Barrow, Ronald v. Uchtman, Alan ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3622
RONALD BARROW,
Petitioner-Appellant,
v.
ALAN UCHTMAN, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 9152—Amy J. St. Eve, Judge.
____________
ARGUED NOVEMBER 1, 2004—DECIDED FEBRUARY 15, 2005
____________
Before CUDAHY, ROVNER and WOOD, Circuit Judges.
PER CURIAM. Petitioner Ronald Barrow, serving a life sen-
tence for murder in an Illinois correctional facility, appeals
the district court’s denial of his habeas corpus petition under
28 U.S.C. § 2254. Barrow alleges, inter alia, that since his
trial counsel failed to present any evidence in defense and
committed several other errors during state proceedings, he
was denied effective assistance of counsel in violation of his
rights under the Sixth Amendment to the United States
Constitution. Barrow claims that the Illinois Supreme
2 No. 03-3622
Court’s determination that his trial counsel’s performance
(1) was not objectively deficient and (2) did not prejudice
Barrow constituted an unreasonable application of Supreme
Court precedent. The district court found these contentions
unpersuasive. We affirm.
I. BACKGROUND
The facts of Barrow’s underlying conviction are largely
undisputed. After a jury trial in the circuit court of LaSalle
County, Illinois, Barrow was found guilty of murder, armed
robbery, residential burglary and burglary on June 3, 1985.
The following factual evidence—which would prove crucial
to both Barrow’s state conviction and the district court’s
denial of his later habeas claims of ineffective assistance of
counsel—was presented at trial.1
On February 19, 1984, the body of the victim, Joseph
O’Berto, was discovered in the basement of his residence
located in Cedar Point, Illinois. He had been shot in the head,
and investigating officers found a spent projectile which
police forensic scientists determined could have been fired
from a 9 millimeter-caliber gun. Several of the stairs lead-
ing to the victim’s basement had been “torn up,” and the
basement also contained an empty safe and three slot ma-
chines. There were no signs of forced entry into the victim’s
home. Darlene Brown, the victim’s daughter, had discovered
the body of the victim lying in the basement in a pool of
blood the morning after the murder. Brown testified that
she found the front door to the victim’s residence unlocked
1
The facts in this section are taken principally from the Illinois
Supreme Court’s affirmance of Barrow’s conviction on direct ap-
peal, People v. Barrow, 133 Ill.2d 226, 238-45, 549 N.E.2d 240(1989), and the Illinois Supreme Court’s denial of Barrow’s sub-
sequent petition for post-conviction relief, People v. Barrow, 195
Ill.2d 506, 512-17, 749 N.E.2d 892 (2001).
No. 03-3622 3
and that several rooms in the house were in disarray. She
also determined that a number of her father’s possessions
were missing, including his wallet (which she said typically
contained about $500 in denominations of $100), a bank-
book with $20,000 on deposit and a gold money clip.
On March 15, 1984, Illinois State Police were contacted by
Judy Herron, who informed them that her boyfriend, Harold
“Smokey” Wrona, who was incarcerated in a Maryland State
prison, had information concerning the victim’s death and
wished to meet with police. The police met with Wrona and,
based on information that he provided them, they made
arrangements with Maryland law enforcement officials to
have Wrona released from prison so he could meet with
Barrow and provide an opportunity for Barrow to make in-
criminating statements that could be recorded with police
surveillance equipment. On April 6, 1984, Wrona and Barrow
met in a hotel room in Maryland which was equipped with
hidden audio and video equipment operated by Maryland
law enforcement officials. After Barrow made a number of
incriminating statements to Wrona, he was arrested and
charged with the offenses indicated above.
