*3 ROVNER, Circuit Judges.
ILANA ROVNER, DIAMOND Circuit Judge.
In jury Illinois eigh convicted teen-year-old Patrick Hampton of deviate assault, sexual attempted rape, robbery, and aggravated battery, and the trial judge ordered him serve an extended prison sixty term of years. Hampton filed petition for a writ of corpus habeas pursuant § 28 U.S.C. alleging (among other things) that his trial counsel was constitutionally for failing ineffective to investigate and interview exculpatory eyewitnesses to the crimes of which he was convicted and for making promises in his opening jury statement that he did keep. not Following an evidentiary hear ing, the district granted the writ on grounds. these Leibach, Hampton v. (N.D.Ill. 2001). Nov.29, WL 1518533 The appealed. State has By order of the Unit ed Supreme Court, States Hampton has been released prison during pen- dency of this affirm appeal. We the dis trict court’s judgment.
I.
The offenses which Hampton of was con- victed took place at a rhythm and blues concert held at Chicago International Amphitheatre evening on the of December 29, 1981. Four performed bands at the Milk, Slave, concert: Chocolate Michael Henderson, Zapp. and after Shortly mid- night, while the last band was playing, still group up forty individuals marched John F. Douglas Murphy, E. Whitney up the aisle toward the stage, chanting (argued), Office of the Defender, Federal Gangster “Black Disciples” and “Third IL, Chicago, for Petitioner-Appellee. Nation,” Disciple World pounding their counsel, that his asserting signals making gang and together, fists and that being paid fees were concert- Latino Three their hands. with cooperating family were ton and N., Denise N., and Martha goers Hugo— The case. preparation with him fifth row seated M.1—were pro- Strayhorn, Earl E. Hon. judge, trial seats from their As arose theater. problem appointing to solve posed leave, group attempted and demurred, indicating Rodgon. removing their them, attacked aisle repre- problems” “some there were jewelry, clothes, taking their wallets at 129. R. 48-1 senting Hampton. assaulting the them, sexually beating release refused to unmoved judge was eventually Security guards women. two *4 he subse- engagement; from the Rodgon three victims the rescued and intervened to con- motion Rodgon’s granted quently perpetrators the of None assault. by appoint- counsel as tinue the scene. detained ment. attend- Powell Keith year-old Fourteen the that near trial, testified At Powell attack. witnessed the and concert ed the ap- concert, of men a group the end of of former a number later identified He making stage, Amphitheatre the proached Taylor Robert from the acquaintances and their hands signs with gang-related (a having housing project) public Homes defen- slogans. three gang chanting who had people of group in the been Pow- group. of that members were dants theater. stage of the the marched toward for two the defendants known ell had individuals that among the Hampton was in the lived had once years; he three would identified, although Powell Powell defen- the Taylor Homes where Robert actually see not testify did later a disturbance Powell saw resided. dants on the the attack Hampton participate point At some stage. the near out break Latinos. three up ran melee, woman a naked during on December arrested Hampton was pair Knight throw aisle; saw he also at that years old eighteen He was 1981. stage Although in the air. pants arrested. been never before and had time incident, the rest during lit lights were individuals, including nine Ultimately, were Amphitheatre lights attacks. charged were Hampton, concert, Powell Following the darkened. sen- guilty were pleaded of them Six Rob- back 43rd bus took Street of time periods short to the tenced and State near 43rd Homes Taylor ert awaiting trial. jail already spent with his staying Streets, he was where Ronald Mal- Hampton, Three defendants — defen- of the three each He saw aunt. Ricky Knight pleaded lory, and — that he other individuals (among dants jointly before tried They were guilty. knew) also overheard bus. He on that juries. separate three could which someone—he conversation having bragged about say represented Attorney Jack who— aof vagina into the fingers” his family “stuffed trial. at the having taken woman, R. 48-2 at previously Rodgon, who had retained he had what reported Powell jewelry. In ad- Hampton’s brother. represented the after- police and heard seen withdraw trial, sought to vance privacy. their individuals the these three refer to shall 1. We respect initials to last first names and their noon of December 31. Powell testified their penises, and Hugo saw Knight put although Hampton was in group his in mouth, Denise’s telling her “some- ” approached stage, he had not seen ‘here, thing like take it.’ R. 48-2 at 766. anyone, attack nor had he heard A security guard eventually came to his Hampton say anything on the bus. Powell aid; another helped Denise. They were also testified that he had picked taken to a first aid station and subsequent- out of a line-up, and he positive on this ly by ambulance to a hospital. Hugo later point. R. 48-2 at However, the trial Knight identified from photographs and evidence subsequently reveal from a line-up. He not identify did he had picked never Hampton out of a ton as one of his attackers. Nor did he line-up. R. 48-3 at 1087. give the police a description of his assail- N.,
Hugo prior ants one of the three victims of the first line-up that he assault, testified that Hugo he had viewed. agreed attended the that at the time of girlfriend, concert with his M., assault, his Denise the last band was still playing, sister, N., Martha boyfriend, Martha’s the air in the Amphitheatre was smoke- S. Scott sat in They filled, the fifth row on the and the light coming main floor of Amphitheatre. A num- *5 the multi-colored stage lights. of preceded ber disturbances the assault in M. Denise testified she, that when Hugo, he, Denise, which and Martha were in- and Martha attempted to leave the the-
jured: In the following intermission the ater, path their blocked group a of act, second boyfriend Martha’s was struck twenty fifteen to men who were chanting crowbar; the head with a during the making and signals. hand She Hugo and act, third Hugo security personnel saw were pushed shoved, and and she felt chasing theater; through someone the and hands grabbing her. Her clothing and during the intermission between the third jewelry ripped were from her person, and acts, and final he saw another fight break fingers she pushed felt being vagi- her into among out eoneertgoers. During the last na. After someone twice struck them with act, Denise, Hugo, when and Martha saw chair, a she fell ground dazed to the along group the of men down moving the aisle Hugo. A of number the men had their toward the stage chanting “Third World penises out, and of two them approached Disciple and making Nation” hand signals, her. Knight attempted put to his her they (Scott decided to leave. S. had al- “here, mouth (saying it,” take R. 48-3 ready left due to his injury.) they As 1017) as did Mallory. Several men sat on attempted so, however, to do the group her and legs pull one to tried them apart. blocked their exit and attacked them. Denise attackers, saw one of Hugo lost sight of whom she Martha. As Hugo at- identified as tempted Hampton, to shield move his Denise from hands and group, they were she him try cold, both felt to a punched. object kicked force and hard His off, shirt was into vagina. torn he people Eventually, her going security felt a (his through wallet, guard his pockets arrived keys, managed and and to break up taken) jewelry all were and then assault. a rest Denise suffered number of of his injuries were attack, clothes torn from body. from the including a tear in Denise was being also stripped her vagina required of her that surgical repair, a Knight clothes. infection, twice struck him and bladder and scarring on her chair, Denise with a and on the second breast. From photographs and a blow both fell to floor. At line-up, this subsequently she identified a point, number exposed attackers had ton as the individual who had attempted to night of to seconds four five face cross- for On vagina. into her object force an she that time during that and the assault that she examination, testified Denise who people flailing at kicking and had seen long she how not estimate could viewing to her. attacking Prior were there She indicated individual. not de- did line-up, she 31st her, December attacking many were men were to assailants or her other scribe concentrating on the that she they were beyond saying police put their tried men who faces 949-50. R. 48-3 males. young black viewing Prior to mouth.2 in her penises give line-up, she did a later acknowl- photographs Thomas Ptak Detective or her according description a cross-examination edged on police.3 report investigative assailants ato written N. had Martha prepare, helped be- the assault testified that N. Martha as Garner, Hampton, Ezra identified to march began of men group a gan as into his hand put tried who had the man anoth- signals at making stage, toward Ptak testified vagina. R. 48-3 her front of standing in that was group er erroneous, report was aisle, she at the looked over stage. As she Hampton. actually identified Martha him as around gathering men Knight saw she, Heinrichs, supervisor a field aisle. down the When William they proceeded office, was County Sheriffs to move into attempted the Cook and Denise Hugo, at the security guard leave, her- moonlighting she found in order the aisle La- young midnight, a thirty Just after concert. by group up surrounded self N.) (Martha and pants torn blouse swung a chair tina in a Knight men. thirty-five or fight him that and told him approached the blow. *6 to avoid ducked and she at her and her brother and that taking place by the hair was her pulling felt then others She He left being attacked. girlfriend were and his punched was stage. She the toward then guard, custody of another thé her in A man taken. kicked, jewelry was and her to as- guards other up ádditional tore her rounded as that identified she ap- guards As he him. (unsuccessfully) sist attempted pants and attack, a he saw of the scene the proached vagina. she into her When hand put his in a gathered men group of black say, large Knight away, she heard get tried circle, a man of In the that center circle. at 856. She 48-2 Get her.” R. her. “Get being ground on the and a woman were security guard to a managed to run way his pushed As Heinrichs beaten. nothing. he did help, but for his asked circle, he saw the center through who did guard second located a then She later that he identified man young black that subse- testified she Martha help her. woman, the bending over as line-up of Hampton out picked quently area. vaginal her arm toward thrusting his 31. She December place on took him off yanked guards of the other One only seen his that she acknowledged testi- Thomas Ptak Chicago police Detective January 3. that on indicated 2. Other police with supply the did Mallo- M. that Denise identified Ronald fied Denise had However, no person put Knight, description who of her assailants. ry, as the mouth; subsequently, police Janu- on the penis description her was included into such one Knight as the ary she identified at 960. 48-3 prepared, R. he report trial, 952-53, At 957. 48-3 at this. R. did attempted both men had testified that Denise this, succeeded. one had that neither do but 1018, 1019. 48-3 at R. woman, guards and the helped the two knowledge, gang member. Gregory victims—both them naked and Hubbard testified that he had known Mal- safety. bruised —to Heinrichs lory testified for five to years six from neigh- grabbed he borhood, assailant he identified that he too present was at the shoulder, by the concert, but was un- that he Mallory saw during the able to keep him and attacks, the others from that Mallory had not part taken fleeing. stand, On the witness attacks, Heinrichs and that Mallory was not a indicated that he saw Hampton for no gang member. Mallory (“Grego- more than three to during four ry” seconds “Gregory or Mallory”), Ronald’s broth- assault; he also er, testified that he had testified that he too had attended the searched concert, earlier the evening, that he had attacks, seen the when Hampton was admitted to the the- he saw where his brother during Following incident, ater. attacks, Heinrichs Mallory was not one of made no effort to contact police for the attackers. Gregory acknowledged that week; more than a ultimately, someone previous he had a conviction for an unspec- police department contacted him ified Finally, crime. Mallory himself testi- January fied, Later that day, Heinrichs acknowledging that he present identified Hampton and other indi- three the concert but denying any involvement participants viduals as in the attacks from in the Mallory attacks. said ap- that he a photograph a line-up. On previ- proached police on his gave own and day, ous Heinrichs had seen a television them a statement after hearing news report about the attack. That report looking were him. conceded, He how- (who a picture featured of Hampton ever, that he had lied to the authorities then in police custody), and Hein- when told them he had not anyone seen estimation, richs’ (other photograph Hamp- brother) he knew than his at the ton had been displayed on the air for as concert.
