Mahaffey, Reginald v. Schomig, James ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4271
REGINALD MAHAFFEY,
Petitioner-Appellant,
v.
JAMES SCHOMIG,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 3677—James F. Holderman, Judge.
____________
ARGUED APRIL 24, 2002—DECIDED JUNE 27, 2002
____________
Before FLAUM, Chief Judge, and POSNER and EVANS,
Circuit Judges.
EVANS, Circuit Judge. In this double homicide case,
which started during the first term of the Reagan admin-
istration, two separate juries found Reginald Mahaffey
guilty. After the convictions, two separate sentencing hear-
ings ended in jury findings that Mahaffey was eligible for
the death penalty and that no mitigating circumstances
sufficient to preclude the imposition of the ultimate pen-
alty were present. And so, Mahaffey received a sentence of
death. Twice.
In July of 2001, after 18 years of litigation in state court,
and the exhaustion of all remedies there, the case moved to
federal court with Mahaffey’s filing of a petition for a writ
of habeas corpus. Later in 2001, the United States District
2 No. 01-4271
Court for the Northern District of Illinois denied the pe-
tition, a decision we review today on Mahaffey’s appeal.
Mahaffey was convicted after his second state trial in
1991 of the murders of Dean and Jo Ellen Pueschel, the at-
tempted murder of their young son Ricky, the rape of Jo
Ellen, home invasion, armed robbery, aggravated battery
to a child, residential burglary, and theft. In addition to
the death penalty, several prison terms on the noncapital
charges were also imposed. We start our review with some,
but by no means all, of the facts.
On a hot August night in 1983, 11-year-old Ricky
Pueschel was sleeping in the bedroom of his Northside Chi-
cago apartment when he was awakened by a stranger hold-
ing him in a headlock. He tried to scream, but a hand was
over his nose and mouth. Two voices told him to be quiet.
Ricky blacked out. After regaining consciousness he went
to the kitchen where he saw a man holding his mother
and another man coming through the back door. The
men ordered Ricky and his mother to lie on their stomachs
on the dining room floor. One of the men then began strik-
ing Ricky’s mother with an object. She was crying, and she
told Ricky to listen to the men and to do as they said.
The next thing Ricky knew, he woke up in his bed in a
puddle of blood. He went to his parents’ bedroom, where
he found his father sprawled out against one of the walls
with blood nearby. In the dining room he found his mother
lying on the floor with her head in a pool of blood. She
had no heartbeat. The phone was ringing, but Ricky could
not answer it because someone had ripped off the receiver
cord. He went outside, where he encountered his grandfa-
ther, Joseph Heinrich, who had come over because he was
expecting Jo Ellen to bring Ricky to his house that morning.
When she failed to arrive, Heinrich phoned the Pueschels’
residence but got no answer. He then went over to the
Pueschels’ residence, where he found Ricky walking around
outside. He was covered with blood. Ricky told him that his
parents were dead.
No. 01-4271 3
Paramedics arrived and took Ricky to the hospital, where
he remained for a week. His left eye was swollen shut, and
he had a fractured skull, multiple stab wounds to the back,
and a life-threatening brain hemorrhage. When police ar-
rived at the Pueschels’ apartment they discovered two
of Ricky’s baseball bats covered with blood. They also
found an empty gun holster and an empty gun rack near
Dean’s body.
A few days after these horrific crimes, Cedric Mahaffey
told police that two of his brothers, Reginald and Jerry,
were involved in the Pueschel break-in. After questioning
Cedric, the officers went to the apartment where Reginald
Mahaffey was staying. Morriell Redmond, who was leas-
ing the apartment from his grandmother and renting a
room in it to Mahaffey, answered the door. The officers
asked if Mahaffey was in the apartment. After Redmond
gave permission to search the apartment, Mahaffey was
discovered lying on the floor in one of the bedrooms. He
was arrested. And one of the first things he said was that
he knew the police were “coming after” him and that he
was “going to get caught.” He went on to provide details of
the events that occurred in the Pueschel residence a few
days earlier.
The police searched the Redmond-Mahaffey apartment
and found 24 pieces of jewelry, all later identified as be-
longing to either Dean, Jo Ellen, or Ricky Pueschel. Po-
lice also recovered bullets and shotgun shells matching
guns stolen from the Pueschels’ apartment. Mahaffey told
the police that they had recovered most of what he and
his brother Jerry had taken, although Jerry still had the
Pueschels’ VCR, Atari game, and some videocassettes.