At trial, the State’s star witness against Barrow was
Wrona. Wrona testified that he met the defendant in July
of 1983, while they were incarcerated in the same cellblock
at a Maryland prison. According to Wrona, he told Barrow
that in 1966 two of his friends had burglarized a home in
Cedar Point, Illinois and stole $64,000 that they found under
a step of the basement stairs. Wrona stated that his friends
told him they also found three “barrels of change” in the
basement but took only the cash, and they later discovered
that an additional $175,000 was hidden under one of the
lower steps of the basement stairs where they had not
searched. Wrona further testified that on February 2, 1984,
after Barrow was released from prison on bond pending an
appeal of a Maryland conviction for armed robbery, Barrow
visited Wrona in prison. At that time he told Wrona that he
4 No. 03-3622
was going to Davenport, Iowa, because he had a “score” there
and wanted to visit Wrona’s son on the way. The defendant
also inquired about the robbery of the man in Cedar Point
that Wrona had told him about earlier. He sought directions
to Cedar Point and asked Wrona whether he knew what the
burglarized house looked like.
According to Wrona’s testimony, Barrow again visited him
in prison on February 24, 1984, reporting that he had made
“a pretty good score” in Cedar Point. Barrow said he and his
brother Bruce had watched the victim’s home for about a
week, and that late one night he had knocked on the front
door, told the victim that he was having car trouble, stuck
his foot in the door and pushed the victim back into the house
with a gun and handcuffed him. Barrow reported finding a
wallet in the victim’s pocket which contained five $100 bills,
and he searched the house and found a bankbook showing
$18,000 on deposit. In the basement, Barrow reported
finding an empty safe and three slot machines covered with
plastic. Barrow also stated that he and his brother “tore
a couple stairs up” but did not find anything. In addition,
Barrow said that he asked the victim where the money was
but the man could not hear so he “whipped him.” While
pointing a finger to his head, Barrow told Wrona that he
“had to take him [the victim] out of it.” Wrona testified that
Barrow said he and his brother wore gloves during the
course of the crime and that he disposed of the gun in a river
in Indiana just prior to being stopped by an Indiana State
trooper for speeding.
The most crucial piece of evidence was the recording of
Barrow’s conversation with Wrona in the Maryland hotel
room, which had been monitored by police surveillance equip-
ment and was played for the jury at trial. A transcript of the
recording was also received into evidence. The transcript
shows that Barrow told Wrona that “everything went just
like . . . we had planned it.” Barrow said he watched the
victim’s home for a week and that late one evening, after
No. 03-3622 5
midnight, he forced his way into the victim’s house. Barrow
stated that although he hit the victim “all over,” O’Berto
would not tell him anything except “where he kept change.”
Barrow said he searched everywhere and found only an
empty safe in the basement. Barrow also stated that he
“pulled up” the first two stairs leading to the basement but
did not find any money. Wrona asked the defendant what
kind of gun he used and the defendant replied that it was a
“hot, nine mil[limeter]” which he had obtained in Delaware.
The defendant added that he had tossed the gun off a bridge
on his way back from Cedar Point.
The State presented abundant evidence demonstrating
that Barrow and his brother were in the Cedar Point area
driving a rented white Ford Thunderbird immediately be-
fore and after February 18, 1984.2 Barrow and his brother
2
This evidence included testimony from Judy Herron (Wrona’s
girlfriend), indicating that Barrow and his brother, driving a white
car, had visited her home in Seatonville, Illinois twice during this
period; testimony from Patricia Hurley, an employee of Budget
Rent-A-Car in Newark, Delaware, to the effect that on February 11,
1984, Barrow rented a white Ford Thunderbird bearing license
plate number 744741; testimony from a clerk of the Holiday Inn
motel in Peru, Illinois who testified that on February 13, 1984, the
defendant checked into room 123 with a second man and checked
out on February 19, the morning after O’Berto’s murder; the
testimony of Kathleen Noll, a LaSalle County police officer,
indicating that on February 16, 1984, at approximately 4:45 a.m.,
she observed Bruce Barrow driving a white Ford Thunderbird
with Delaware license plate number 744741, heading the wrong
way down a one-way street in downtown LaSalle, Illinois; a tape
recording of phone calls made by Bruce Barrow to the defendant
after being stopped and arrested by officer Noll for this traffic of-
fense; testimony from a worker at a Cedar Point restaurant pat-
ronized by Bruce Barrow at approximately 10 p.m. on February 18,
1984; testimony of Curtis Barmes, an Illinois State trooper, indi-
(continued...)
