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Moore v. Pfister

United States District Court, N.D. Illinois, Eastern Division

March 31, 2018

COREY MOORE, Petitioner,
v.
RANDY PFISTER. Respondent.

          MEMORANDUM OPINION AND ORDER

          John J. Tharp, Jr., United States District Judge

         Petitioner Corey Moore brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 to challenge the convictions he received after two bench trials in the Circuit Court of Cook County, Illinois involving related murders. In the first trial, Moore was convicted of the first degree murder of his employer, Lonnie Williams, the attempted first degree murder of Lonnie's wife Melanie Williams, and armed robbery. In the second trial, he was convicted of the first degree murder and aggravated unlawful restraint of his girlfriend Kimberly Fort, who had provided information about the Williams murder to the police. At a combined sentencing hearing, the trial judge sentenced Moore to life imprisonment in the Williams case and to death in the Fort case. The death sentence was subsequently commuted to a term of life. Moore is serving these sentences at Stateville Correctional Center in Joliet, Illinois, and the Respondent in this case is Randy Pfister, Stateville's warden (hereafter, “the state”). Moore's petition identifies three claims in his § 2254 petition, each relating to both cases: (A) that he was denied due process because the state withheld impeachment evidence concerning a prosecutor who testified concerning Moore's confessions to the crimes; (B) that he was denied his right to counsel because the trial court limited the scope of Moore's post-conviction counsel's appointment; and (C) that his trial counsel rendered ineffective assistance by advising him to waive his rights to a jury trial. For the reasons set forth in this Memorandum Opinion, Moore's petition, and his motion for an evidentiary hearing, are denied.

         I. Background

         Factual determinations made by state courts are presumed to be correct unless a petitioner offers “clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing § 2254(e)(1)). Moore's petition fails that requirement and so this Court derives the following facts from the record established in the state court proceedings. The Court takes these facts primarily from the opinion of the Illinois appellate court denying Moore's postconviction petition (Ex. I, [1] People v. Moore, 2014 IL App (1st) 123480-U (6th Div. Aug. 15, 2014)), the last state court that ruled on the merits of Moore's due process claim and from the opinions of the Illinois appellate courts in Moore's direct appeals, which were the last courts to address the merits of Moore's Sixth Amendment right to counsel claim and jury waiver claim (Ex. B; People v. Moore, 359 Ill.App.3d 1195 (2005), No. 1-04-0766 June 21, 2005 (Williams case); and Ex. F, People v. Moore, 389 Ill.App.3d 1031 (1st Dist. April 6, 2009) (Fort case)). Frentz v. Brown, 876 F.3d 285, 293 (7th Cir. 2017) (“The state court whose decision we review is the last one that ruled on the merits of the issue.”).

         To set the groundwork, it is undisputed that petitioner Moore shot and killed Lonnie Williams in a stairwell of his apartment building on September 3, 1996. Investigation of the Williams murder brought police to Moore's girlfriend, Kimberly Fort, who provided information identifying Moore and his possible whereabouts. About two months later, on November 21, 1996, Fort was murdered in front of the apartment building where she lived. Investigation of the Fort murder also implicated Moore, who was arrested shortly thereafter in Atlanta, Georgia. Moore was charged separately for the Williams and Fort murders, and related crimes, in two cases: Case No. 97 CR 1779, for the Williams murder, and Case No. 97 CR 1780 for the Fort murder. In the Williams case, Moore's defense was predicated on the theory that he shot Williams in self-defense after Williams produced a gun during an argument the two were having over money that Williams owed him. Ex. T, Defense Opening Statement, Williams Trial, Tr. 3-22-99 at J-17 (describing struggle for gun produced by Williams resulting in Williams' being shot); Request for Evidentiary Hearing, ECF No. 23 at 4 n.2 (“Moore claim[ed] self-defense”). In the Fort case, Moore claimed that he was in Atlanta when Fort was murdered. Ex. V, Defense Opening Statement, Tr. 3-29-99 at ¶ 12:22 - N13:7. Ultimately, Moore was tried and convicted of these charges in separate bench trials, conducted back-to-back by the same trial judge, Cook County Circuit Judge James D. Egan, in the spring of 1999. A capital sentencing hearing encompassing both cases followed and Judge Egan sentenced Moore to life without parole in the Williams case and to death in the Fort case. The death sentence was commuted to life without parole by Illinois Governor George Ryan in January 2003.