long as one minute. Two of Mallory’s witnesses had favor-
Ricky Knight called no witnesses in his able things say about Hampton. The defense. He *7 offered single stipula- a government asked Hubbard on cross-ex- tion to the effect that a detective would amination whether he had anyone seen he testify that police the investigation re- recognized participating in the attacks. vealed it was Mallory, Ronald and not Hubbard not, said that he had and on Knight, who put had his penis in Denise’s further questioning, testified that he had mouth. not seen Knight, either Hampton, or Mal- lory part take in the attacks. R. 48-3 at Mallory Ronald presented four wit- 1145. Mallory, also cross-ex- on nesses besides himself. A woman who had amination, that Mallory denied either or grown up in the neighborhood same as he Hampton was a member of Disciples the testified that knowledge to her he was not gang. R. 48-3 at 1107. a gang witness, A member. second knew Mallory projects from the However, and con- because each defendant’s case friend, sidered him a testified that she had heard a separate jury, was Hampton’s concert, attended the that she had jury seen did not testimony. hear this When attacks, the that she was standing right the putting witnesses, State was on its own next to Mallory while the juries attacks took all three present were in the court- place, Mallory that had not participated in room at the same time. But as counsel for attacks, not, and that he was to her each defendant turns cross-examining took was Hampton that of evidence the lack each witnesses, as later
the State’s
that
simply noted
gang;
a
he
evidence,
uninvolved
his own
on
put
defendant
a case.
put
on
obliged
was not
Hampton
of the court-
in and
rotated
out
juries were
one
only heard
jury
each
room such
deliberations, Hampton’s
jury
During
thus
jury
Hampton’s
case.
defendant’s
of
judge. One
to the
*8
brutal,
wanton,
[hei-
cruel,
depraved,
him
police
contacted
until
as a witness
I have
activity
nous],
assaults,
animalistic
and
after the
than a
more
week
years in the
thirty five
some
run into in
he
only after
he had identified
aas
prosecutor,
a
of law as
practice
featuring
photo-
report
had
a news
seen
I’ve
Judge.
aas
and
defense counsel
ques-
also
Rodgon
Hampton.
graph of
involving the
into a
run
situation
never
and Denise
N.
ability of Martha
tioned
in this
facts that evolved
type
[heinous]
of their
one
identify Hampton as
M. to
in this
to exist
shown
and that were
case
attackers,
gotten
noting
in-
actively
case and Mr.
under
assailant
glimpses
brief
to
object and
foreign
take a
to
volved
explained
Rodgon
conditions.
stressful
of a
vagina
force
into
attempt to
nor
testify
Hampton’s failure
neither
being
woman
prostrate
held
on the
had promised
(R.
in his opening statement
ground, people on each arm
125-27).
and on each 48-5 at
(Hampton’s petition in-
leg. That’s animalistic. That’s de-
cluded other
here.)
claims not relevant
praved. That’s
doing
cruel. That’s
Hampton submitted an affidavit in support
great harm and I can’t allow it to pass
of the petition in
averred,
which he
inter
and I
pass
will
allow it to
unnoticed.
alia, that
he had
names,
R. 48-8 at 37. He
imposing
was not
addresses,
and telephone numbers of
sentence
purpose
rehabilitation,
for the
Gregory Mallory,
Williams,
Clinton
Judge
explained.
Strayhorn
“It is purely
Garner,
Ronnie
and he had told Rodgon
simply
for punishment for
...
that they would confirm that he had not
cruel, wanton, brutal,
most
[heinous,] de- participated in the attacks. R. 48-5 at 168
praved, animalistic act
I
have ever
¶ 12. Williams and
signed
Garner
affida-
seen committed on a human being.” R. vits indicating that Hampton
48-8 at 38.
judge
ordered Hampton
gang member, that they had attended the
concurrent,
to serve
lesser terms on the
him,
concert with
and that Hampton was
214;
R. 62
charges.
at
R.
at
48-6
not involved in the attacks R. 48-5 at 180-
¶
(Williams);
SI 115
(Gar-
at
id.
182-83 5
review,
On direct
the Illinois appellate
ner). They also stated that Rodgon had
affirmed
conviction and
¶
never contacted them. R. 48-5 at 180 4
sentence. People v. Knight, 139 Ill.App.3d
¶
(Williams);
(Garner).
id. at 182 4
Hamp-
188,
521,
93 Ill.Dec.
investigate and dismissed the bulk of exculpatory Hamp- interview oc- (R. petition, currence and ton’s including character witnesses ineffectiveness 48-5 112-13, 117-19), for claim. She failing to evidentiary determined Hampton testify defense, in his own hearing was warranted failing present evidence that claim that he had denied right been ton was not a gang member as Rodgon testify on his own R. behalf. 48-7 at C38.4 subsequent issue, 4. At *9 hearing the them, on that that he had left with and he had that Rodgon explained that he Hamp- had advised taken the bus home with them. R. 48-7 at ton not to take view, the witness stand Rodgon’s because D32. specter In guilt by the of Hampton would have testified that he knew association was a problem.” "terrible Id. at case, everyone including involved in the Rodgon the D33. conveyed that he testified defendants, other gone that he had Hampton, to concern but left it to his client to defendants, concert with some of the other testify. decide whether or to not at Id. D31. have been too Hampton might that hearing believe no such that concluded she But types the Rodgon looked had acquitted of inef- allegations his as to warranted was had Mallory’s counsel inef- that the thought of witnesses judge The fectiveness. to regard with part because evidence “[T]he in presented. claim meritless fectiveness the than the outcome much weaker that so Mallory not show was Mr. Hampton could had Hampton,” different Patrick been to regard trial his of evidence al- Hampton steps Hampton’s that C35. In taken Id. at Rodgon reasoned. she at R. 48-7 to take. vic- neglected as the he had leged case, security guard well a view, Hampton’s judge’s C34, identify In the to C36. were able assault of the tims to attempting was counsel by postconviction Mallory, against the case Hampton; in- judgment, strategic his own testimony substitute of solely on contrast, rested Rodgon. of for that hindsight, by formed M.). (Denise id. See single a victim to Moore went on Judge at C34-35. Id. af Illinois A divided of fact a ... as matter “find ineffec Hampton’s of the dismissal firmed tac- trial Ro[dg]on’s that Mr. ... record Hampton’s claims, concluding that tiveness in which the manner tics, strategy in his two of satisfy either not did allegations interest Patrick represented he Washing v. forth set Strickland criteria highly rather but not ineffective 2052, 80 ton, 104 S.Ct. 466 U.S. that noted She Id. C35. at competent.” (1984)—objectively sonab L.Ed.2d unrea quash to moved Rodgon had prejudice and counsel by performance le evidentiary had obtained arrest and People Hampton, resulting therefrom. motion, he had moved hearing on that 876, 726 1065, 244 Ill.Dec. Ill.App.3d Hampton and the identification suppress (herein (1998) (unpublished) N.E.2d he request, that hearing obtained also could Hampton after, “App.Ct.Order”). regarding motions additional pursued had reasoned, the court prejudice, show case, and issues in discovery “overwhelming” proof given the effectively cross- he had the trial during two of the fact that guilt namely, at Id. witnesses. the State’s examined — attack, along with securi of the victims the notion rejected judge C32-34. him as one identified ty guard, had reason supplied Mallory’s acquittal that testi of him possibility contrast, had Rodgon ton discussed that testified Hampton, say, Rod right fying what had him that informed had never right to of his explain decision testify gon did not had informed op than testify was his rather was his as or not the decision testify whether and that at D7-8. Id. Rodgon's to make. Rodgon's, and that posed to during the Rodgon told he had said that She stand. Id. witness to take the elected not testify. Id. wanted to that he State’s case "overwhelming” found, view of also Rodgon Hampton, according to But D9-11. eyewitnesses” "numerous testimony from the again him matter with did not discuss Hampton as case identified State’s in the to the court Rodgon announced until after un perpetrators, one of the resting its case. Id. that the defense Hamp about changed his derstandably mind Hampton asked point, D11. At Id. at D57. testifying his own defense. ton stand, and the witness why not take he could during the course ... not unreasonable "It is Hampton, responded according to Rodgon, concurring trial or as matter of a trial all everything will worry, be simply, “Don’t attorney and his strategy a defendant between right.” Id. type of with the stand agree to take the Rodgon and hearing both After Hamp Mr. had discussed Rodgon’s ver- Judge credited testify, Moore overwhelming to, light of the testifying ton See id. Hampton’s. events over sion of case.” Id. evidence in Rodgon and She found D58-59. *10 perpetrators. App.Ct. defense,5 Order at 5. Nor the court noted that Rodgon, at could Hampton establish that Rodgon’s the time statement, he made this believed performance attorney objective- as his Hampton was would take the stand. Id. ly unreasonable. The decision however, whether to at 8. Subsequently, he discussed witness, present stated, a the court Hampton is a with problem guilt by association, strategy matter of and “cannot and support a he also became concerned claim of that Hampton ineffective assistance of counsel.” not be able to with- Id. at 6. stand rigors The court noted that attorney an cross-examination. Id. end, only In the obliged is to make a reasonable inves- advised tigation or to choice make whether or testify reasonable decision not make, was his to particular that renders investigations un- had decid- not to necessary. Here, testify. ed Id. Id. The Rodgon knew that court viewed change this as a in trial Hampton had strategy attended the concert along could a claim of several with other defendants and ineffectiveness. Id. that he positively had been identified as one of the Judge Sheila dissented, O’Brien reason- perpetrators two victims guard. ing that Hampton should have had the Against that backdrop, believed, the court same opportunity that State Rodgon reasonably could have concluded present occurrence witnesses: that pursuing witnesses who would simply This crime area, occurred in a large have confirmed that present hundreds of people present. Defendant scene of crime and linked to the could have present been in the area and other perpetrators of posed the offense not have participated in the events and much of as a detriment to Hamp- benefit these occurrence witnesses could have ton’s defense: corroborative information. These alle- gations make a testimony of these other substantial showing witnesses of a violation of