6 No. 03-3622
were driving this same model and make of car when they
were stopped by an Indiana state trooper for speeding the
day after the murder. The prosecution also presented evi-
dence to link a pair of Barrow’s shoes, found in a search of
his home in Maryland, to the impression of a shoe recovered
from a piece of plywood found in the victim’s basement. A
police forensic scientist stated that the shoes found in the
defendant’s apartment “could have made the footwear im-
pressions” considering that the size and the pattern of the
sole of the shoes matched those exhibited on the impression.
On the heel of the left shoe was found a small bloodstain
which contained human blood type O. Both the defendant
and the victim were blood type O as well (as is 45% of the
white, male population of the United States).
During the trial, Barrow’s attorney presented no evidence
whatsoever in defense, apparently believing—erroneously—
that the submission of any evidence would waive error on
a later motion for a directed verdict. Barrow, 133 Ill.2d at
247-48. Barrow’s attorney may also have had other moti-
vations for this decision, but the record is not entirely clear
on this point. Id. In any event, both parties agree that
counsel’s failure to present evidence in defense was based,
in large part, on his misunderstanding of Illinois law.
2
(...continued)
cating that on February 18, 1984, at approximately 1:55 a.m., he
observed a white Ford Thunderbird with Delaware license plates
number 744741 heading north on Route 51 at a point south of the
Illinois River bridge near Cedar Point; testimony of Dave Doll, an
Indiana State trooper, indicating that on February 19, 1984, at
approximately 5:07 a.m. Eastern Standard Time, he stopped
Barrow and another man for speeding in a white Ford Thunder-
bird heading east on the Indiana Toll Road.
No. 03-3622 7
As part of this strategy of silence, Barrow’s counsel de-
clined to put Barrow or his brother on the stand.3 Barrow’s
lawyer did cross-examine the State’s star witness, convicted
felon Smokey Wrona, though Barrow contends that counsel
did so ineptly since he failed to ask any questions about
Wrona’s (many) prior convictions. Barrrow further asserts
that counsel did not adequately exploit inconsistencies in
government evidence, did not adequately investigate or
present certain evidence and failed to object to improper
evidence and argument presented by the State.
At the conclusion of the trial, the jury found Barrow guilty
of murder, armed robbery, residential burglary and bur-
glary. The State asked for the death penalty, and after the
first stage of the sentencing hearing, the jury found that
Barrow was subject to the death penalty since he was over
18 years of age at the time of the murder and had killed the
victim in the course of a felony (armed robbery). The trial
court sentenced Barrow to death for the murder conviction,
plus a consecutive 30-year prison term for the armed robbery
conviction and a 15-year term for the residential burglary
conviction.
Barrow’s conviction was affirmed by the Illinois Supreme
Court on direct appeal. People v. Barrow, 133 Ill.2d 226, 549
N.E.2d 240 (1989) (Barrow I). The Illinois Supreme Court
later denied Barrow’s petition for post-conviction relief, re-
jecting his arguments regarding ineffective assistance of
counsel as alternatively procedurally barred and/or without
substantive merit. People v. Barrow, 195 Ill.2d 506, 749
N.E.2d 892 (2001) (Barrow II).
3
Barrow claims that counsel promised the jury it would hear
testimony from both Barrow and his brother. However the trial
transcript reveals no such explicit promise. Barrow’s lawyer
merely assured the jury that evidence would be presented, and
that Barrow had an explanation of the night in question that “we
will tell you about.” (R. at 1863-72.)
8 No. 03-3622
Barrow then filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 with the district court for the
Northern District of Illinois on June 3, 2002, and while the
petition was pending, Barrow’s death sentence was com-
muted to natural life in prison by the executive clemency
action of Governor George Ryan on January 11, 2003. The
district court subsequently denied Barrow’s habeas petition,
U.S. ex rel. Barrow v. McAdory, 2003 WL 21920258 (N.D.