Mahaffey and the officers then went to the home of Roo-
sevelt Mahaffey (the record does not tell us his relation-
ship to Reginald, but it seems likely he is another broth-
er), who signed a consent-to-search form. The officers
4 No. 01-4271
found a rifle and a portable television that belonged to
the Pueschels. The officers then went to Jerry Mahaffey’s
apartment and arrested him. During a search of his apart-
ment they recovered a video recorder, electronic TV games,
an Atari game, and some videocassettes belonging to the
Pueschels, including a video of their wedding.
The officers took Reginald Mahaffey to the police station,
where all the recovered proceeds were placed on a table.
Mahaffey removed a white metal ring with a blue stone in
the center from his left hand. From his pants pocket he
removed a man’s Seiko watch and a gold chain with a
crucifix on it. These items were all taken from the Pueschel
apartment.
An assistant state’s attorney, Irving Miller, met with
Mahaffey at the police station. He advised Mahaffey of
his Miranda rights, and Mahaffey confessed again. He
admitted that he raped Jo Ellen. He also stated that he
had no complaints about the way the police had treated
him. In fact, Miller said Mahaffey told him the police
treated him “very fine.” After being advised of his rights
a second time, Mahaffey gave a 23-page statement detail-
ing the break-in at the Pueschel residence. After reviewing
the written statement, he initialed and signed it.
In the formal statement, Mahaffey said he and his broth-
er Jerry had planned to burglarize a clothing store on
the north side of Chicago but that their van broke down on
the way. While walking away from the van, they noticed
that one of the apartments in a nearby building had an
open window. Reginald said they removed the screen and
entered the apartment. Before exploring the rest of the
apartment, the Mahaffeys drank some Kool-Aid from the
refrigerator and took some money, about $11, from a wallet
that was sitting on the kitchen table. Reginald then picked
up a butcher knife and the brothers entered Ricky’s room.
Reginald put a pillow over Ricky’s head, telling him not
to make any noise. Reginald then began choking Ricky
No. 01-4271 5
while Jerry held his mouth. Ricky struggled and tried to
call for help. Reginald directed Jerry to stab the boy,
which he did. Then Reginald discovered a basket of bats
in Ricky’s room, and Jerry used one of them to hit Ricky.
Reginald picked up another bat, and he and Jerry went
into Dean and Jo Ellen’s bedroom, where they stood on
either side of the bed. Simultaneously, they began hitting
Dean in the head with the bats. Jo Ellen awoke while Jer-
ry was still beating Dean, and Reginald told her to be
quiet and that she would be all right. Reginald then took
her into the kitchen where he began to rape her, finishing
the act over the arm of a couch in the living room. While
Reginald was raping Jo Ellen, Jerry came out of the bed-
room with Dean’s .357 magnum. According to Reginald,
Jerry then addressed Jo Ellen, saying, “Listen, bitch, some-
body told us you got a lot of pistols,” and he demanded to
know where they were.
After Jo Ellen was raped, Reginald returned to the bed-
room where Dean was lying on the floor. He took some
jewelry and a T-shirt. He then returned to the living room
where he said Jerry “was having sex with her [Jo Ellen]
in the mouth.” Reginald told her that everything would
be all right if she cooperated. Jo Ellen told Reginald that
Jerry was being “rough with her” and Reginald said, “Just
go along because [you] really ain’t got no choice.”
Reginald then asked Jo Ellen where she kept her car
keys. She handed over the keys and warned him that the
car was alarmed. She then put on a trench coat, went out-
side, and deactivated the alarm. Reginald packed the TV,
tape player, arcade game, and some tapes and put them
in a box with some jewelry, a rifle, a shotgun, and the .357
magnum. The Mahaffeys also took several boxes of shotgun
shells and bullets.
Reginald loaded the stolen goods into the car, then re-
turned to the apartment, where he hit Jo Ellen in the head
6 No. 01-4271
with the .357. He told her to lie down. He then hit her in
the head a few more times with the pistol while Ricky
was lying on the ground next to her. As he was leaving the
house, he again told Jo Ellen that she was going to be
all right. Jerry then told Reginald that they had to “kill
this bitch, too.” Reginald said, “I know man. Don’t make
her panic.” As Reginald was leaving, he heard “solid hits,”
which told him that Jerry was “finishing the lady and her
son off with the bats . . . .” Reginald also told Jerry to
stab the “little boy.”