would have defendant’s been redundant constitutional rights. emphasize serve[d] the fact that de-
fendant went to the concert with the Id. 21. The Illinois Supreme Court perpetrators, present during the as- subsequently denied Hampton’s petition sault, and left with perpetrators. It for leave to appeal. People Hampton, was not unreasonable for defense coun- No. Ill.2d 235 Ill.Dec. sel to find troubling. Indeed, this (Ill. 1998) Oct.6, N.E.2d (unpub defense counsel’s assessment that lished). defen-
dant faced a probability “guilt by Having exhausted his state court reme- association.” dies, Hampton pro filed a petition se for a Thus, Id. 7. “[a]pplying heavy measure of corpus of habeas writ the district court. deference defense judgment,” counsel’s The court appointed represent counsel to the court concluded that Rodgon made a Hampton, and attorneys subsequently reasonable decision to interview the petition which, filed amended in rele- witnesses that had named. Id. part, vant re-asserted claim of As for Rodgon’s failure to prom fulfill the ineffectiveness. R. 27. Over the State’s ise that testify objection, his own the district court conducted an (App.Ct. 8) 5. The court noted Order at promise but did supplemental post-convic- in his Rodgon’s prediction not address that the evi- (R. 125-27) petition tion 48-5 at and in his Hampton's dence would show of involve- lack (R. 17-18). appeal Ex. B any gang. Hampton ment with had raised *11 the con- attended there” had Rodgon’s people to hearing explore evidentiary However, did not he 91. Id. at wit- cert. exculpatory investigate to failure Had individuals were. these who know nesses. potential names him the given Hampton that hearing at that testified Hampton testified, witnesses, he Rodgon occurrence that he period nine-month during the spoken through and followed have would trial, Rodgon in advance incarcerated Rodgon did at 116. Id. witnesses. to such one jail on at the with him had met in an Taylor Homes Robert visit the not min- forty-five thirty occasion, to for about witnesses, nor identify potential to effort During this 10, 13.6 59-1 at R. utes. Id. do so. at investigator an he have did shortly after place took which meeting, exceptions, immaterial two With 100-02. January arraigned in Hampton was re- *12 Rodgon 121. indicated that he did ry’s not witness list. Id. at Gregory 73. Hub- contact co-defendant Ronnie Garner be- bard among was the witnesses included on (as plead guilty cause when defendants he Fay list. Id. recalled also that he had), they typically knew Garner incrimi- spoke Rodgon with regularly about the themselves but nate their co- case as encountered one another in defendants. Id. at 128-24. hallways He had not of the Criminal Courts build- spoken any with ing. of other defendants Id. 79. pleaded guilty reason; for the same Having heard Hampton both and Rod- Rodgon good strategy did not think it to gon testify, Judge Kennelly credited put people pleaded guilty who had on the Hampton’s testimony in part. relevant He witness stand. Id. at 125. He acknowl- Hampton found given had Rodgon the (at edged, however reluctantly), first potential names of witnesses but that Rod credibility one cannot assess the of pro- gon had failed to up follow with these spective witness without first talking to witnesses. 2001 WL at *7-*8. him or her. Id. at 147. Judge Kennelly thought that a decision Winston,
Harold Hampton’s postconvic- Rodgon pursue thése witnesses attorney, tion also testified at the hearing might have been strategically justified vis Judge Kennelly. before Winston recalled Garner, á vis pleaded who had guilty to that after obtaining Rodgon’s trial file and charges arising out of the incident and who contents, reviewing the he Rodgon asked had not government’s contested the ver any the lack of about notes from inter- events, sion of implicated which Hampton. with views or other witnesses. *8, However, Id. at *16 n. 7. the failure to Rodgon told Winston that he had given investigate would not justified have been all that him he R. 59-1 at had. 32. Win- Mallory as to *8, and Williams. Id. at ston also indicated that in the course *16-*17. Not having interviewed those preparing Hampton’s supplemental post- individuals, two Rodgon had no strategic petition, conviction he had spoken with basis for dismissing them as prospective Gregory Although Hubbard. Hubbard Id. at witnesses. *8. information, him helpful
had he had Judge Kennelly further observed that ultimately sign refused to an affidavit in Rodgon admitted knowing group that a petition. Id. 54. people who lived at the same housing pro- W. represented Michael had Fay ject Ron- concert, had attended the Mallory at ald the trial. He be- and that testified some of those individuals Judge Kennelly fore that he went have witnessed the attacks. Id. at *8. But Taylor along Robert Homes with as- two had made no effort locate such public sistant defenders repre- who were individuals. Id. Nor any was there indica- senting Ricky Knight speak other tion that spoken had with the at- people who had attended the torneys concert and representing Hampton’s co-defen- witnessed the attacks. R. 59-1 at 68- dants their about Id. At witnesses. least recall, Fay however, did not whether one of those Gregory Hub- witnesses — the occurrence witnesses he called to testi- exculpated bard —could have Hampton. fy in Mallory’s defense were Id. among Finally, Rodgon had never asked people spoke to at Taylor the Robert Hampton for the names of witnesses who Id. Fay Homes. at 71. verify confident could that he in gang, was not nor that, pursuant rules, to Circuit Court he had he made to locate efforts given Rodgon would have a copy of Mallo- such witnesses. Id. concert, time of years at the nine about at the evi- also testified Garner
Ronnie had attended Kennelly. testified. Judge also hearing before dentiary to ten feet five concert, concert, about Garner was seated At the time and said years Hampton, for ten known Garner, As crowd. attacking According to not near friend. *13 at- Ronald above, had Gregory’s member. Garner brother gang not a noted Ronnie Hampton, with along along concert tried with Mallory tended the (suc- Poole, Ezra Garner Jackson, in Ronald’s Sandelle Gregory testified had and Hamp- brother), (Ronnie’s Hampton; cessful) and said Gregory Although defense. Dur- with them. the concert Hampton’s ton also left on have testified would that he near concert, was seated ing the con- attorney never behalf, had Hampton’s at sight within his and was Ronnie Garner using her- Gregory begun had him. tacted that testified times. Garner all 1989, was still addicted in and oin that crowd attacked part of the was not evidentiary hearing took when the narcotic that no said Garner Latinos. the three felony was convicted in 2001. He place knew he asked him what had one ever in possession in for heroin theft and at- in the Hampton’s involvement about not believe Gregory did Although testify him to tacks, anyone asked nor had had af- of heroin longtime abuse his tes- have He would Hampton’s behalf. a number memory, he answered his fected he been had Hampton’s in tified defense him with answers put to questions charged been himself had Garner asked. so,” and he was guess “I “okay” and like attacks, however; in the participating about certain details to recall unable guilty pleaded ultimately had and he in) sat what row he (e.g., precisely concert advice) was sen- lawyer’s and his (against the fact that (including the trial about already had months he to the six tenced Gregory had juries). But it three involved wit- On the in detention. pretrial served time of the user at the been heroin Kennelly, Garner Judge ness stand before trial. Hampton’s time of or at the concert not, fact, participat- he had insisted that Kennelly character- although Judge And attacks, plead but had elected to in the ed memory imperfect, Mallory’s ized much potentially in order to avoid guilty nonetheless. testimony credible his found tried and convict- had he longer term been passage of Unsurprisingly, not contested although he had And ed. use, of heroin and the effects time prosecutor of events that the version the inci- memory of Mallory’s] [Gregory hearing change plea at the recited —a the issue is a bit. But has dent faded implicated had Garner version good wit- would make whether he it had he endorsed Hampton both—neither today, held trial were Hampton’s if ness 21-27; R. see R. 57-8 at as accurate. testimony might his effect but what (State proffers 11 at 31-32 Ex. Petitioner’s Court finds trial. The had Strayhorn Judge plea for factual basis an effec- have made Mallory Garner accept plea but finds sufficient trial. at that defense witness tive it); compare id. to endorse not asked 1518533,at *9. 2001 WL (co-defendant stipulate to Ford asked Kennelly found proffer). Judge State’s July six died Williams Clinton credible. testimony to be Garner’s evidentiary hearing took years before the 1518533,at *9. WL Hamp- been- a friend He too had place. the concert. attended and had ton’s next- Mallory, had been a time that at the was alive for Williams Hampton’s and friend of neighbor door petitioned postconviction ton had relief argued petition signed in state court and had an affidavit Rodgon should have contacted and inter- petition indicating of that Gregory. viewed Under these circum- participated had not at- in the stances, Hampton’s federal claim was not Kennelly tacks. R. Judge 48-5 180-81. materially different from the one Hampton no discerned reason to believe pursued in state court. 2001 WL Williams would not have been a credible 1518533,at *10.
witness on
behalf. 2001 WL
Nor did
failure to submit an
1518533, at *9.
judge pointed
out that
affidavit from Gregory
proce-
constitute a
linking
there was no evidence
Williams to
dural default that barred federal consider-
group
that had perpetrated the at-
ation of the ineffectiveness claim.