Ill., Aug. 12, 2003), holding that the Illinois Supreme
Court’s rejection of Barrow’s ineffective assistance claims
did not involve an unreasonable application of federal law
under 28 U.S.C. § 2254(d). The district court denied Bar-
row’s Motion for Issuance of a Certificate of Appealability.
Barrow v. McAdory, 2003 WL 22282520 (N.D. Ill., Sept. 29,
2003).
We granted Barrow’s Motion for a Certificate of
Appealability on the limited issue of whether Barrow re-
ceived ineffective assistance of counsel, determining that
Barrow had made a substantial showing of a constitutional
violation as required by 28 U.S.C. § 2253(c)(1)(B)(2). (2/2/04
Order, App. B at 37.) Barrow now appeals the district court’s
denial of his habeas petition.
II. JURUSDICTION
The district court had jurisdiction over Barrow’s habeas
petition pursuant to 28 U.S.C. § 2254. The district court de-
nied Barrow’s petition and subsequently denied his Motion
for a Certificate of Appealability on September 29, 2003.
This Court then granted Barrow’s Motion for a Certificate
of Appealability on February 2, 2004. Accordingly, we now
have jurisdiction pursuant to 28 U.S.C. § 2253(c).
No. 03-3622 9
III. STANDARD OF REVIEW
We review the district court’s denial of a habeas petition
de novo and its findings of fact for clear error. Denny v.
Gudmanson, 252 F.3d 896, 900 (7th Cir. 2001); Dixon v.
Snyder, 266 F.3d 693, 695 (7th Cir. 2001).
Under the Anti-Terrorism and Effective Death Penalty
Act (AEDPA), 28 U.S.C. § 2254(d), a federal court will not
grant a writ of habeas corpus to a state prisoner with re-
spect to any claim adjudicated on the merits in state court
unless the state decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States” or (2) 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)(1-2) (2003). See also
Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
A state decision is “contrary to” clearly established federal
law if the state court applies the incorrect rule of law or
confronts facts that are materially indistinguishable from a
relevant Supreme Court case and arrives at the opposite
result. Id. at 405-06. A state decision involves an unreason-
able application of Supreme Court precedent if it identifies
the correct governing legal rule but applies that rule unrea-
sonably to the facts of a particular case. Id. at 407-08. This
reasonableness determination is quite deferential, such that
a state decision may stand as long as it is objectively reason-
able, even if the reviewing court determines it to be substan-
tively incorrect. Id. at 411-12. See also Woodford v. Visciotti,
537 U.S. 19, 24-25 (2002) (state court determination may
not be overturned simply because it is incorrect); Dixon, 266
F.3d at 700 (the state court decision must be both incorrect
and unreasonable to be overturned); Hall v. Washington,
106 F.3d 742, 748-49 (7th Cir. 1997) (state decision may
stand as long as it is one of several reasonable outcomes).
Additionally, a state court’s determination of factual issues
10 No. 03-3622
is presumed correct unless the petitioner rebuts this
presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1) (2003).
IV. DISCUSSION
Claims for ineffective assistance of counsel are evaluated
under the now-familiar two-pronged test outlined in
Strickland v. Washington, 466 U.S. 668 (1984).4 First,
4
Both parties and all the courts below have proceeded on the
assumption that Barrow’s claims are governed by the Strickland
standard. Barrow does not argue for application of a different
legal test. However, we note at the outset that counsel’s extreme
failings at trial come perilously close to triggering the rule out-
lined in United States v. Cronic, 466 U.S. 648 (1984). In Cronic,
handed down the same day as Strickland, the Supreme Court
ruled that in certain cases a lawyer’s failures are “so likely to
prejudice the accused that the cost of litigating their effect in a
particular case is unjustified.” Id. at 658. In other words, in the
most extreme instances of lawyerly incompetence, courts may do
away with Strickland’s second “prejudice” prong altogether. The
Supreme Court has offered three examples of such an extreme
case: (1) where the accused is “denied the presence of counsel at
a critical stage” in proceedings, (2) where counsel “entirely fails to
subject the prosecution’s case to meaningful adversarial testing” or
(3) where “counsel is called upon to render assistance under cir-
cumstances where competent counsel very likely could not.” Bell
v. Cone, 535 U.S. 685, 695-96 (2002) (citing Cronic, 466 U.S. at
659-62) (internal quotations omitted) (emphasis added). In such
cases, “the defendant need not show that the proceedings were
affected [by counsel’s errors].” Id. at 696.
