United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr., United States District Judge
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.
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,  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
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
Pre-Trial Suppression Hearing
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.
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.
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. 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.
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
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
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
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
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
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.
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. ¶¶
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.
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
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. ¶¶
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
conclusion of the Fort bench trial, the trial court convicted
Moore of first-degree murder and aggravated unlawful
restraint. Id. ¶ 64.
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. 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).
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
First Round of Direct Appeals
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. 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.
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.
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.
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.
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. 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.
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.
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.
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 ...