         A. Pre-Trial Suppression Hearing

         Before the trials, Moore moved in both cases to suppress statements he made to police, claiming that he had been physically and mentally coerced into making them. Ex. I at ¶ 6; Ex. Q, Amended Motion to Suppress Statements at 45-49; Ex. S, Tr. 6-30-98 at 52-115 and at 117-184. In particular, Moore alleged that Assistant State's Attorney Mike Rogers had coerced him to make statements by promising Moore that he would not receive the death penalty if he did so. Ex. I at ¶ 6. At a joint suppression hearing in both cases, ASA Rogers and Detective Andrew Abbott testified. Id. ¶ 7. Rogers told the court that he spoke with Moore on December 12, 1996, at the Area 3 police station at about 2 a.m. after giving Moore his Miranda warnings. Id. ¶ 9. Rogers testified that he asked Moore about Lonnie Williams' murder, but that Moore denied being involved. Id. Rogers told Moore that Melanie Williams had implicated him and that Moore's cousin had tried to dispose of the same type of gun that had been used in Lonnie Williams' murder. Id. But Moore told Rogers he did not want to speak with him any further, and Rogers ended the interview. Id.

         Abbott testified at the suppression hearing that he and Detective William Morrissette talked to Moore later that day at around 9:30 a.m. at the Area 2 police station. Id. ¶ 7. Abbott also advised Moore of his Miranda rights, and Abbott and Morrissette talked with Moore about Fort's murder. Id. Moore was placed in a lineup at around 11:30 a.m. that day, and at about 6 p.m., Abbott talked to him for a second time after again giving him his Miranda warnings. Id. Abbott testified at the suppression hearing that during these two talks, Moore did not ask to speak to a lawyer or to family members. Id. Abbott also denied that any officers physically assaulted Moore. Id. Rogers went to the Area 2 police station at about 6:30 p.m. that evening in connection with Fort's murder, and learned that Moore was in custody at that location. Id. ¶ 10. Rogers talked to Moore at about 6:45 p.m., again advising him of his Miranda rights. Id. Rogers then told Moore that he had been implicated in the murders of Lonnie Williams and Fort, and asked Moore if he would take responsibility for his actions. Id. Moore started to cry and said, “I did it. I killed them both.” Id. Shortly thereafter, Moore provided two court-reported statements about the Williams and Fort murders.[2] Rogers asked Moore whether any promises or threats had been expressed to him in exchange for his statements, and Moore said that none had. Id. ¶ 11. Moore confirmed that he was allowed to use the bathroom and had also been provided food, drinks, and cigarettes. Id. At the hearing, Rogers denied threatening Moore or making him any promises. Id. The state trial court denied Moore's motion to suppress in both cases. Id.

         The defense did not present any witnesses at the suppression hearing. Id. ¶ 13. In post-trial proceedings, Moore has asserted that he wanted to testify at the suppression hearing but was prevented from doing so by Carey. Moore maintains that he would have testified that his statements to Rogers were not voluntary but rather were the product of violent and coercive police interrogation and Rogers' promise that he would not receive the death penalty.

         B. Jury Waivers

         As trial approached, Carey told the judge that after discussing the matter with Moore, “it looks like we are going to be waiving jury as to both cases both for trial and sentencing.” Ex. T, Tr. 3-15-99, at ¶ 3. It does not appear that Moore was present in court for that statement, but the following week, on March 22, 1999, the state court engaged in the following discussion with Moore:

The Court: Mr. Moore is present. At this juncture, it was indicated on the last date that we will be proceeding by way of bench; is that correct?
Mr. Carey: That is correct, Judge. I have again explained to Mr. Moore the differences and the consequences of waiving his right to a jury, and he has executed a jury waiver for both cases, 1779 and 1780 as to trial phase and as to sentencing. We are ready to proceed at this time.
The Court: Mr. Moore, I have been tendered, to start with, two jury waivers to two cases for trial. Is that your signature on the jury waiver forms?
Defendant Moore: Yes.
The Court: You understand you have a right to a jury trial, and do you understand what a jury trial is?
Defendant Moore: Yes.
The Court: By signing these, you are giving up your right to jury trials, asking that I hear the evidence to determine whether you're guilty or not guilty. Do you understand that?
Defendant Moore: Yes.
The Court: I also have been tendered two waiver forms for the sentencing phase. If there is a finding of guilty on either of the two trials, you have a right to a jury to decide whether-if you were found eligible-you have a right to a jury deciding the sentencing phase. Did you understand that when you signed the waivers, you're giving up a right to a jury trial at sentencing phase when you signed these jury waivers? Do you understand that?
Defendant Moore: Yes.
The Court: And you signed one for each of the two cases?
Defendant Moore: Yes.
The Court: I believe, if I understand, we are proceeding with one case, and then to the next one?
[Prosecutor]: Yes, Judge.
The Court: Do you understand, Mr. Moore, the procedure we are going on? Has that been explained to you by your attorney?
Defendant Moore: Yes.
The Court: I will accept the jury waiver.