Id. at
tacks.
Id.
*14
*11;
Reed,
see
255,
Harris v.
489 U.S.
reaching
Before
of Hamp
merits
261-62,
1038, 1042,
109 S.Ct.
103 L.Ed.2d
claim,
failure-to-investigate
ton’s
the dis
(1989).
308
Although the Illinois Appellate
judge
trict
determined
there were no Court had noted the absence of an affidavit
procedural
precluded
obstacles that
either
from
in
Gregory
claim,
its discussion of the
evidentiary hearing
he had convened it had nonetheless addressed the merits of
or consideration of the merits of-the claim.
the claim in
entirety
its
rely-
and without
The court first
concluded that
ing on
procedural
flaw of the missing
fairly presented
had
in
the claim
state
affidavit. Because the state court chose to
court and thus had
his
exhausted
state
default,
ignore this
Judge Kennelly rea-
respect
court remedies with
to that claim.
soned,
posed
no obstacle to
con-
federal
2254(b)(1), (c);
§
See 28 U.S.C.
O’Sullivan
sideration of the ineffectiveness claim.
Boerckel,
838, 844-45,
v.
526 U.S.
119 S.Ct.
1518533,
2001
WL
*11.
1728; 1732, 144
(1999);
1
L.Ed.2d
Picard v.
Next,
judge
found that a federal
Connor,
270, 275-76,
509,
404 U.S.
92 S.Ct.
statutory restriction on evidentiary hear-
(1971).
512,
so,
hearing, but
hearing and the
opposed
Mallory that
the State
Gregory
affidavit
one.
to conduct
had refused
his
state court
support
submitted
Hampton had
held,
court theo-
hearing
Had a
been
Hampton had
given that
petition,
habeas
likely that
rized,
overwhelmingly
“it
is
an affidavit from
not submitted
been called
Mallory would have
[Gregory]
petition
postconviction
of his
al-
Consequently,
*12.
testify.” Id. at
provision forecloses
But this
court.
state
an
record lacked
the state court
though
if the
of the record
expansion
what
Gregory that outlined
develop the
affidavit from
failure to
petitioner’s
habeas
behalf
on
court was
state
appropriately
record
(had
as a
Rodgon pursued him
been
diligence or
lack of
petitioner’s
to the
due
as-
witness),
could not
omission
be
peti
larger fault attributable
some
diligence
lack of
v.
cribed to a
Williams
or his counsel. See
tioner
prose-
1479,
rebuffed at the
420, 432,
“Having been
part.
120 S.Ct.
Taylor, 529 U.S.
attempt to make a
(2000);
request in his
cution’s
see also
The state court did not 2001 WL at *15. The state explore his trial counsel’s reasons —if finding court’s “entirely speculative,” failing he had to interview and —for no basis the record before the state call the witnesses whose names courts. Id. evidence that Rodgon permit ton had him. Nor did it guilt was concerned about by association him to address issue of prejudice, came from a hearing limited that the state required which consideration trial court had conducted on effect testi- [those witnesses’] separate claim mony. regarding Rodgon’s failure *16 Hampton Id.; to have testify. himself see 1518533, judge WL at *13.8 The 4, supra; n. R.48-7 at D32-33. Rodgon’s pointed out that in both Matheney and rationale for not calling Hampton to the States, 592, Bruce v. United 256 F.3d witness stand could not be (7th “transmogri Cir.2001), we had concluded that an explanation fied” into an for his failure to evidentiary hearing necessary was in order conduct an adequate pretrial investigation, to evaluate the ineffectiveness claims as- the district court reasoned. Judge Kennelly serted those cases. WL Moreover, believed that at *15. even if this was true here as well. Testimony appellate from Hampton’s counsel as well court’s characterization of Rod Hampton’s proposed gon’s “strategic” conduct as pre witnesses would were correct, enable adequacy Hampton the court to assess the sumed had succeeded in Rodgon’s representation of Hampton rebutting that presumption clear and Id.; 2254(e)(1). to determine Hampton preju- § whether convincing evidence. see Although analysis point 8. evidentiary hearing the court’s on this fairly in order to resolve alone, Here, was framed in terms of petitioner’s example, claim. for properly focus is on the need to hear him and analysis necessary that whether it is considers the other witnesses has identified Hampton’s testify to hear witnesses or wheth- 2254(e)(2) testify. procedural Section de- failure-to-investigate er his claim be can re- underlying fault rules deal with whether the. affidavits, solely solved on the as the state adequately factual basis for the claim was analysis courts did. This therefore must take developed in state court and whether state only Gregory’s prof- into consideration not procedural rules were followed. The Town- testimony, body fered but the entire of evi- contrast, analysis, by send addresses the need Hampton’s dence relevant to claim. for the federal habeas court to conduct an (7th Cir.1987), 1382, 1389 support the no had rea- Rodgon that found
The court investigate excul that the failure notion eyewitness on the up to follow son ineffective can amount to patory witnesses him had that information 2001 WL of counsel. assistance identify effort his own to make or not Rodgon’s ineffectiveness *17-*18. at Rodgon had witnesses. occurrence other failure to interview limited to his that an stand the witness conceded on had identified that eyewitnesses to call a whether decide attorney cannot make him, included his failure for but co-defendant also a is not witness eyewit own to locate an effort of his witness, that interviewing without first noted that Id. *18. The court nesses. at known factor other external barring some to the paid attention simply if (such felony significant as a attorney co-defendants, lists of witness wit- immateriality or the record one witness found at least he would have from the testimony) that detracts ness’s Hubbard) have exon who could (Gregory testimony. possible of that witness’s value Hampton. Id. erated 1518533, *15. at 2001 WL that district court believed The appel- also viewed district court The for failing to look was also ineffective ei- determination as strategy late court’s that could confirm witnesses who appli- an unreasonable contrary to or ther at *18-*19. gang member. Id. was not a observation cation of Stricklands had written Illinois something less strategic based choices call wit- as a failure to omission off are reason- investigation complete than a might have nesses who testified profes- the extent reasonable able to App.Ct. person.” a “decent Hampton was limits on support judgment sional supplemental 16. But at Order *16; Id. at see Strick- investigation. the affi- petition, along with postconviction Washington, supra, U.S. land v. of that submitted davits Here, 690-91, there 104 S.Ct. such gist clear petition, made any judgment at all on was no evidence simply that testimony was not witnesses’ not the court’s and it was Rodgon’s part, character, but good was of judg- its own fill that void with duty to member. 2001 WL gang not a he was 1518533, *16. ment. 2001 WL Gang at *19. affiliation *17 heavily on relies prosecution the Where of by strong the overtones made relevant might be rebut- testimony that eyewitness observed activity that Powell gang had the district by eyewitnesses, ted marching toward of men he saw group the duty to attorney’s emphasized, the (the chanting of of the theater stage the Id. is critical. investigate such witnesses The un- slogans signals). and hand gang case, Rodgon had cross-examined In this made his Rodgon that promise fulfilled exposed the witnesses and jury the State’s opening statement —that of in- Hampton in their identifications was not weaknesses that hear evidence no effort to deter- gang he made in a Hampton, but volved —revealed of of this issue. Hampton importance had more was aware of mine whether no including Hampton had Id. at *18. Proof than that. Cases Id. defense Smith, 620, tended to 631- would have gang v. 219 F.3d connections Washington (7th testimony part that he was Cir.2000); Washing- v. undercut Williams (7th victims. Id. Cir.1995); ton, group Har- three attacked 59 F.3d (7th much as so Rodgon had never Reed, at *19. Yet 878-79 ris v. of individu- Fairman, for the asked names Cir.1990); and Sullivan als who could attest to his lack of gang the same circumstances as the other two Id. involvement. Hampton. witnesses identified But in case, Martha N.’s the record supplied had The Illinois Court had also challenge basis to her identification —the if Rodgon held that even had rendered written report indicating that Martha N. assistance, Hampton ineffective could not picked had from the line-up someone other prejudiced by demonstrate that he was his than attorney’s Hampton. performance. App.Ct. Notwithstanding Order at testimo- “In light ny of the overwhelming evidence from a detective that the written report ie., guilt, of defendant’s two of the erroneous, victims was jury’s decision acquit security defendant, and a guard identified charge on this suggested to the defendant cannot establish that but for his district court jury had doubts performance defense counsel’s the outcome about the strength of Martha N.’s identifi- of his trial would have been different.” Id. cation. Id. This in turn indicated to the The district court concluded that this one- jury court that if had been rea- disposition sentence of prejudice prong son to doubt the identifications Denise inquiry of the ineffectiveness amounted to guard beyond M. and the arguments about an application unreasonable of Strickland. circumstances under which view,
In the district court’s the State’s assailant, seen the it was reasonably likely against Hampton case was “far from unas- jury’s decision on the other sailable.” 2001 WL at *19. charges might have been different as well. Heinrichs, security guard, conceded Id.