In the instant case, given that Barrow’s attorney adduced no
evidence in defense (including no oral witness testimony), it could
certainly be argued that Barrow’s counsel “entirely fail[ed] to sub-
ject the prosecution’s case to meaningful adversarial testing.”
However, this characterization is not supported by the Supreme
(continued...)
No. 03-3622 11
defendant must show that the performance of counsel fell
outside the “range of competence demanded of attorneys in
criminal cases”—i.e., that it “fell below an objective stand-
ard of reasonableness.” Id. at 687-88 (quotations omitted).
Under this first “performance” prong, courts are to “indulge
a strong presumption” of competence such that “the defend-
ant must overcome the presumption that, under the circum-
stances, the challenged action might be considered sound
4
(...continued)
Court’s subsequent applications of Cronic. For example, in Bell,
the Court rejected a habeas petitioner’s argument that his lawyer
failed the Cronic standard by declining to present a case in re-
sponse to evidence offered by the prosecution at a sentencing hear-
ing. Id. at 696-98. The Court explained its decision as follows:
When we spoke in Cronic of the possibility of presuming pre-
judice based on an attorney’s failure to test the prosecutor’s
case, we indicated that the attorney’s failure must be com-
plete . . . . Here, respondent’s argument is not that his counsel
failed to oppose prosecution throughout the sentencing pro-
ceeding as a whole, but that his counsel failed to do so at
specific points.
Id. at 696-97. This holding is in accord with other Supreme Court
precedents where attorney failure to adduce evidence at sentenc-
ing was evaluated under Strickland rather than Cronic. See, e.g.,
Burger v. Kemp, 483 U.S. 776, 788 (1987); Darden v. Wainwright,
477 U.S. 168, 184 (1986).
Of course, counsel’s failings in the instant case occurred at trial
rather than at a sentencing hearing, and thus they may be con-
sidered more grievous. Nonetheless, like the lawyer at issue in
Bell, Barrow’s attorney did not fail to take action altogether—at
the very least he presented opening and closing arguments, and
he cross-examined the State’s witnesses (however inexpertly).
Thus in light of Bell it is most apt to say that counsel’s failure was
not complete, but occurred “at specific points” in the proceeding.
As such, we are satisfied that Strickland is the appropriate
governing precedent.
12 No. 03-3622
trial strategy.” Id. at 689 (quotations omitted). Under the
second prong of the test, the defendant must demonstrate
prejudice—“a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome.” Id.
at 694.
In its affirmance of Barrow’s conviction on direct appeal,
the Illinois Supreme Court rejected Barrow’s ineffective as-
sistance claims, stating that, under the legal test outlined
in Strickland, “there is a strong presumption that the chal-
lenged action of counsel was the product of sound trial strategy
and not of incompetence” and concluding that, in Barrow’s
case, “[w]e cannot say that the defendant has overcome this
presumption.” 133 Ill.2d at 247. Later in the opinion, the
court hedged its bets somewhat, stating that, given the “over-
whelming” evidence of Barrow’s guilt—including a recorded
confession—“[w]e cannot say that the criticized conduct of
counsel, even if considered inadequate, was sufficient so to
judge that there was a reasonable probability that, but for
counsel’s fault, the result of the trial would have been dif-
ferent.” Id. at 250.
Upon considering Barrow’s petition for post-conviction
relief, the Illinois Supreme Court initially disposed of most
of Barrow’s claims under the doctrines of res judicata or
waiver. 195 Ill.2d at 519-23. The court also seemed to back
off from its earlier assertion that Barrow’s trial counsel was
objectively competent under the first prong of Strickland,
emphasizing instead its belief that because of the “over-
whelming” evidence of Barrow’s guilt, he had failed to dem-
onstrate the requisite prejudice. Speaking to the cumulative
effects of counsel’s alleged errors, the court concluded that
“[e]ven if we were to find that counsel’s performance was
deficient, there is no reasonable probability that, but for
counsel’s performance, the result of the trial would have
been different, given the substantial amount of evidence of
the defendant’s guilt.” Id. at 525.