Ex. T, Tr. 3/22/99 at ¶ 3-4. As reflected in this colloquy, Moore signed written waivers of his right to a jury at trial and at sentencing for both cases. Ex. Q at 104-05 (trial and sentencing jury waiver forms in Case 1779); Ex. DD at ¶ 97-98 (trial and sentencing jury waiver forms in Case 1780).

         On March 26, 1999, after the trial judge pronounced his verdict in the Williams trial and before the Fort trial began, he again asked Moore if he understood that he was still giving up his rights to a jury in the Fort trial and in any death penalty stage that might result in the two cases. Ex. HH, Tr. 3/26/99, at 599-600. Moore again affirmed his understanding and waiver. Id.

         C. Williams Trial

         At the Williams trial, Melanie Williams testified that she and her boyfriend, Lonnie Williams, had hired Moore in late July or early August 1996 as work as security for the Williams' Baskin-Robbins ice cream store. Rec. Ex. I. (Ill.App.Ct. Order in Postconviction Proceedings) ¶ 16. Three weeks later, Lonnie Williams fired Moore for repeatedly failing to show up for work. Id. Melanie Williams testified that on September 3, 1996, she and Lonnie Williams closed the store and drove home to their shared apartment, with Lonnie bringing a bag of money from the store's sales that week. Id. When they got home, Lonnie exited the car and walked to the front of their building. Id. ¶ 17. Melanie testified that she followed behind him, but that as she approached the building's front porch, Moore grabbed her, holding a semi-automatic gun. Id. ¶ 18. Melanie screamed, and Moore told her to be quiet before walking her up the stairs toward the second-floor apartment. Id. Lonnie then walked down the stairs and met Melanie and Moore in the stairwell, and Moore put the gun into Lonnie's stomach. Id. ¶¶ 18-19.

         Melanie testified that Lonnie grabbed her and pushed her behind him, and that Moore demanded that Lonnie give Moore “the money.” Id. ¶ 19. Lonnie handed Moore money from his back pocket, but Moore demanded more. Id. Lonnie then gave Moore the bag of money from the ice cream store, and Moore said, “You all shouldn't have done me like you did.” Id. Melanie- who was still positioned behind Lonnie-then heard a gun go off. Id. Melanie testified that she ran upstairs into the apartment, and that Moore followed her in. Id. ¶ 20. Moore put the gun to Melanie's chest and pulled the trigger, but the gun did not fire. Id. After pulling the trigger two more times with the same result, Moore ran out the door and down the stairs. Id. The next day, Lonnie was pronounced dead from a gunshot wound to his face. Id. ¶ 21. On cross-examination, Melanie denied that she had told police that she was actually inside the apartment when she heard Moore and Lonnie engaged in a struggle, followed by the sound of a gunshot. Id. ¶ 22.

         Romero Prince lived two doors south from Lonnie and Melanie's apartment on the night of the killing, and testified that on the same evening he had heard a loud crack, like a gunshot, while he was sitting in his living room. Id. ¶ 23. He then saw Moore crossing in front of his (Prince's) building, walking from the north with a “rag” in one hand and a gun in the other, and then getting into a car and driving away. Id. Romero identified Moore at a police station lineup on December 11, 1996, after Moore had been extradited to Chicago from Atlanta, where he was arrested. Id.