that on night of the attacks he had Rodney Mallory’s acquittal on all only seen the assailant he later identified charges additional, supplied “powerful evi- seconds, as for three or four adequate dence” that an investigation into picked he had not Hampton out of a line- defense pro- witnesses well have up until after he had Hampton’s pic- seen duced a Hampton. different result for Id. ture report. television news Id. Den- Mallory’s attorney put *20. on the ise M. and Martha N. likewise had very type eyewitness testimony that gotten glimpses Hampton brief and had Rodgon had pursue, including failed to been him except unable describe as an Rodney’s Gregory, brother whom police. African-American male for the Id. Hugo eyewitness. M. ton had cited to never identified not- withstanding the fact that Rodney Mallory acquitted he was at Den- Id. notwith- during ise M.’s side the assault. Id. Each standing testimony Denise M. of the witnesses who identified attempted place he had penis her had witnessed the assault “under extreme- mouth and the of Keith Powell *18 ly stressful .,. near-riot conditions.” Id. Rodney among that was the of group indi- at *19. who walked stage viduals the of the toward True, Amphitheatre. security Id. no jury
The fact that the acquitted Hamp- so, guard Rodney. had identified Id. Even attempted rape ton of the of Martha N. the Rodney Mallory favorable outcome for demonstrated the likelihood that the testi- persuaded the district court that it mony was exculpatory of occurrence and other reasonably probable that a defense found- produced witnesses have a different in part upon exculpatory outcome on ed occurrence charges. the other Id. at *20. Martha N. had identified witnesses would Hampton as one have resulted attackers, of her and had done acquittal. so under ton’s Id. testified, have Hampton would had that he found further court
The district at the scene of the presence his present explain to investigate and to Rodgon’s failure out, Rodney but, crime, pointed lack of the court to establish witnesses by dispositive able do so successful- affiliation, although Mallory had been to gang circumstances, to prejudicial” the itself, “highly at *22. Under ly. was also Id. an as- Gang objectively affiliation was unreasonable Id. it Hampton. the court found that tended case abandon the prosecution’s to make then pect for of identification to buttress witnesses’ take the would promise doubt Sowing about Id. Hampton. con- Appellate Court’s Id. “The stand. partici- have Hampton would notion conclusion, finding that on a trary based activity thus would gang-related pated record, any support was without question to jury reason given have of application Strickland.” an unreasonable Id. Hampton. of identification promise, fulfill the Rodgon’s failure to Id. on, preju- was also court went the district he keep promise failure to Rodgon’s Hampton’s failure Hampton. Id. dicial to during opening made gave rise promised as to to take the stand reinforced the own defense testify his the con- inference what Rodgon’s negative about district court’s conclusion testimony might been. Id. his of ineffective. tent of representation Illinois Appellate say that this alone *21-*22. The court could not Id. at to up failure of the trial. likely Court had chalked affected the outcome strategy driven testify However, in trial change keep to a to the decision prospect over Rodgon’s concern “significantly buttresse[d]” promise App.Ct. 8. guilt by association. Order Rodgon’s conclusion that overall court’s testified, would have ad he Had likely did influence the out- performance at the scene of present that he was mitted Id. come. and left with the crime and that arrived de Hampton was Having concluded that But if in the attacks. implicated others the effective assistance coun prived of Rodgon, worried prospect was what sel, Kennelly granted petition Judge noted, possibility it was a the district court corpus. He for a of habeas ordered writ trial it was apparent before that was as unless, prison Hampton released from whether came to decide when the time thirty days, the announced its within State stand; take the witness Hampton would at *25. The retry Hampton. Id. intent to anything rele no indication that there was appealed, subsequently asked State concern guilt-by-association
vant stay judgment. to its district trial. changed over the course in turn the court order asked Consequently, at *21. 2001 WL time, By this pending appeal. his release believed, it “foolhar the district court twenty Hampton had been incarcerated objectively [Rod unreasonable for dy and time, good credit for years, but even with testi Hampton would gon] promise expect discharged he could not be acknowledged that an fy.” Id. The court January prison prior After made keep promise failure to attorney’s Kennelly equities, Judge weighing the rarely supply will opening in an statement of re stayed judgment the extent Id. for an claim. the basis ineffectiveness *19 State, of the pending appeal, lieving the case, however, nothing In this occurred retry intent to to announce its obligation against Hampton during the case State’s thirty days. Hampton v. Hampton within and cons of that altered the pros (N.D.Ill. Leibach, True, at *3 2001 WL *21-*22. taking the Id. at stand. 2001). (3) Dec.18, claim; was, judge also ineffectiveness there in ordered case, prison from on bond an evidentiary released no need for hear- Hampton’s at *2-*3. pending appeal. ing Id. because there were no factual disputes will- required hearing release conditioned on sister’s resolve. quitclaim deed on ingness to execute her 1. Failure to Submit Affidavit from security.
home as Id: *3. He also re- Gregory Mallory. quired Hampton to “live his sister in home, her restrict his travel to the State of recognized, As the district court section Illinois, make reasonable efforts to seek 2254(e)(2)' bars district court from con employment, and avoid contact with the ducting evidentiary hearing or other victims of the offenses with which he was permitting wise an expansion of the evi charged Although in state court.” Id. dentiary in support record of a habeas subsequently stayed Hampton’s re- claim if petitioner failed to develop the pending appeal, lease United States Su- factual basis for his claim in state court. Stevens, preme Paul Court Justice John In supplemental postconviction petition Justice, acting granted Hamp- as Circuit court, in filed state Hamp application stay, ton’s to vacate that and ton identified the occurrence witnesses subsequently the full Court declined whose allegedly given names 28, 2002, January overturn his order. On Rodgon, he submitted his own affidavit this court ordered released at averring that he supplied Rodgon with such time as the district court’s conditions information, their names and contact on his release were satisfied. he submitted affidavits from two of those witnesses—Williams Garner —which
II. turn confirmed that would have exculpatory testimony Hampton’s on A. be Evidentiary Hearing half. But Hampton did not submit an appeal The State’s initial contentions on Gregory Mallory. affidavit from As we concern the district court’s decision to con- noted, Hampton’s postconviction evidentiary hearing duct an on counsel, Winston, Harold testified at the ineffectiveness claim. The State does court, evidentiary hearing the district quarrel with the lower court’s determina- explained that he and Winston had inter Hampton fairly tion presented his fail- Gregory, Gregory provid viewed ure-to-investigate claim to the state courts. information, helpful Gregory ed but that 2254(b)(1), (c); § Boyko, 259 See F.3d at unwilling sign had been an affidavit reasons, But for 788-89. three the State reflecting that information and that Win contends that the decision to hold a hear- authority to him compel ston lacked the was, ing part that claim either in or in do so. R.59-1 at 54-55. The State con (1) whole, erroneous: did not in failing tends that to tender an affidavit Gregory Mallory submit an from affidavit Gregory Mallory, Hampton failed to supplemental petition of his develop the basis for his ineffectiveness relief, postconviction and to that extent claim. to develop failed the factual basis for his (2) court; claim in entirely briefing state failure It is not clear from the to tender an affidavit from whether the State believes that this omis- court, wholly expansion state which the Illinois forecloses all sion noted, procedural in support Hampton’s amounts to a de- record ineffective- claim, fault that bars federal consideration of the ness or the submission and *20 testimony was Mallory’s proffered gation. affidavit and Gregory’s of consideration that of Gar- materially different from the not assume We shall testimony. alter the Hampton is so did not argue that ner or Williams and only to means State Gregory’s affi- tendering Hampton’s nature of ineffectiveness from basic foreclosed testimony, claim; just as it is otherwise one more iteration of his was and davit affidavits tendered avail- testimony that was exculpatory clear in state court by and Garner investigated from Williams to the defense but able ineffectiveness developed his sense, thus failure to ten- and In that Rodgon. This is consistent that extent. to claim to the state an affidavit from der argu- at oral presentation State’s with the a failure did not constitute arguably court in es- argued, counsel its There ment. for the ineffec- develop the basis to factual failure-to-investigate claim sence, that a section purposes claim for of tiveness defined and is both Hampton’s akin 2254(e)(2) fleshed out with basis was —that witnesses that the particular limited We of Garner and Williams. the affidavits failing with counsel charges his petitioner We point, however. need not resolve words, a failure to In other to contact. Gregory’s omission of may assume affida- by the supported claim investigate Hampton’s postconviction affidavit from (like eyewitnesses exculpatory two vits of preclude present- him from petition might Williams) a claim based on is Garner testimony in affidavit and ing Gregory’s alone; peti- if witnesses those two attribut- court the omission was federal if affidavits presents at a later date tioner diligence Hampton’s able to a lack that counsel eyewitnesses from additional part. contact, inevitably trans- has he failed noted, pe As the district court claim into a new ineffectiveness formed his develop the factual ba titioner’s failure Thus, factual basis. a distinct claim with in state court will of his habeas claim sis view, of those if the affidavits in the State’s in federal expansion of record bar presented were not witnesses additional 2254(e)(2) to a lack only if this failure was due courts, section then the state attribut greater or some fault relying diligence from on of petitioner precludes the court, petitioner himself. Williams in federal because able to the those witnesses 432, 120 inef- basis for the S.Ct. at they represent Taylor, supra, factual U.S. developed Parke, 1488; was never 116 F.3d at supra, claim that Burris v. fectiveness Hanks, also, 258-59; court. e.g., in state Newell v. see Cir.2002). (7th The parse is correct to Whether State simply whether inquiry relevant is thus failure-to-investigate claim and its fac- theoretically have dis could petitioner way in this is a matter on which tual basis while he was still in the evidence covered judgment. essence we reserve forum, whether he made the state but that there were multi- claim is present efforts to locate and appropriate the attacks who could eyewitnesses to ple to the state courts. See that evidence that his counsel him and have exonerated Williams, 120 S.Ct. U.S. of them. In to contact failed in the district 1490. Winston’s claim, presented the affidavits of that (Garner spoken that he had court reveals two of those witnesses information that he had obtained Williams) court, Gregory, postconviction to the state supported Gregory that would have documenting nature of the way end, claim, that, in the but testimony that was available exculpatory R. affidavit. sign Gregory refused pursued this line of investi- had his counsel *21 241 argues that his fail- the Court cited Burris (among 59-1 at 54. other au- thorities) approval. affidavit from ure to submit an Ibid. beyond his
was thus due to circumstances
The
argument misappre-
State’s second
(Gregory’s
cooperate)
refusal
control
inquiry
hends the nature of the
for
called
or
diligence
not to his own lack
2254(e)(2).
by section
The State faults
may
fault
deemed his
some other
Hampton and his counsel for
making
not
responsibility. Notably, the State does not
record in state court as to counsel’s inabil-
with the notion that a
quarrel
witness’s
ity to obtain an
from Gregory.
affidavit
may
an affidavit
excuse
refusal to execute
But
the
fully
when
has not
de-
petitioner
develop
the rec-
petitioner’s
failure
veloped the factual basis for his claim in
prospective
ord as to that witness’s
testi-
court,
state
it is the federal court that
34-39;
mony. See
Br. at
see also
State
must decide whether that omission fore-
Newell,
F.3d at
It makes two
283
closes expansion
pursuant
of the record
First,
suggests
instead.
it
arguments
other
2254(e)(2). To
section
the extent that the
in
it
this court erred
Burris when
court
light
state
record sheds
on whether
develop
held that the failure to
the factual
petitioner
developed
could have
préelude
basis of a claim will
an evidentia-
underlying
facts
his claim
while
2254(e)(2)
ry hearing
only
under section
if
forum,
still in the state
obviously
is
petitioner.
attributable to the
the failure is
Williams,
inquiry.
relevant to this
529
Cf.
view,
In the
the AEDPA bars ex-
State’s
(ref-
437-40,
at
U.S.