After the crimes, the Mahaffeys left and drove to 3534
West 13th Place, where Reginald was staying. They car-
ried the stolen goods into his apartment. To get rid of the
car, they drove it to the housing projects on West Lake
Street and left it in a back parking lot, hoping that some-
one would steal it so that any fingerprints left behind
would be “no good.” Then they took a bus back to 13th
Place. A few days later, Reginald and Jerry moved some of
the stolen goods to their brother’s house, then divided up
the remaining goods. During questioning, the assistant
state’s attorney showed Reginald a photo of Jo Ellen, Dean,
and Ricky, and Reginald stated, “Those are my victims.”
During his hospital stay, Ricky was transported by am-
bulance to a police station to view a lineup, although,
according to his doctor, the boy had not recovered from
his head injury “by any means.” At the lineup Ricky was
unable to identify Mahaffey. At the trial, however, Ricky
had recovered from the head injury. In his testimony,
he said he was “99 percent sure” that Reginald Mahaffey
was one of his parents’ murderers.
Pam Fish, a forensic scientist in the serology unit of the
Chicago Police Department crime lab, ran tests on the
bloody bats, blood taken from the victims’ bodies, and a
vaginal swab taken from Jo Ellen. One of the bats was
covered with Jo Ellen’s blood type and the other was cov-
No. 01-4271 7
ered with Dean’s. The vaginal swab tested positive for
the presence of sperm. Mahaffey is a nonsecretor, which
means that his semen does not secrete his blood type. Fish
could not determine the blood type from the vaginal swab
because it did not reveal the presence of activity for any
blood type.
At his first trial in 1984, where Reginald and Jerry were
joined as codefendants, Mahaffey’s counsel moved to sup-
press the physical evidence obtained in the searches and
the many incriminating statements given by Mahaffey,
contending that the police failed to give Miranda warn-
ings and beat him at his apartment and later at the police
station. At a hearing on the motions, several officers testi-
fied that they read Mahaffey his Miranda warnings and
that he was not beaten into confessing. Miller, the assis-
tant state’s attorney who took Mahaffey’s formal confes-
sion, said that he didn’t see anyone hit Mahaffey and that
he observed no physical evidence of a beating. Miller also
testified that Mahaffey told him that he was not mistreated
while in police custody. The motions to suppress were de-
nied and Mahaffey was convicted of various charges arising
from the break-in. As we said, he was sentenced to death.
Ditto for Jerry.
Mahaffey was granted a new trial based on his claim that
he should not have been tried jointly with his brother.
People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.2d 1172 (1989).
Both Jerry and Reginald gave confessions that were ad-
mitted into evidence. Because Reginald testified (and thus
was subject to cross-examination), and Jerry did not, only
Reginald received a second trial. Jerry, however, did get
lucky in federal court where, on his petition for a writ of
habeas corpus, a split panel of this court found that he
made out a prima facie showing of a violation of the rule
in Batson v. Kentucky, 476 U.S. 79 (1986). See Mahaffey v.
Page, 162 F.3d 481 (7th Cir. 1998). That result was quite
unusual because the court, by a 2-1 vote (Judges Flaum
8 No. 01-4271
and Cummings in the majority and Judge Rovner dis-
senting), initially denied relief. See our vacated opinion,
Mahaffey v. Page, 151 F.3d 671 (1998). That result changed
when the late Judge Cummings switched sides and joined
Judge Rovner on rehearing. That course of events drew a
dissent from Judge (now Chief Judge) Flaum.
Reginald Mahaffey moved to represent himself at his
second state trial, and the court found, after extensive ad-
monishments and questioning, that he knowingly waived
his right to counsel. Although Mahaffey’s wish to represent
himself was honored, the judge directed that an assis-
tant public defender sit with Mahaffey as a “legal advisor”
during the trial. The trial proceeded, Mahaffey did not
renew the motions to suppress evidence and statements,
and the second trial ended with another conviction. The
judge again advised Mahaffey of his right to counsel at
the sentencing hearing, which Mahaffey again waived.
Whereupon, the public defender “advisor” requested a com-
petency exam, which the judge granted over the state’s ob-
jections. The examination, performed by Dr. Robert Reif-
man, the head of the Cook County Psychiatric Institute,
resulted in a finding that Mahaffey was fit to proceed.
Dr. Reifman testified again during the penalty hear-
ing, stating that Mahaffey had a mixed personality disor-
der, was antisocial, narcissistic, passive-aggressive, imma-
ture, and impulsive, but not psychotic or suffering from a
mental disease. The prosecution then presented several
witnesses in aggravation who testified to Mahaffey’s pri-
or criminal acts, including a robbery and two burglaries.