         Detective Mark Reiter testified that he was assigned to investigate Lonnie's shooting, and started looking for a person named Corey Porter after talking with Melanie; she and Lonnie had known Moore by that name. Id. ¶ 24. Reiter went to a townhouse where he spoke with Kimberly Fort, who gave him a photograph of Corey Porter and a possible address for that person. Id. Later, Reiter showed Fort and Melanie a digital photograph of Moore, and both women identified Moore as the person they knew as Corey Porter. Id. FBI Special Agent Michael Greene testified that he received information about Moore's potential whereabouts on December 2, 1996. Id. ¶ 25. Agent Greene arrested Moore in Atlanta, Georgia, and Moore-who had provided Greene with false identification (using his father's name) upon his arrest-was returned to Chicago on December 11, 1996. Id. ¶¶ 25-26.

         Moore initially denied any involvement in the Lonnie Williams shooting or the robbery when talking with police in Chicago. Id. ASA Rogers testified at the trial that he then spoke with Moore at about 2 a.m. on December 12, 1996, at the Area 3 police station. Id. ¶ 27. After Rogers gave Moore his Miranda warnings and Moore said he understood them, Rogers asked Moore what he knew about the shooting. Id. Moore said he had worked for Lonnie at the ice cream store and that Lonnie had “shorted” him some money, but Moore continued to deny that he shot Lonnie. Id. Rogers testified that he talked to Moore again at 6:30 p.m. that same day at the Area 2 police station, telling Moore that multiple people had connected him to the murders of both Lonnie Williams and Fort. Id. ¶ 28. Moore began to cry and said he had “killed them both.” Id.

         Moore's court-reported statement was read into evidence as well. In it, Moore said that he worked security in Lonnie's Baskin-Robbins store and also sold drugs for Lonnie. Id. ¶ 29. Moore related that he had sought out Lonnie on September 3, 1996, because Lonnie owed him $400 in back pay. Id. ¶ 30. According to Moore's statement, Moore yelled at Lonnie once Lonnie and Melanie arrived at their apartment building, and Lonnie invited Moore to come upstairs with them. Id. As Moore followed Lonnie and Melanie up the stairs, Moore pulled out a loaded gun that Lonnie had provided him for when he worked security at the store. Id. ¶ 31. Moore's statement said that when Moore told Lonnie he just wanted his money, Lonnie handed him a bag and said, “Here, take the money.” Id. ¶¶ 31-31. Moore reached for the bag, and Melanie suddenly moved toward the apartment. Id. ¶ 32. Moore said in his statement that he moved toward Melanie, and then Lonnie grabbed Moore, and the two men engaged in a struggle in which Moore threw Lonnie off, Lonnie staggered down a few stairs, and Lonnie tackled Moore. Id. Moore said in his court-reported statement that he fell back and fired one shot with Lonnie on top of him, and that Lonnie then fell sideways. Id. Moore stated that he grabbed the bag of money and ran after Melanie into the apartment. Id. ¶ 33. According to the statement, Melanie grabbed Moore's arm and said, “Please don't, ” after which Moore pushed her off and ran down the stairs and out the building, with the gun in one hand and the bag in the other. Id. Moore stated that he crossed the street, threw the gun in the park, and got in his cousin's car. Id. He went to Atlanta with his father about a week and a half later. Id.

         Moore called two witnesses in an effort to impeach Melanie's testimony regarding the shooting. Id. ¶ 34. One police officer testified that when he spoke with Melanie at the scene, she said that she had run into the apartment when Moore demanded the money from Lonnie, and that she heard their physical struggle and the gunshot while she was inside. Id. A detective testified that when he talked to Melanie at the hospital, she said she was inside her apartment when she heard the struggle and the shot. Id.

         At the conclusion of the bench trial, the state trial court convicted Moore of the first-degree murder and armed robbery of Lonnie Williams and the attempted murder of Melanie Williams. Id. ¶ 36.

         D. Fort Trial

         Moore also faced a bench trial on charges related to the killing of Kimberly Fort. Detective Mark Reiter testified again regarding his assignment to investigate Lonnie Williams' murder and his visit to speak with Fort about the possible whereabouts of Corey Porter. Id. ¶ 39. After Reiter learned on September 4, 1996, that Corey Porter's real name was Corey Moore, he showed Fort a digitally enhanced photograph of Moore. Id. An arrest warrant for Moore followed. Id.