S.Ct. at 1491-92
pansion of the record at the federal level
psychiatric
erences to
in
record
state
petitioner
and his counsel
even when
proceedings
peti-
demonstrated that
failing
develop
not
are
to blame
tioner, if diligent, could have located re-
factual
for the claim in
court.
basis
state
port and raised
in
its non-disclosure
state
Second,
argues
Br. at 35.
State
State
proceeding).
habeas
But when the reason
if Hampton attempted
but was unable
record,
is not
from
self-evident
the state
procure
Gregory,
an affidavit from
2254(e)(2)
nothing in
precludes
section
attorney
should
executed
affidavit
from
petitioner
supplying
explanation
to that
presented
effect and
affidavit
when he arrives
federal court. See id.
postconviction
to the state
court. State
440-44,
at 1492-94 (relying
S.Ct.
on
Br. at 2.
Reply
pe-
federal court record to determine that
argument
develop
The
first
is untenable
titioner’s failure to
factual basis
State’s
Supreme
intervening
for two of his claims was not due to lack
Court’s
opinion
diligence
petitioner’s part); Boyko,
Williams.
Court
(remanding
Williams
did
construe
section
Comp. Stat. 5/122-2. claim) no more than note tiveness did investigate and call trial counsel failed to affidavit Hampton’s failure to submit an be testify particular to witness should Mallory. App.Ct. Order at from supported by an affidavit from that wit Enis, missing hint that the 361, gave 6. The court no 194 Ill.2d People ness. 1, (2000), or influenced its reso- affidavit constrained Ill.Dec. 743 N.E.2d cert. denied, any way. The court 150 lution of the claim 533 U.S. S.Ct. 2254(e)(2) explanatory lack such an Although does re- relied on the section quire petitioner explained Gregory’s disregard to have his fail- affidavit as a reason to develop behalf, ure to the factual basis for his claim Hampton’s potential forum, acknowledge in the state we while still explain Hampton’s to to the state failure Hearing Act that the Illinois Post-Conviction affidavit why courts he had not submitted an require Hampton did either to attach to his proce- Gregory might have constituted a records, "affidavits, postconviction petition or barring default the federal courts from dural supporting allegations” other evidence its or testimony. considering Gregory's As we note explain "why attached.” the same are not below, however, Appel- although the Illinois ¶ (Smith-Hurd Ann. Ch. 38 122-2 Ill. Stat. sub- Court noted that had not late Thus, 1990). counsel and his Gregory, it did not an affidavit from mitted explained postconvic- should have to the state missing disposing of rely on the affidavit in that their failure to submit an affi- tion court claim; Hampton’s neither did ineffectiveness Gregory Mallory Greg- davit from was due to rely explanation or on the lack of an it note affidavit, sign just ory’s such an refusal missing affidavit. for the suggests. the State Had the Illinois courts prospective relied on Hubbard as a plenary consideration wit- proceeded ness.10 claim, collectively referring merits of the Hampton claimed his witnesses that Hubbard, however, occupies unique
attorney
investigate
as “these
had failed
place among the witnesses that Rodgon
witnesses,”
drawing any
without
distinc- might
have summoned on
be
Garner,
whose half,
tion between Williams
in that the trial record itself revealed
testimony.
attached to
substance
Hubbard’s
affidavits
been
Mallory,
he testified for Ronald
When
*23
Mallory. App.Ct.
petition,
Gregory
and
only exculpated Mallory
Hubbard
had
circumstances,
at 7. Under these
we
Order
(Tr. 1132, 1145);
Hampton
but also
it was
independent
and
state
adequate
find no
simply
Hampton’s jury
the case
never
procedural ground that forecloses or limits
testimony.
existing
heard this
Given the
Hampton’s ineffective-
our consideration of
testimony,
record of Hubbard’s
there was
See,
Litscher,
e.g.,
claim.
Farmer v.
ness
Hampton
no real need for
to
an
submit
(7th
840,
Cir.2002);
v.
303 F.3d
846
Moore
from
in
affidavit
Hubbard
order to sub
(7th Cir.2002).
771,
Bryant, 295
stantiate the claim that he would have
helpful
People
been a
witness. See
argu
makes a similar
State
Johnson,
176,
288,
183 Ill.2d
233 Ill.Dec.
respect
ment with
to
Hubbard.
(1998) (lack
700 N.E.2d
of affida
among
was not
those that
Hubbard’s name
vit or
postcon-
other evidence not fatal to
Rather,
Hampton
given
Rodgon.
if petitioner’s allegations
viction claim
are
an
the district court cited Hubbard as
clearly supported by
uncontradicted
example
exculpatory
of an
witness whom record),
denied,
cert.
526 U.S.
he
Rodgon would have discovered had
(1999).
1150,
correctly
governing
identifies
rule
B. Merits
applies
unreasonably
but
of
the facts
particular prisoner’s
certainly
a
case
Death
“The Antiterrorism and Effective
‘involving] an
qualify as a decision
unrea
Penalty Act of 1996 modified a federal
clearly
of ...
estab
application
sonable
reviewing
pris
state
habeas court’s role
” Williams,
lished Federal
law.’
529 U.S.
prevent
in order to
fed
applications
oner
407-08, 120
at 1520.
at
S.Ct.
“Unreason
eral habeas ‘retrials’ and to ensure
than
something
able” means
more
“mistak
are
effect to
state-court convictions
Visciotti,
en,”
360,
123
at
however.
S.Ct.
possible
extent
under law.” Bell v.
361; Williams,
410,
at
120
529 U.S.
S.Ct.
Cone,
685, 693,
1843,
122
535 U.S.
S.Ct.
1522; Hardaway
Young,
v.
302 F.3d
at
1849,
(2002), citing
152
914
L.Ed.2d
—
(7th
denied,
757,
Cir.2002), cert.
762
362, 403-04,
Taylor,
v.
529 U.S.
Williams
1802,
U.S. —,
123 S.Ct.
sonable”).
U.S.
76 S.Ct.
uphold
[350
those
task is
“Our
(1955)
158, 164
recognized
].
comport
which
outcomes
reasoning and set
legal
conventions
Strickland,
689,
at
The State to take Notably, some issue no State mounts direct court’s, finding with the district next challenge finding to the district court’s —that *28 Garner, Gregory, lengthy vigorous and Williams each and conduct cross-ex- Rodgon averred that had never contacted aminations of all the State witnesses” without him. having pretrial conducted a more extensive investigation reflected in than the documenta- suggests remaining "Rodgon 14. The State tion case file. State Br. pretrial have been to point, [not] able file numerous 49. This contention misses the howev- research, requiring prepare suggested, motions extensive er. The district court never let held, discovery requests, pretrial hearings Rodgon’s representation conduct alone
249
they are deemed tactical.
simply because
pursue exculpato
to
failure
Rodgon’s
Miller,
458; Crisp,
F.2d at
255 F.3d
743
strategic decis
was not a
eyewitnesses
ry
makes
584. Strickland itself
clear
court observed
district
ion.15 The
than
“strategic choices made after less
Illinois
had
Appellate Court
although the
“
complete investigation
pre-
are reasonable
such,
on
finding ‘rests
it
this
labeled
”
cisely
profes-
to the extent that reasonable
to
consequently was entitled
air’ and
thin
judgments support
the limitations
sional
1518538, at *15
2001 WL
no deference.
690-91,
investigation.”
251
and he was also aware
guilty plea,
ner’s
to a
testimony by
eyewitness
one
wrong;
that the State
proffer
that the
of evidence
not the
perpetrator
crime that
time one of
co-
recited each
is the
eyewitness
by another
person named
guilty expressly impli-
pleaded
defendants
Washing
redundancy. See
of
antithesis
cated
the attacks. Garner
634;
ton,
Montgomery,
F.3d at
to affirm the truth of the
was not asked
585;
415;
F.2d at
Co
Crisp, 743
F.2d at
(neither did he con-
government’s proffer
very
n.
For that
F.2d at 658
sey, 727
Nonetheless,
accuracy).
Garner’s
test its
recognized
reason,
Fifth
has
Circuit
of a
guilty plea
proffer
the face
eyewit
to interview
failure
“[t]he
implicated
both
as well
expressly
strongly support
may
a crime
nesses to
obviously
utility
diminished his
as himself
of counsel.”
assistance
claim of ineffective
degree. But
as a defense witness to some
(5th
Scott,
1411, 1415
F.3d
Bryant (without
Bryant,
essary to look
concert;
as reason
the
so were thousands of other
be described
cannot
witnesses
people. Attending
rhythm
219
and blues
Washington,
F.3d
632
able. See
alia,
failure,
(trial
suggestive
concert is neither a crime nor
inter
to ascer
counsel’s
crime;
participation
of
in a
fact
the
exculpatory evidence defen
tain what
that a horrible assault occurred at the
might have was
“fla
dant’s witnesses
pall
suspicion
concert does not cast a
of
ineffectiveness”);
grant
example[
of
]
(9th upon everyone
Further-
who attended.