It also presented evidence regarding Mahaffey’s unsuc-
cessful attempt to escape from the Cook County Depart-
ment of Corrections. Mahaffey presented no evidence in
mitigation. The jury found that there were no mitigating
circumstances sufficient to preclude a sentence of death,
and that was part of the penalty ultimately imposed.
Mahaffey’s direct appeal from his second conviction was
No. 01-4271 9
rejected by the Supreme Court of Illinois. People v.
Mahaffey, 166 Ill. 2d 1, 651 N.E.2d 1055 (1995). Five years
later, the highest court of Illinois rejected a petition for
collateral relief under the Illinois Post-Conviction Hear-
ing Act, 725 ILCS 5/122-1 et seq. People v. Mahaffey, 194 Ill.
2d 154, 742 N.E.2d 251 (2000). The Supreme Court of
Illinois held that almost all the issues raised on the collat-
eral review were procedurally defaulted because they were
not presented on the earlier direct appeal and that they
were unpersuasive, in any event, if considered on the
merits. As we said, the federal district court then denied
Mahaffey’s petition for federal habeas relief, which brings
us to today.
A federal court may grant a writ of habeas corpus to a
prisoner held under a state court judgment only if his cus-
tody violates the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 2254(a). We review de novo the
state court’s legal determinations, as well as mixed ques-
tions of law and fact. See Hall v. Washington, 106 F.3d
742, 758 (7th Cir. 1997). Errors of state law are irrelevant
unless they resulted in the deprivation of a constitutional
or federal right. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); Gonzalez v. DeTella, 127 F.3d 619, 621 (7th Cir.
1997).
Before a federal court will consider a habeas petition, a
petitioner must satisfy several procedural requirements.
First, a petitioner must exhaust state remedies—that is,
give the state’s highest court an opportunity to address each
claim. See O’Sullivan v. Boerckel, 526 U.S. 838, 839 (1999);
Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001). To sat-
isfy this requirement, a petitioner must present to the state
judiciary both the operative facts and legal principles that
control each claim. See Wilson, 243 F.3d at 327. Second, the
petitioner must comply with state rules to avoid proce-
durally defaulting his claims. See Boerckel v. O’Sullivan,
135 F.3d 1194, 1196-97 (7th Cir. 1998), rev’d on other
10 No. 01-4271
grounds by O’Sullivan v. Boerckel, 526 U.S. 838, 849 (1999).
A federal court, however, may excuse a procedural default
if a petitioner can show either cause for the default and
prejudice arising from failure to review the claims, or that
failure to review the claims on procedural grounds would
result in a fundamental miscarriage of justice. See Howard
v. O’Sullivan, 185 F.3d 721, 726 (7th Cir. 1999).
If a petitioner passes all these hurdles, a federal court
may then grant a writ of habeas corpus, but only if the
state court’s rejection of the claim either resulted in a deci-
sion that was contrary to or involved an unreasonable ap-
plication of clearly established federal law as determined
by the United States Supreme Court, or resulted in a deci-
sion that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d). The state court’s factual
determinations are presumed correct, although a petitioner
may rebut that presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
In support of his habeas petition, Mahaffey raises a
cluster of claims based on events that took place within the
Chicago Police Department in the 1980’s, around the time
he was arrested. The officers who arrested and questioned
Mahaffey were part of “Area 2” of the Chicago Police De-
partment, which became the subject of internal reports and
lawsuits centering on claims by defendants in criminal
cases that some of its officers abused them to extract con-
fessions. This alleged abuse is the prism through which
Mahaffey attempts to pass three separate habeas claims: a
Brady claim, an ineffective assistance of counsel claim, and
a Fourth Amendment claim. Basically, Mahaffey argues
that if he had known of the claims against Area 2 officers
before his suppression hearing and trials, he could have
used the evidence to show that officers tortured him into
confessing and generally to impeach their testimony. To
show that “evidence” of widespread abuse used to extract
No. 01-4271 11
confessions existed at the time of his 1984 suppression
hearing and trials, Mahaffey cited the state court transcript
of a 1982 suppression hearing involving a defendant named
Andrew Wilson, who alleged that Area 2 officers tortured
him into confessing to an explosive crime—the murder of
two Chicago police officers. See People v. Wilson, 506 N.E.2d
571 (1987). He also cited evidence, gathered beginning in
the late 1980’s, alleging that some Area 2 officers routinely
beat and tortured suspects to obtain confessions. Against
this background, we consider Mahaffey’s claims.