         On the morning of November 20, 1996, Fort called Detective Patrick Harrington, who was assigned to the FBI's Fugitive Task Force, to talk about Moore. Id. ¶ 40. Harrington testified that after the call, he and two other FBI agents met with Fort, who was agitated and afraid. Id. She talked to Harrington about Moore, and Harrington then drove Fort and two of her children to their home. Id. The agents went into Fort's apartment to search for Moore, but Moore was not there. Id. Harrington saw that there was fresh food on the stove, and that the television was on. Id. Fort used Harrington's phone to call her building's management to ask that they change her locks, and Harrington gave Fort his business card. Id.

         Synetta Smothers testified at the trial that she lived two houses away from Fort's residence, and that at about 9:00 a.m. on the morning of November 21, 1996, she was at home and heard someone screaming. Id. ¶ 41. Looking out her front door, Smothers saw Moore holding a shotgun and pulling Fort, who was crying, up the street. Id. Moore pulled Fort through the front gate to her home and told her to get in the house. Id. ¶ 42. Smothers went back inside her own home, and a few seconds later, heard a boom that she thought was the sound of a shotgun firing. Id. After a few minutes, Smothers went outside, where she saw Fort lying in a gangway, bleeding and gasping. Id. When the police arrived, they showed Smothers a photograph of Moore, whom Smothers identified as the person who had dragged Fort through the front gate. Id. ¶ 43. Smothers later picked Moore out of a lineup at the Area 2 police station on December 12, 1996. Id. She testified that she had never seen Moore before the day of Fort's murder, and denied telling Detective Abbott that she knew Moore and had seen him on several prior occasions. Id. ¶ 44. At trial, the parties stipulated that a police officer who completed a case report related to Fort's shooting spoke with Smothers, who had told him that she saw two men running away as Fort lay wounded. Id. ¶ 45.

         Fort's downstairs neighbor, Katherine McGue, testified at the trial as well. McGue said that she knew Fort had a boyfriend, but had not seen him for at least three months by the time of Fort's murder. Id. ¶ 46. McGue testified that she was also at home on the morning of November 21, 1996, and that at 9:00 a.m. she heard a boom coming from her window. Id. ¶ 47. She looked out and saw Fort “full of blood” and lying in the gangway, and saw two people running toward the back gate. Id.

         Detective Abbott also testified at the Fort trial. He was assigned to investigate Fort's death and arrived at her home at about 9:30 a.m. on the day of the shooting. Id. ¶ 49. At the scene, Abbott observed a pool of blood with two shotgun waddings in it, and also saw a blood-soaked towel. Id. At trial, the parties stipulated that a forensic scientist would testify that the wadding was a .12-guage shot and that the pellets he examined were of a size that could be fired from a .12-guage shotgun. Id. ¶ 59. Abbott went to the rear of Fort's apartment building and saw that the glass in the rear window of the second floor-where Fort lived-was broken, and that the window screen was partially torn away. Id. ¶ 50. Abbott entered Fort's apartment and found Harrington's business card and a photograph of Fort and a black male. Id. Abbott showed that photograph to Smothers, who identified the man in the photograph as a person she knew as Corey, who she had seen earlier that day. Id.

         As he had at the Williams trial, ASA Rogers testified at the Fort trial regarding his questioning of Moore, and read into evidence Moore's December 13, 1996 court-reported statement regarding the Fort shooting. Id. ¶ 52. In that statement, Moore said that Fort was his girlfriend of four years and that he had walked home-to Fort's apartment-on the morning of Fort's killing with a .12-gauge, double barreled, sawed-off shotgun under his coat. Id. ¶ 53. Moore said he was armed because he was facing a death threat as a result of killing Lonnie Williams. Id. Moore stated that when he got home, he found that the lock had been changed, so he tried to enter the apartment through the safety bars on the back window. Id. ¶ 54. He said that Fort refused to open the door for him, locked the window, and told him that she did not want him in the house and was going to call the police. Id. Moore said that he lost his temper, broke the window with the barrel of his shotgun, saw Fort run toward the front of the house, and then chased her and caught up with her. Id. ¶ 55. According to Moore, he asked Fort why she was scared, and she screamed his name in response and said, “Don't shoot me.” Id. ¶ 56. Moore's gun was visible, and he told Fort to walk to the house. Id. Moore stated that he then realized that Fort must have implicated him in Lonnie Williams' murder. Id. ¶ 57. Moore said he shot Fort as she was walking about 10 feet in front of him. Id. According to Moore's statement, Moore ran away, threw the shotgun in the street, and went to his cousin's house. Id. ¶ 58. The next day, he went to Atlanta. Id. Fort died from multiple shotgun blasts. Id. ¶ 48.