No. 03-3622 13
In its denial of Barrow’s habeas petition below, the dis-
trict court addressed a multitude of grounds for the inef-
fective assistance claim, only some of which are raised here.
The district court first concluded that many of Barrow’s
claims were procedurally defaulted since they were not raised
before the Illinois Supreme Court. 2003 WL 21920258, at
*21-26. With respect to those claims that were not procedur-
ally defaulted, the district court correctly noted that the
Illinois Supreme Court had identified the proper governing
rule of law—the Strickland test—and it concluded that
the Illinois Court had not applied the Strickland standard
unreasonably within the meaning of AEDPA, 28 U.S.C.
§ 2254(d): “Only clear error in applying Strickland can sup-
port a writ of habeas corpus. The Illinois Court did not err
in its application of Strickland.” Id. at *26 (citation omit-
ted).
In the instant appeal, Barrow advances seven distinct
failings by his trial counsel that, he claims, entitle him to
relief: (1) that counsel failed to present any evidence in his
defense at trial; (2) that counsel was not diligent in inves-
tigating and challenging the state’s evidence, especially
shoe-print and fingerprint evidence; (3) that counsel did not
impeach or adequately cross-examine Smokey Wrona, the
State’s star witness; (4) that counsel promised to present
testimony in defense—including testimony from Barrow
himself—and failed to do so; (5) that counsel actually asked
jurors to credit the testimony of state witness Smokey
Wrona; (6) that counsel failed to adequately cross-examine
Wrona about the recorded conversation he had with Barrow
in which Barrow incriminated himself; and (7) that counsel
failed to contest or object to the State’s presentation of
certain misleading evidence. Barrow also claims that the
cumulative impact of these errors is sufficient to warrant a
reversal of his conviction. The district court treated some of
these claims as procedurally defaulted and reached the
merits of others, but such procedural distinctions are
ultimately immaterial to our disposition of the instant
14 No. 03-3622
appeal. The end result is the same even assuming that all
of Barrow’s claims are eligible for review on the merits.
Barrow’s most basic ground for his claim—one that argu-
ably subsumes most of his other more specific grounds—
concerns his lawyer’s failure to introduce evidence at trial.
Both parties acknowledge that Barrow’s counsel presented
no evidence whatsoever in defense, and that this tactic (if
it may be so called) was motivated at least in part by coun-
sel’s erroneous understanding of Illinois law concerning
directed verdicts. Both parties also agree that the Illinois
Supreme Court correctly identified the Strickland test as
the legal rule governing Barrow’s ineffective assistance
claims. The only issue is whether the Illinois court applied
this rule unreasonably under 28 U.S.C. § 2254(d).
As to the first prong of the Strickland test, we take issue
with the Illinois Supreme Court’s initial determination that
trial counsel’s performance was reasonably competent. See
133 Ill.2d at 247. The government tries to justify counsel’s
failings by arguing that the decision not to present evidence
was a carefully considered “tactical” or “strategic” move,
pointing out that counsel’s misunderstanding of Illinois law
concerned subtle procedural distinctions. Nonetheless, the
government acknowledges that counsel’s decision not to
present any evidence was based in large part on a clear
error of law, and the government’s invocation of “tactics” or
trial strategy cannot obscure the fact that counsel errone-
ously failed to present any exculpatory evidence—in a
capital case no less. Without indulging in Barrow’s more
pejorative characterizations of this failure,5 it is enough to
note that this Court has previously held such basic legal
mistakes to fail Strickland’s first objective performance
prong. See Moore v. Bryant, 348 F.3d 238, 241-42 (7th Cir.
5
In his brief, Barrow describes counsel’s mistakes as “incredible”
(p.20), “startling” (p.32) and “ludicrous” (p.32), stating that coun-
sel showed “remarkable consistency in his incompetence” (p.21).