Brady v. Maryland, 373 U.S. 83, 87 (1963), holds that the
prosecution’s suppression of evidence favorable to an ac-
cused violates due process when it is material to guilt or
punishment. Mahaffey claims that the state violated Brady
when, during the 1984 hearing on his motion to suppress
his statements, the state failed to disclose exculpatory
evidence—the abuse allegations against certain Area 2
officers. This claim was first made in 1997, 16 years af-
ter the murders, 15 years after the first trial, 10 years
after the first appeal, 6 years after the second trial, and 2
years after Mahaffey’s direct appeal was rebuffed by the
Illinois Supreme Court. The district court declined to con-
sider Mahaffey’s Brady claim, holding that the Illinois
Supreme Court’s determination that Mahaffey waived it
by failing to raise it on his 1995 direct appeal was an
independent and adequate state ground disposing of the
claim. See People v. Mahaffey, 194 Ill. 2d 154, 173 (2000).
Illinois law provides that the failure to raise an issue on
direct appeal results in it being barred by res judicata in
postconviction proceedings. See People v. Whitehead, 169
Ill. 2d 355, 371 (1996), partial overruling on other grounds
recognized by People v. Page, 193 Ill. 2d 120 (2000). Illinois
law also provides that a court may review an improp-
erly preserved postconviction claim where fundamental
fairness so requires, which means that the petitioner must
demonstrate cause and prejudice. See id. at 371-72. The
12 No. 01-4271
Illinois Supreme Court held that Mahaffey could not show
cause and prejudice because he failed to establish that the
information submitted in support of his Brady claim was
available to the state at the time of the 1984 suppression
hearing or that there was an “investigation” of Area 2
officers before that time. The court also held that Mahaf-
fey failed to produce evidence that the state knew in 1984
of a series of prior instances in which Area 2 officers al-
legedly tortured suspects to extract confessions and that
any apparent nexus between alleged abuse of other suspects
and Mahaffey’s claims of abuse did not arise until years
after his suppression motion. Thus, the court found that
Mahaffey could not state a Brady claim and therefore that
he suffered no prejudice.
Mahaffey argues that, in light of Andrew Wilson’s 1982
allegations that Area 2 officers tortured him, the Illinois
Supreme Court clearly erred in holding that evidence of the
Area 2 officers’ alleged brutality did not exist at the time
of Mahaffey’s suppression hearing. The record indicates
that Mahaffey provided the Wilson transcript to the Illi-
nois Supreme Court on postconviction review. Although the
Wilson transcript details allegations of torture, Mahaffey
presented no evidence that the state was or should have
been aware at the time of Mahaffey’s suppression hear-
ing that Wilson’s alleged mistreatment was part of a larger
system of abuse. Even assuming the truth of Wilson’s tes-
timony, the other exhibits Mahaffey produced in support of
his Brady claim indicate that information suggesting that
Area 2 officers systematically abused suspects did not arise
until the late 1980’s or early 1990’s, well after Mahaffey’s
1984 suppression hearing.
The 1984 suppression hearing consisted of Mahaffey’s
testimony that police officers beat him after arresting him
in Redmond’s apartment and later at the police station.
Mahaffey also presented Redmond’s testimony that, al-
though he saw no abuse in the apartment during the arrest,
No. 01-4271 13
he heard Mahaffey holler “Don’t hit me no more.” The state
trial judge found Mahaffey’s and Redmond’s testimony
unworthy of belief. Weighed against this discredited tes-
timony, the state presented the testimony of several ar-
resting officers that no abuse occurred; testimony from
state’s attorney Miller that Mahaffey showed no signs of
abuse and made no claims of abuse during the whole time
that Miller and Mahaffey were together while Mahaffey
was making his detailed statement, which itself said no
abuse occurred; and the testimony of a medical technician
at the Cook County jail, who observed no signs of abuse (or
heard complaints of abuse) when Mahaffey was booked
after admitting his crimes to the police and Miller.
Even assuming that Mahaffey did not procedurally de-
fault his Brady claim or that he could overcome his default
by establishing cause and prejudice, his claim would be
unsuccessful. A Brady violation does not arise due to noth-
ing more than the possibility that the undisclosed evidence
might have helped the defense. See United States v. Hamil-
ton, 107 F.3d 499, 510 (7th Cir. 1997). As we have said,
to establish a valid Brady claim, a petitioner must show
that the prosecution suppressed the evidence, that the
evidence was favorable to the defense, and that the evi-
dence was material to the case. See United States v. Asher,
178 F.3d 486, 496 (7th Cir. 1999). The test for materiality
is whether, in the absence of the evidence, the petitioner
received a fair trial resulting in a verdict (or in this case a
suppression hearing and a decision) worthy of confidence.