         Moore's father, Michael Jackson, testified for the defense, saying that he and Moore moved to Atlanta sometime in mid-September 1996. Id. ¶ 60. Jackson testified that he had no knowledge, however, that Moore had left Atlanta for a return visit to Chicago in November 1996, and said he did not know whether Moore had been in Atlanta or in Chicago on the day of Fort's murder. Id. ¶¶ 62-63.

         At the conclusion of the Fort bench trial, the trial court convicted Moore of first-degree murder and aggravated unlawful restraint. Id. ¶ 64.

         E. Sentencing

         At a combined capital sentencing hearing on July 1, 1999, the trial court found Moore to be eligible for the death penalty in both cases. The court then sentenced Moore to natural life without the possibility of parole in the Williams case and to death in the Fort case. Sentencing Order, Ex. R at 3-4; Exs. A, K. Subsequently, the sentence of death in the Fort case was commuted to natural life without the possibility of parole.[3] Ex. B. at 2 n.1; People v. Moore, 207 Ill.2d 68 (2003) at 70. The court also sentenced Moore to two concurrent 30-year terms of imprisonment for attempted murder and armed robbery in the Williams case and a 5-year term of imprisonment on the unlawful restraint charge. People v. Moore, 207 Ill.2d 68, 75 (2003).

         F. Post-Trial Motions

         After sentencing, Moore's trial counsel moved for new trials in both cases, asserting a litany of some 61 errors that had occurred at the Moore trial and another 73 at the Fort trial. Ex. I at ¶ 67; Ex. Q at 114-21; Ex. DD at 113-22. Moore, however, also filed a pro se motion for appointment of counsel other than the public defender, claiming that his trial counsel had rendered ineffective assistance in both cases. Ex. Q at 111-13; Ex. DD at 128-130. The trial judge denied the motions filed by Moore's trial counsel and, rather than appoint new counsel to pursue Moore's claims of ineffective assistance advanced in his pro se motion, the judge appointed new counsel (from the State Appellate Defender's office) to represent Moore on appeal. Ex. I at ¶ 67; July 1, 1999 Docket Entry, Ex. Q at 5.

         G. First Round of Direct Appeals

         Because Moore was sentenced to death in the Fort case, his appeal in that case went directly to the Illinois Supreme Court. People v. Moore, 207 Ill.2d 68, 70 (2003); Ill. Const. 1970, art. VI, § 4(b); 720 ILCS 5/9-1(i). Moore appealed on a variety of grounds, including that the trial court erred in failing to consider his pro se post-trial motion for appointment of counsel to assist with his ineffective assistance claims.[4] On May 22, 2003, the state supreme court remanded the case for a hearing under People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984), holding that the trial court erred in not conducting a preliminary examination of the underlying factual basis, if any, of the defendant's pro se post-trial claim of ineffective assistance of trial counsel. Ex. B, People v. Moore, 207 Ill.2d 68, 75 (2003). The state Supreme Court remanded the case to the trial court for the required preliminary investigation. The Court expressly held that “[if] the trial court denies the motion, defendant may still appeal his assertion of ineffective assistance of counsel along with his other assignments of error.” Id. at 81-82 Moore also filed a direct appeal in the Williams case, also asserting that the trial court erred in denying his post-trial motion for appointment of counsel to assist with his claims of ineffective assistance. Concluding that the state Supreme Court's reasoning was binding as to Moore's pro se post-trial motion in the Williams case, the Illinois Appellate Court followed suit and on June 17, 2003 remanded the Williams case for a Krankel hearing also. Ex. A.[5]

         H. Remand Proceedings

         On remand, the trial judge held a joint hearing in both cases to determine whether counsel should be appointed with respect to Moore's ineffective assistance claims. Ex., Tr. 11/18/03, ECF No. 1 at 79. Moore was given the opportunity to identify all of the grounds on which his claims were based. Most relevant to his current petition, Moore advised the court that Carey had assured him that if he waived his right to a jury trial in both cases and for both trial and sentencing, that the judge would not impose the death penalty:

Okay. Jack Carey, you know - Jack Carey told me that if he waived a jury for both - that if I waived a jury for both my trial and sentencing hearing, the Judge would not impose the death penalty. Had I known - had I not been given that assurance from Mr. Carey, I would have insisted on a jury trial in both cases. * * * And Jack Carey stated that if I take a bench and lose, he was sure that the Judge wouldn't sentence me to death.