No. 03-3622 15
2003) (lawyer’s erroneous advice about the length of defen-
dant’s potential sentence and the consequences of a plea
bargain failed Strickland’s objective reasonableness prong);
Dixon, 266 F.3d 693, 701-03 (counsel’s ignorance of the
relevant law can be objectively deficient under Strickland).
There is no question that, in failing to adduce any evidence
in defense in a capital case, based at least in part on an
erroneous understanding of state law, the performance of
Barrow’s lawyer fell well outside the “range of competence
demanded of attorneys in criminal cases.” Strickland, 466
U.S. at 687 (quotation omitted). On this basis we consider the
Illinois Supreme Court’s application of the first prong of the
Strickland test unreasonable.
Nonetheless, the Illinois Court’s final ruling on Strickland’s
second “prejudice” prong is another matter, especially given
the highly deferential standard of review mandated by
§ 2254 of AEDPA. The Illinois Supreme Court concluded
that, in light of the “overwhelming” evidence against Barrow,
the absence of exculpatory evidence at trial did not alter the
final outcome of the case. 133 Ill.2d at 250; 195 Ill.2d at
525. Of course, it is always difficult (if not impossible) to
prove a counter-factual proposition such as this, but the
touchstone of federal habeas review under AEDPA is rea-
sonableness, not substantive rectitude. 28 U.S.C. § 2254(d)
(2003). See also Williams v. Taylor, 529 U.S. 362, 407-12
(2000). Regardless of our view of the merits of the Illinois
Court’s determination, we may not disturb it if it represents
a reasonable application of Strickland. In light of the
evidence against Barrow—including a recorded confession
in which Barrow describes the details of the crime to Smokey
Wrona—the Illinois Court’s ruling certainly does not appear
patently unreasonable. The same may be said of Barrow’s
other claims regarding the adequacy of counsel’s cross-ex-
amination of Smokey Wrona, his failure to object to certain
state evidence and his misstatements during opening and
closing arguments. While such failures may be objectively
16 No. 03-3622
deficient, one cannot say that the Illinois Supreme Court
applied Strickland unreasonably in concluding that they
were non-prejudicial. Section 2254 of AEDPA requires no-
thing more.
Barrow next contends, as a separate ground for his inef-
fective assistance of counsel claim, that his attorney prom-
ised the jury he would present exculpatory evidence—in-
cluding testimony from Barrow himself—and then failed to
do so. This claim may be seen as a reprise of Barrow’s more
general claim regarding counsel’s failure to introduce
exculpatory evidence,6 though the district court recognized
it as a separate claim and apparently evaluated it de novo
(though it did not explicitly so state). 2003 WL 21920258, at
*24 (citing Patrasso v. Nelson, 121 F.3d 297, 302 (7th Cir.
1997)). We tend to agree with the district court that this claim
is conceptually independent of the others. In Hampton v.
Leibach, 347 F.3d 219 (7th Cir. 2003), we addressed this
very issue, and there we placed great importance on coun-
sel’s unfulfilled promises to the jury as distinct from the
more general failure to present evidence. Hampton held that
where a lawyer has promised the jury that a criminal
defendant will testify in his own defense, and then unrea-
sonably breaks this promise by not calling the defendant to
the stand, such an error is both objectively unreasonable
and prejudicial to the defendant. Id. at 257-60.
However, in Hampton, this Court placed special impor-
tance on the fact that trial counsel had specifically promised
the jury that the defendant would testify himself. Id. Here,
while it is undisputed that Barrow’s attorney promised to
present exculpatory evidence, and while, by presenting his
opening statement in the first person plural (using the pro-
6
In its post-conviction proceedings, the Illinois Supreme Court
took this view and dismissed the issue as res judicata. 195 Ill.2d
at 520.