See id. (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
Here, Mahaffey argues that evidence of systematic police
brutality would have helped him establish that the police
abused him to extract a confession. This argument is un-
dermined by the fact that Mahaffey put forth no credible
evidence that he suffered physical injuries from a beating.
Moreover, Mahaffey stated in his detailed confession that
the officers treated him well, gave him food and coffee
14 No. 01-4271
during questioning, and did not beat him. Also, the Illinois
courts found that the only officer to have custody of Mahaf-
fey at Area 2 was Detective John Yucaitis, and he was not
directly implicated in any abuse allegation (though he was
present during Wilson’s statement) by other arrestees.
Even disregarding Mahaffey’s confession, the state pre-
sented powerful evidence at trial of his guilt. Ricky
Pueschel identified him in court as his parents’ murderer.
Mahaffey argues that Ricky’s identification was unreliable
because he expressed “uncertainty” (i.e., he was “only” 99
percent certain of his identification) and because he failed
to pick Mahaffey out of a pretrial lineup. This argument
is unavailing because, as we said, the lineup took place
while Ricky was still recovering from severe head injuries,
which explains his failure to identify Mahaffey at that
time. In addition to young Ricky’s identification, the jury
heard that police found the Pueschels’ jewelry and weap-
ons in Mahaffey’s living quarters when they arrested him.
They also heard that, at the police station after his arrest,
Mahaffey produced a ring and a wristwatch belonging to
Dean Pueschel and stated that they belonged with the other
stolen property that the police had recovered. Thus, even in
the absence of Mahaffey’s confession, enough evidence link-
ing him to the crime existed to ensure that the verdict of
guilty against him was worthy of confidence. Therefore,
even had Mahaffey properly preserved his Brady claim, it
would not support a grant of habeas relief.
Mahaffey’s second Area 2 claim is that he received inef-
fective assistance of counsel at his suppression hearing and
first trial because his counsel did not investigate and
discover the alleged Area 2 misconduct. The district court
held that Mahaffey waived this argument by failing to raise
it on his direct appeal before the state court system and
failed to show cause and prejudice for the default.
We agree with the district court. As we have noted, no
evidence establishing a pattern of brutality existed in 1984,
No. 01-4271 15
so Mahaffey’s counsel had nothing to discover. Although
Wilson’s 1982 testimony existed, it would not have alerted
counsel to the possibility of Area-2-wide brutality used to
extract confessions. Thus, Mahaffey cannot establish prej-
udice to overcome his procedural default.
Even assuming that Mahaffey properly preserved his
ineffective assistance claim, it would be unsuccessful. To
establish a claim of ineffective assistance of counsel, Mahaf-
fey must show that his 1984 counsel’s performance was
deficient, which means that counsel’s errors were so serious
that they deprived Mahaffey of “counsel” within the mean-
ing of the Sixth Amendment, and that the deficient perfor-
mance prejudiced him, which means that counsel’s errors
were so serious that they deprived him of a fair trial with
reliable results. See Strickland v. Washington, 466 U.S. 668,
687 (1984).
Here, there was no deficient performance, because evi-
dence of systematic abuse leading to coerced confessions
didn’t exist in 1984. Assuming deficient performance,
Mahaffey cannot satisfy the prejudice prong of the Strick-
land test because, even ignoring his confession, overwhelm-
ing evidence supported his conviction. Therefore, Mahaffey’s
ineffective assistance claim could not support a grant of
habeas relief.
Mahaffey’s final “Area 2” issue is a Fourth Amendment
claim that rests on shifting sand. In his brief he says he was
victimized by an illegal arrest and search. He says the
police should have had a warrant to enter the apartment
where he was living and that his “landlord [Redmond] had
no authority to validly consent to the warrantless entry by
police into Petitioner’s domain.” He goes on to argue, “Be-
cause of the sublease arrangement between Petitioner and
his landlord, the latter did not have ‘common authority’ or
‘mutual use’ concerning the bedroom so as to provide effec-
tive consent for the entry to arrest and search.” The Su-
16 No. 01-4271
preme Court of Illinois found a valid consent by Redmond
to the entry and search and further that exigent circum-
stances excused the failure to get a formal warrant.