Wood,
Lord v.
more, only
eye-
Cir.1999)
one of the four favorable
(counsel cannot assess credibili
has
witnesses
identified—
ty
prospective
of
witness
and demeanor
attacks,
in
implicated
Garner —was
the
eye
“looking him the
and hear
without
Rodgon
we have assumed that
had a valid
denied,
story”),
ing him
his
cert.
tell
him.
reason
contact
The other
1262, 146 L.Ed.2d
U.S.
120 S.Ct.
Williams, Gregory Mallory, and
(2000). Notably, Rodgon himself of
three —
simply bystanders
Hubbard —were
to the
failure;
strategic
no
reason
fered
assaults, and so would not
fostered
have
having any leads on
simply
denied
the notion that
was linked to the
explanation
such
the dis
witnesses —an
by
perpetrators
testifying
his behalf.
trict court found incredible.
2001 WL
Even
the extent that
these witnesses
1518533,at *7-*8.
they, along
would have testified that
with
Illinois
The
also
Hampton, had attended and left the con-
thought
testimony
exculpatory
from
company
cert in the
of other individuals
eyewitnesses
posed
problem
(which
perpetrators
who were
is not sur-
association,”
“guilt by
and for that rea-
prising given
all
lived
son it was reasonable for
not to
neighborhood), they
same
were no differ-
App.Ct.
contact such witnesses.
Order at
Powell,
respect
ent
from
the State’s
Testimony
eyewitnesses,
7.
from other
witness,
own
who knew and rode home on
explained,
“only
would have
serve[d]
the bus with the
brag-
individuals he heard
to emphasize the fact that defendant went
ging about the attacks.
perpetrators,
concert
reasons,
For these
we sustain the dis-
assault,
present during the
and left with
trict court’s determination that Rodgon’s
perpetrators.”
Id. The State sounds
investigate exculpatory eyewit-
failure to
the same theme
its briefs. “Petitioner’s
objectively
nesses was
unreasonable.
potential
place
witnesses all would
him at
readily
Such
were
witnesses
available
crime,”
empha-
scene
the State
Rodgon,
testimony
witnesses,
of those
Reply
sizes.
Br.
at 14. “The
believed,
if
given
would alone have
Williams, Mallory and Garner would have
jury
acquit
a reason to
Hampton, and Rod-
the fact that
reinforce[d]
Petitioner was [at
gon
legitimate
strategic
no
reason not
away
concert]
would have taken
pursue
such witnesses.
Rodgon’s
strategy to distance Peti-
tioner from the taint of association and
agree
We further
with the district
vigorously pursue a misidentification theo-
prejudiced
court that
ry.”
Br.
State
attorney’s ineffectiveness.
In explaining
“guilt by
why
association” concern is
was unreasonable for
not to
however,
altogether a
herring,
exculpatory eyewitnesses,
red
look for
we have
the context in which the
already highlighted
attacks occurred.
several of the circum
any dispute,
jury
There was never
and the
stances that
prejudice,
establish
so we will
Nonetheless,
respect.
in this
bela-
inaccurate
again here with
them
briefly recite
that Martha
report
stood as evidence
evidence
physical
no
them. With
boring
N.,
initially, had identified some-
at least
case
prosecution’s
Hampton,
against
person
as the
one other than
entirely on wit-
depended
him
against
*32
jury’s
attempted
rape
to
her. The
de-
who
him
that
saw
testified
nesses who
acquit Hampton
charge,
to
on that
cision
Those wit-
in
attacks.
the
participate
others, suggests
report
that
the
but not
they identified as
assailant
saw the
nesses
reliability of
gave it reason to doubt the
and under difficult
only briefly
Hampton
in
it
way
N.’s identification
that
Martha
circumstances, rendering their identifica-
against
the other witnesses
did not doubt
challenge.
vulnerable to
Hampton
tions of
Second,
Mallory
Ronald
ulti-
Hampton.16
effectively identified
although
And
charges.
of all
Re-
mately
acquitted
was
vulnerabilities,
no testi-
presented
these
Mallory
call that Denise M. had identified
prosecu-
the
affirmatively counter
mony to
attempted
place
men who
to
as one of the
i.e.,
eyewitnesses
tion’s witnesses —
defense,
In his
penis
in her mouth.
did
Hampton
that
would have testified
who
Mallory
par-
had testified that he did not
See, e.g.,
attacks.
the
participate
not
attack,
and he called three
ticipate
the
1042-43; Cosey, 727
125 F.3d at
Wright,
witnesses who said the same
additional
n.
F.2d at 658 3.
(a
confirmed that he
thing
fourth witness
eyewitness
that
central role
Given the
member). Mallory’s ac-
gang
was not
case,
vulnera-
in this
testimony played
importance
of ex-
quittal demonstrates
eye-
testimony of the State’s
in the
bilities
testimony
sug-
and
culpatory eyewitness
witnesses,
shortcomings
human
and the
jury
have
Hampton’s
that
gests
eye-
frequently render
perception that so
testimony.
rec-
swayed by such
We
been
testimony less rehable than
witness
Mallory
against
that the case
ognize
evidence,
Wright, 125 F.3d
types of
see
strong
against
as the case
not as
cases),
more
(collecting
we are
1043 n.
ton,
person—
one
the sense
investigate
that the failure
than satisfied
M.—identified him as an assailant.
Denise
likely affected
exculpatory eyewitnesses
against Hampton
case
But the State’s
eye-
trial. The
outcome of
one
different from the
qualitatively
not
identified,
has
Hampton
witnesses
M.,
and Denise
who was
against Mallory;
court found
testimony the district
whose
accusers, testified
one of
also
credible,
jury
pow-
have
the men
that was
on cross-examination
Hampton’s culpabili-
erful reason to doubt
in her
put
penises
their
attempted
ty-
Mallory)
faces
(including
on whose
mouth
lend
attacks.
separate acquittals
during
Two
she had concentrated
First,
jury
Mallory’s case
acquitted
substantively
made
this notion.
What
(self-serving)
Martha
testi-
attempted rape
beyond
his own
unique,
in the
participate
to a written re-
he did not
according
mony
N. Recall
attacks,
eyewitness
exculpatory
N. had
line-up that Martha
port of a
That
Mallory presented.
viewed,
testimony
rath-
picked Ezra Garner
she had
virtually identical
testimony was
as her assailant. Detec-
er than
testimony on which
report
eyewitness
tive Ptak had characterized
per-
obviously
Although
did
during
the deadlock
point
delibera-
that at one
16. Recall
sist,
the case
tions,
the notion
Judge Strayhorn
it undercuts
jury
sent a note
overwhelming in all
against Hampton was
deadlocked on four of
indicating that it was
respects.
Hampton. R. 62 at 189.
charges against
claim,
racity
exculpatory
eyewit-
ineffectiveness
and Mallo-
value of the
bases his
Moreover,
evidently
found that
nesses
has identified.
ry’s jury
sufficiently persuasive
Gregory Mallory
to doubt his accus-
the State asserts that
proved
a poor
er.17
himself to be
witness: as we
noted,
previously
did
latches onto a number of
The State
exactly
recall
during
where he sat
omissions,
biases,
potential
and inconsis
concert,
did not remember that
among
tencies in and
the testimonies and
along
Gregory’s
was tried
brother
Garner, Gregory,
affidavits
Ronald and that the case was tried before
Williams, and contends that
in view of
juries,
three
and could not
cer-
remember
vulnerabilities,
these
the district court was
*33
tain representations he had made in his
wrong
testimony likely
to believe that their
affidavit; he also answered a number of
any
had
impact
would have
real
on the
questions
him
posed to
with answers
notes,
Hampton’s
outcome of
trial.
It
“Okay.”
like “I don’t know” and
Garner,
example,
Gregory,
and
long-time
Williams were all
A
friends
number of these asserted weaknesses
who,
Hampton’s
Hampton,
pres
like
were
by
are unremarkable.
It is
no means sur
crime;
Garner,
ent at the scene of the
prising
and
that the witnesses who would have
us, pleaded guilty
it reminds
to participat
exonerated
were his friends—
in
ing
Montgomery,
they
the attacks.
people
sitting
were the
he was
with at
Cf.
(stressing
concert,
F.2d at 414
importance of inde
they
and as such
were in a
witnesses);
pendent
Crisp,
257
(7th
States,
658,
Cir.2002);
287 F.3d
662
vulnerabilities
given the
witnesses,
Schomig, supra,
in Foster v.
223
would have
F.3d
of the State’s
acquittal.
Rodgon promised
jury
See But
it
the odds of
creased
Smith,
219 F.3d at would hear from
and that
supra,
v.
Washington
634;
125 F.3d would also hear evidence that he had no
Gramley, supra,
v.
Wright
involvement,
gang
reneged
out
Rodgon’s failure to seek
on his
at 1042-43.
readily
promises
explaining
jury
who were
without
exculpatory eyewitnesses
fairly
why
be described
he did so. Turnabouts of this sort
to him cannot
available
may
justified
“unexpected
can the
be
when
devel
a reasonable decision. Nor
as
changes
...
...
opments
previ
a different outcome had Rod
warrant
possibility of
ously
strategies.”
line of defense reason
announced trial
Ouber
gon pursued this
(1st Cir.2002)
Guarino,
19,
negli
no better than
v.
293 F.3d
29
ably
quantified
be
Brown,
Miller,
593,
(citing
at 459. The
Dutton v.
812 F.2d
598
gible.
255 F.3d
See
(10th
denied,
Cir.),
836,
cert.
application
court’s
of Strickland
484 U.S.
108
state
unreasonable,
(1987));
also,
is
S.Ct.
98 L.Ed.2d
see
therefore
Clark,
(7th
Drake v.
e.g.,
to relief.
