “Commutation removes the judicially imposed
sentence and replaces it with a lesser, executively imposed
sentence.” People v. Miller, 203 Ill.2d 433,
438 (2002). Thus, the commutation rendered this sentencing
issue moot. People ex rel. Madigan v. Snyder, 208
Ill.2d 457, 480 (2004); see also People v. Oaks,