Mahaffey cannot pursue his Fourth Amendment claim
in federal court under Stone v. Powell, 428 U.S. 465 (1976),
if he had a full and fair consideration of the claim in state
court. So now, rather than focus on Redmond’s alleged lack
of legal authority to consent to the entry and search, Mahaf-
fey shifts gears and, pulling out the “Area 2” issue, says
he didn’t receive “a full and fair” Fourth Amendment hear-
ing because he could not impeach the officers with the
alleged “beating” evidence. The officers’ testimony at the
1984 suppression hearing was the basis for the court’s find-
ing that the warrantless search and arrest were justified
by consent and exigent circumstances. At that time, we
repeat, the only evidence of alleged Area 2 abuse was
Wilson’s suppression hearing transcript. Because Wilson’s
testimony was not very strong evidence of systematic po-
lice misconduct, it would not have impeached the officers’
testimony that Redmond consented to the officers’ entry
into, and search of, the apartment where Mahaffey was ar-
rested.
Nor would the Area 2 evidence have strongly impeached
the officers regarding the existence of exigent circum-
stances. There was a danger that Mahaffey would flee if not
quickly apprehended because his brother Cedric was di-
recting the officers to Mahaffey’s apartment when the po-
lice car passed yet another Mahaffey brother, Terry. Cedric
put a towel over his face, telling the officers that he feared
that Terry would warn Mahaffey that Cedric was with the
police. The officers believed that Mahaffey was armed
because Cedric had told them that Mahaffey had two of the
three guns taken during the Pueschel break-in. And time
was of the essence here. The officers did not speak to Cedric
until 2 a.m. on September 2, 1983. Immediately after speak-
ing to him, they drove to the apartment where Mahaffey
No. 01-4271 17
was staying, arriving there at about 4:15 a.m. Thus, the
strength of the exigent circumstances evidence surely would
have outweighed any impeachment evidence regarding
the alleged misconduct of Area 2 officers in other cases.
Therefore, Mahaffey had a full and fair opportunity to liti-
gate his Fourth Amendment claims before the state court,
and his Fourth Amendment claim cannot form the basis
for habeas relief under Stone v. Powell.
Mahaffey also raises several issues that do not rely on the
Area 2 claims. The first is that forensic expert Fish gave
perjured testimony at both trials. Mahaffey never raised
this argument before the state court and therefore proce-
durally defaulted it. To overcome the default, he must dem-
onstrate cause and prejudice.
Here, Mahaffey argues that cause existed for his default
because his evidence of Fish’s alleged perjury was newly
discovered. He cites a 2001 review of Fish’s testimony in
several other cases by criminalists at Forensic Science
Associates, a California laboratory. In their review, the
criminalists stated that Fish frequently exaggerated the
scientific significance of her findings in favor of the prosecu-
tion.
Even assuming that this report constituted newly discov-
ered evidence, Mahaffey cannot establish prejudice aris-
ing from his default of this claim. Fish testified that a
revolver recovered from Mahaffey’s night stand had blood
traces consistent with Jo Ellen’s blood type and that a
vaginal swab tested positive for the presence of sperm. She
also testified that Mahaffey was a nonsecretor and that she
could not determine the blood type from the vaginal swab
because it did not reveal the presence of activity for any
blood type. Even excluding this testimony, sufficient evi-
dence, in the form of Ricky’s identification and the stolen
property recovered from Mahaffey’s residence and person,
existed to support Mahaffey’s conviction. Therefore, because
18 No. 01-4271
he cannot establish cause and prejudice, Mahaffey proce-
durally defaulted his claim that Fish presented perjured
testimony.
Mahaffey’s next claim is that he was sentenced in viola-
tion of his Fifth Amendment right against self-incrimina-
tion. In support of this claim, he argues that Dr. Reifman
should have been precluded from testifying at the sentenc-
ing hearing because Mahaffey was not given a Miranda
warning before the psychiatric examination. The Illinois
Supreme Court held that Mahaffey failed to preserve this
issue because he did not make a contemporaneous objection
to Reifman’s testimony at the sentencing hearing. Thus, the
Supreme Court’s review of the issue was for plain error. See
People v. Bean, 137 Ill. 2d 65, 80 (1990). The plain-error
exception applies where the evidence is closely balanced or
when the error is so substantial that it denied the petitioner
a fair proceeding. See id.
The Illinois Supreme Court held that plain error did not
exist. Mahaffey did not present any evidence in mitigation,
whereas the state presented extensive evidence in aggrava-
tion, including Mahaffey’s prior criminal record and his at-
tempt to escape from the Cook County Department of Cor-
rections. Therefore, the Illinois Supreme Court declined to
review Mahaffey’s Fifth Amendment claim.