Id. at G-5:23 - G-6:8; G-13:12-14.

         Moore also claimed that Carey would not allow him to testify in support of the motion to suppress his statements. As to the suppression motion, he also asserted that Carey had failed to establish that he had invoked his right to counsel when facing extradition from Georgia and therefore should not have been interrogated by Chicago police when he arrived from Atlanta. With respect specifically to the Williams case, Moore asserted that Carey had failed to interview Donna Smith, a witness who lived in the same building as did the Williams. According to Moore, Smith told police that she had heard a struggle in the hallway, testimony that he contends would have supported his claim of self-defense and impeached Melanie Williams' account of Moore's attempt to shoot her. As to the Fort case, Moore complained that Carey had failed to interview alibi witnesses who would have placed him in Atlanta when Fort was killed, specifically Shirley Rivera, her daughter Lashawna, and Cynthia Mahogney, an employee of a motel where Moore was living at the time. He further maintained that Carey had failed to timely interview his father, allowing the prosecutors “to get to him first and to obtain a signed statement from him.” ECF No. 1 at 82, Tr. 11/18/03 at G-8. Moore also alleged that a witness who police said had identified him in a lineup had actually identified another man in the lineup. Moore also identified a litany of instances in which he contended that Carey had failed to effectively cross-examine or impeach witnesses.

         At a continuation of the hearing on 12/10/03, the judge heard testimony from Paul Coffey, who had second chaired Moore's defense in both cases. (Jack Carey, Moore's lead attorney, had passed away before the hearing.) Coffee joined the defense team about a year after Moore had been charged. He testified about work that had been done in preparing a motion to suppress Moore's statements in both cases, efforts made to try to locate witnesses, and to locate potential alibi witnesses in Atlanta. Coffey indicated that Carey had advised him that an “alibi defense out of Atlanta is not going to work.” ECF No. 1 at 110, Tr. 12/10/03 at I-10. Coffey testified that he met with Moore three or four times in lengthy sessions discussing the case and pretrial motion motions, but that Carey had most of the contact with Moore.

         Coffey testified about all of Moore's contentions, but only those pertinent to understanding or resolving Moore's habeas claim are summarized here. As to Moore's jury waivers, Coffey testified that he and Carey had advised Moore to waive his right to jury trial “for all sorts of reasons, ” and identified two specifically. First, Coffey related, he and Carey felt that the process of selecting a “death-qualified” jury (also known as “Witherspooning” the jury; see Witherspoon v. Illinois, 319 U.S. 510 (1968)) comprising jurors who had acknowledged that they could, under some circumstances, impose the death penalty; as Coffey bluntly described it, “the difficulty in Whitherspooning the jury [is] having to set [sic; seat?] twelve people that are going to already say that they would be willing to kill someone.” ECF No. 1 at 111, Tr. 12/10/03 at I-11.[6] Coffey also indicated that he and Carey believed that the brutality of the facts associated with the killings would affect jurors more than it would a seasoned trial judge. Coffey testified that “by the time we proceeded to the trials, it was my understanding that Corey had wanted to waive his right to a jury.” Id. at I-12. He added that Moore never indicated, even after being found guilty in the Williams trial, that he did not want to waive his right to a jury trial in the Fort case. Id.

         As to Moore's claim that Carey failed to contact an attorney who represented him in Atlanta during extradition proceedings following his arrest, Coffey did not know whether Carey had contacted the attorney, but recalled that he and Carey had concluded ultimately that an argument that his statements in Chicago should have been suppressed because he had invoked his right to remain silent during the extradition proceedings was not promising.

         Coffey testified that Carey did make efforts to interview witnesses, but he did not specifically know whether Carey had contacted Donna Smith. Nor was Coffey able to say whether Carey had interviewed the potential alibi witnesses in Atlanta that Moore had identified. The only thing Coffey could recall was that Carey concluded that an alibi defense “was not going anywhere.” Id. at I-15.

         Moore declined the opportunity to question Coffey during the hearing. Id. at I-17; People v. Moore, 389 Ill.App.3d at 1036. After Coffey's ...


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