F.3d
entitled
Cir.1994). However, when the failure to
to Fulfill Promises Made
2. Failure
present
promised testimony
cannot be
Opening Statement
events,
up
chalked
to unforeseeable
attorney’s
promise may
broken
be unrea
statement, Rodgon
opening
In his
s onable,
damaging
for “little is more
than
that form the
representations
made two
produce important
to fail to
evidence that
Hampton’s second claim of inef
basis for
promised
opening.”
in an
been
jury
He
first
promised
fectiveness.
(1st
Butler,
Anderson v.
testify
you
and tell
that “Mr.
will
Smith,
Cir.1988);
Washington
also
see
Mr.
that he was at the concert.
(failure
supra,
produce
Hampton
take
testimony
ignore
present
the failure to
suggests
anything
the record
that
material
with a
that
was not involved
Hampton’s worth as a witness remained
appellate
that the state
gang,
made that
an omission
Rodgon
a secret until after
8)
Ouber,
(App.Ct.
noted
Order at
but did
promise.
ises he AFFIRMED that prejudicial not so MANION, Judge, dissenting. itself, Circuit the breach serves in and of relief important failure to more the underscore Hampton Twenty-one years ago Patrick occurrence wit exculpatory investigate began sixty-year to serve a sentence Rodgon exploited what Although nesses. assault, attempted rape and deviate sexual case, in the State’s there were weaknesses trial, prosecu- crimes. At his the related affirmative evidence he elicited no testimony of two of the presented tion the in the attacks. Hampton participate did not M., victims, Martha N. and Denise three question how jury reason clearly implicated identified and who witnesses had of a look the State’s good In in the crimes. addi- brutal they identified as assailant gotten of the tion, the testi- prosecution presented no evi presented but was Hampton, concert, mony security guard of a at the Hampton. dence that the assailant was as unequivocally who identified more, promised jury is actively participating What person he saw Hampton testify to his Despite that it would hear M. the sexual assault of Denise innocence, evidence, to deliver on pri- and then failed the court has held that jury attorney promise. promised marily He because failed of friends it would hear evidence that to interview several concert, possibly any gang, not involved in and then failed who were also present testimony, representation his promise as well. Those their deliver on constitutionally at trial was supplied the of promises broken themselves However, if even we assume that there was deficient. jury with reason to believe case, Hampton’s attorney per- could have contradicting no evidence the State’s service, of formed better because validity Hamp of and thus to doubt . strong Hampton’s guilt of it is Harris, evidence ton’s See 894 F.2d at defense reasonably probable that the outcome
of the trial would have been different. Therefore, because Illinois III. reasonably federal applied relevant case, respectfully law to the facts of this I identified, we have we For the reasons and would reverse the district dissent deprived of the conclude grant corpus. court’s of habeas counsel, in vio- effective assistance of trial lation of the Sixth and Fourteenth Amend- In order to on a claim of ineffec- succeed ments to the The Illinois counsel, Constitution. petitioner is tive assistance contrary conclusion was Appellate Court’s that his counsel’s required demonstrate application unreasonable result an objective fell standard of conduct below principles identified in Strickland v. prejudiced and that he was reasonableness Washington. After careful review of performance. sub-standard record, Washington, we are left with definite Strickland v. U.S. (1984). firm conviction that the result of 104 S.Ct. 80 L.Ed.2d inquiry trial is not therefore looks at prejudice ton’s reliable. We Strickland’s handled “counsel’s errors were so serious agree judge, with the district whether trial, a deprive the defendant of a fair thoroughness, this case with commendable *39 Strickland, statement, opening similarly is trial whose result reliable.” does not rise 687, 104 2052. This prejudice 466 U.S. at S.Ct. the level of under Strickland. the defendant to show “a reason- requires testimony does not hold that the that, un- probability but for counsel’s able have would delivered his errors, pro- the result of the professional swayed defense could have jury, but have been different.” Id. at ceeding would instead holds that Rodgon should have ex- A proba- reasonable S.Ct. why plained testify. his client did not But Strickland, bility, under “is one sufficient any explanation could complicated be to undermine confidence the outcome of risky, simply have underscored Additionally, the trial.” Id. under the fact that testify. he did not The court AEDPA, a court must con- federal habeas also does not mention that did not sider the state court’s decision whether present need to Hampton’s evidence as to objectively applica- was an unreasonable affiliation, gang despite promise his his regarding prejudice tion of Strickland statement, opening because the State did Davis, prong. Roche v. 291 F.3d present any regard evidence with (7th Cir.2002). Here, Hampton cannot Hampton’s gang affiliation. Without such requirements meet the Strickland for evidence, Rodgon anything did not have demonstrating prejudice and therefore the fact, In rebut. without the State’s evi- application Illinois state court’s of those dence, potentially it would have been dam- requirements was not unreasonable. aging for to broach the issue of Hampton’s possible gang affiliation.
Although Hampton’s attorney Rodgon investigate three Hampton’s failed to may friends who have testified that I crime, participate ton did not in the Therefore, questionable because of the necessarily preju- does not demonstrate prejudice by Rodgon’s alleged caused er- if dice. Even we assume that all three rors and strong guilt, evidence of his trial,
witnesses would have testified at it is Hampton has failed to demonstrate a rea- likely testimony their would have that, probability sonable but for counsel’s conflicting, been as demonstrated their errors, unprofessional the result of his trial affidavits, conflicting and could have been have been different. These defi- more of a than a help. hindrance similarly preclude finding ciencies Additionally, the court relies on the fact the Illinois dismissal of Court’s that because one of codefen- Hampton’s claims of ineffective assistance dants, Mallory, acquitted, Ronald objectively of counsel was an unreasonable investigation demonstrates further would, I application of Strickland. there- may produced into defense witnesses fore, reverse and remand to the district Hampton. a different result for Such reli- deny petition court with instructions to misplaced. Mallory only ance is Ronald corpus, respectfully and I dis- habeas had to contend with the identification of sent. victim, one whereas three individuals —the security guard two victims and one —clear-
ly concisely Hampton. identified
Finally, attorney’s present his failure to jury own or lack affilia- present gang evidence of his tion, promising after to do both notes jury sent four when courtroom in the present was not arrived jury had that the these indicated testified. Mallory’s witnesses charges to five of nine as at a verdict as to was deadlocked Hampton limited but against case was defense at 189. R. 62 Cegielski charges. Craig four other Detective one witness. Hampton of had Powell, knowledge, jury acquitted Ultimately, to his testified (R. 62 at R. N. line-up. of a of rape out Martha Hampton attempted picked never 193) deviate sexual him of convicted but 48-3 at Denise, ag- rape of assault, attempted statement, at- opening In his (R. at robbery battery, and gravated first, promises: two torney, Rodgon, made all 194-201). on convicted Knight was was testify that he would of certain Mallory acquitted charges. had seen what the concert at present as mistrial granted a charges participated not but had happened jury his as to which remaining charges, second, that (R. 543), and 48-2 attack acquit- He was a verdict. could not render show evidence at a second charges remaining ted of, involved nor a member was neither trial. 544). (id. prom- Neither with, any gang testify, did kept. ise was ordered Judge Strayhorn that he no jury evidence and his heard R. 62 sixty years. term of prison serve a gang. involvement lacked The most 214; at 58. serious R. 48-6 assault, was offenses, deviate sexual his clos- sounded in The theme that by a maximum normally punishable he one that focused argument ing However, that maximum thirty years. trial —the throughout exclusively finding upon a sixty years doubled against case government’s weakness by ex- accompanied the assault was Pow- challenged both Hampton. Rodgon in- behavior or heinous ceptionally brutal Heinrichs’: credibility and ell’s Stray- cruelty. Judge of wanton dicative to have identi- claimed that Powell noted of a Hampton’s use determined horn line-up but that fied metM. object to Denise foreign assault so; and had not done revealed evidence He remarked: condition. law Heinrichs, position despite ag[g]rievously the most probably It is officer, forward come enforcement
Notes
notes no file contained Rodgon’s case had he attend- Rodgon that told Hampton potential wit- flecting interviews with Garner, Clin- Ronnie the concert with ed that such notes nesses, although he agreed Mallory, and Williams, Gregory and ton 95-99, at file. Id. have been not he verify that three could that all 151-52. he and that was attacks in the involved Attorney Illinois letter three In a 1987 All at Id. 13-14. member. gang Disciplinary Commission and Hampton, Registration building same lived in complaint (“ARDC”) responding at together. Id. up they grown had and performance, about filed Hampton had their contact Rodgon gave Hampton 14. speak he did that indicated Rodgon out had pointed He also Id. information. witnesses. possible about Rodgon Mallory to with and Williams [Hampton] talk proceedings trial I did Prior to subsequent court at may may or assumed concerning 16. Id. witnesses at attended. I and call As recall them behalf. contact called on his Rodgon would not be with 17. that he was at time testify trial. Id. me at that at he told them to Amphitheatre case defense he had left Rodgon rested the who people When witnesses, Hampton people of these a bus. Most calling these on with without with charged and and done so why he had not arrested him were later asked I did worry guilty. plead[ed] not to about him Rodgon told the crime put me to for appropriate Id. at 18. not think matter. guilty plead[ed] had witnesses believed that he testified Rodgon Mr. they were with say crime was weak: against Hampton case State’s did not that he the time but Hampton at implicating evidence physical no there was in the crime. participate attacks; purely it was in the asked Ex. ID 3. When R. 58 Petitioner’s Hamp at 89. R. 59-1 case. identification evidentiary hearing, the letter about any him information given had not ton still maintained witnesses, Rodgon defense potential about oc- potential him names interviewed Rodgon had not that reason Hampton done Had witnesses. Rod currence Id. at 99-100. individuals. such sent testified, he would so, Rodgon in the Rob lived gon knew R. 59-1 them. speak someone that “numerous Taylor Homes ert explained simply occasions on those three-min- or other two- Hampton did have day or court that occurred in peri- to him what during meetings with ute next court happen at the expected to adjacent to what holding cell in the court or od-—in at 11. R. 59-1 but, Hampton, date. according to the courtroom —