Mahaffey argues that the state court’s ruling unreason-
ably misapplied the United States Supreme Court’s hold-
ing in Estelle v. Smith, 451 U.S. 454 (1981). There, the
Court held that the Fifth Amendment right against self-
incrimination applies to certain uses of mental health
examinations and interviews. Estelle v. Smith was a capital
case in which the prosecutor used the defendant’s state-
ments made during a pretrial competency examination
(which the trial court ordered sua sponte) to show the de-
fendant’s future dangerousness, an element required to
impose the death penalty in Texas. See id. at 456-60. In
No. 01-4271 19
contrast, Reifman merely testified that Mahaffey was fit
for sentencing and that he was not suffering from a mental
disease. Therefore, because Mahaffey’s case is distinguish-
able, the Illinois Supreme Court did not unreasonably ap-
ply Estelle v. Smith. We find that the Illinois Supreme
Court’s holding was an independent and adequate state
basis for disposition of the claim. Mahaffey has not demon-
strated cause for his failure to make a contemporaneous
objection to Reifman’s testimony. Nor can he demonstrate
prejudice because, even excluding Reifman’s testimony, the
state presented adequate evidence in aggravation to sup-
port Mahaffey’s death sentence.
Mahaffey also argues that his Eighth Amendment rights
were violated when the prosecutor made a reference to the
Bible during rebuttal at the second stage of the sentencing
hearing. Mahaffey failed to make a contemporaneous ob-
jection to the comment, and the Illinois Supreme Court
again held that the argument was waived. It also found
that the plain-error exception did not apply because the
sentencing evidence was not closely balanced.
We find that the Illinois Supreme Court’s disposition of
this claim rested on an independent and adequate state
ground. Mahaffey has not demonstrated cause for his fail-
ure to make a contemporaneous objection to the comment.
Nor can he demonstrate prejudice. Because Mahaffey pre-
sented no mitigating evidence to counter the state’s ex-
tensive aggravating evidence, he suffered no prejudice from
the prosecutor’s biblical reference. Additionally, the jurors
were properly advised of the nature and purpose of the
parties’ arguments and would have understood that the
prosecutor’s comment was not to be considered as evidence.1
1
We note that Mahaffey’s own argument was replete with ref-
erences to God and the Bible. In fact, he began his closing argu-
(continued...)
20 No. 01-4271
Finally, Mahaffey argues that he is entitled to habeas
relief because the jury returned legally inconsistent verdicts
at the eligibility phase of his sentencing hearing. The
state asserted that Mahaffey was eligible for the death
penalty based on two aggravating factors—his commission
of multiple murders and his commission of murder in the
course of a felony. The multiple-murder verdict would
have required the jury to find that Mahaffey had been
convicted of murdering two or more persons and that the
deaths were the result of an intent to kill more than one
person or of separate acts that he knew would cause death
or create a strong probability of death or great bodily harm
to the victim or another. The felony-murder aggravating
factor required the jury to find that Mahaffey acted with
intent or knowledge in killing or injuring the murdered
person. The jury returned a felony-murder verdict but
not a multiple-murders verdict. Under Illinois law, ver-
dicts returned in the same action that are legally inconsis-
tent should be set aside, necessitating a new trial. See
Mercado v. Ahmed, 974 F.2d 863, 866 (7th Cir. 1992).
The Illinois Supreme Court held that the verdicts
were not inconsistent. It reasoned that the jury’s failure to
return a finding on the multiple-murder aggravating cir-
cumstance meant that it was unable to determine that
Mahaffey acted with knowledge or intent with respect
to both victims. The court went on to find that the jury
could have found that Mahaffey possessed the requisite
intent with regard to one of the victims but not for both,
which would have allowed the jury to return a finding on
the felony-murder factor but not on the multiple-murder
factor.
1
(...continued)
ment by saying, “Ladies and gentleman, I’m here before you today
in the name of the Lord.” R. at 1718.
No. 01-4271 21
But even assuming that the verdicts were legally incon-
sistent, the Illinois Supreme Court’s decision not to grant
a new trial did not involve an unreasonable application of
United States Supreme Court precedent. The United States
Supreme Court has held that inconsistent verdicts are con-
stitutionally tolerable. See Los Angeles v. Heller, 475 U.S.
796, 804 (1986); Standefer v. United States, 447 U.S. 10, 25
(1980). Thus, Mahaffey is not entitled to habeas relief on
this ground.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-27-02