No. 03-3622 17
noun “we”), he arguably insinuated that Barrow would par-
ticipate personally in the defense, counsel made no explicit
promise that Barrow would testify himself.7 Even more
importantly, the case at bar also differs from Hampton on
the crucial prejudice issue. In Hampton, this Court held that
the defendant was prejudiced by counsel’s failure to call
him to the stand, in large part because the sole evidence
against him was other eyewitness testimony. Id. Under
such circumstances, we concluded that defendant’s opportu-
nity to contradict and cast doubt on such testimony was
critical to his defense. Id. In this case, by contrast, the pri-
mary evidence against Barrow was his own oral confession,
recorded during a conversation with state witness Wrona,
in which Barrow unequivocally confessed to the crime and
described in his own words how he committed it. Under
these circumstances, Barrow’s personal testimony seems far
less crucial to his chances of success at trial.
This is especially so because of the content of Barrow’s
proposed testimony. Barrow claims he would have testified
that his taped conversation with Wrona concerned another
crime in another state, that he was spotted in the vicinity
of Cedar Point, Illinois on the night of the murder because
he was delivering a suitcase for Wrona in that area, and
that he was carrying $500 in cash (the precise amount that
the victim habitually carried) because Wrona had paid him
7
Barrow’s attorney speaks in the first person plural throughout
his opening statement, using language like “we will show,” “we had
a reason,” etc. (See R. at 1863-72.) However, the closest he comes
to promising personal testimony from Barrow is the following state-
ment: “We have a place that we were located at on the evening of
the murder at or about the proposed time of the murder that we
will tell you about. We have a line of progression of events after
that which will clearly show to you how Ron Barrow got to where
he was at . . . .” (R. at 1865 (emphasis added).)
18 No. 03-3622
a fee for delivering the suitcase.8 However, Barrow does not
offer any detail (nor was he able to offer any at oral argu-
ment) as to what this alleged “other crime” was, when it
occurred, or why it was recounted (in the recorded conversa-
tion with Wrona) in terms so uncannily similar to the crime
for which Barrow was convicted. In short, it seems most
unlikely that Barrow’s testimony, as described at this late
stage, could have altered the ultimate verdict.9
8
Barrow’s brief presents his proposed testimony as follows:
Ronald Barrow would have testified . . . that he was innocent
of the crimes charged, that he knew nothing about the killing
with which he was charged and that he never spoke to Wrona
about the murder of the victim. His April 6, 1984 taped conver-
sation with Wrona concerned another crime in another state
which Wrona had arranged. Mr. Barrow would also have tes-
tified that he was in Illinois in February, 1984 to deliver a suit-
case for Wrona, that he received a $500 money order from
Wrona as a fee for arranging the delivery of the suitcase. On
February 18, 1984, he was with his brother Bruce at the Lamp
Liter Bar in Ottaoa, IL until 1:30 A.M. when they left on
Route 6 to return to the Holiday Inn Motel, that his brother
missed the exit, took the next exit at Route 51 and made a U-
turn at the first available road, after which an Illinois State
Trooper began following their car, that neither he nor his
brother has ever been in Cedar Point, IL, that he was not
wearing “hush puppy” shoes while he was in Illinois, that he
did not have a gun in his possession that night, and that, at
the time, he was attempting to be included in Wrona’s “mob
partners.”
(Appellant’s Br. at 28.)
9
This is so even under the more lenient formulations of the “pre-
judice” standard cited by Barrow. See Strickland, 466 U.S. at 694(defendant need only show “reasonable probability” of a different
result); Hampton, 347 F.3d at 255-56 (defendant must show a
(continued...)
No. 03-3622 19
Thus, while we take pains to reaffirm the importance
of the principle articulated in Hampton—that unfulfilled
promises to present personal testimony from a criminal
defendant are highly suspect under Strickland—Hampton
is distinguishable from the case at bar. We also agree with
the district court10 that, regardless of the standard of review
employed,11 given the abundance of evidence against him,
Barrow cannot show that he suffered prejudice from his
attorney’s unfulfilled promises to present evidence.
Finally, Barrow also contends that his decision not to
testify, based on his lawyer’s “ridiculous” advice, was not
intelligent or informed and thus constituted a violation of
his constitutional right to present testimony in his own de-
fense. Barrow, of course, is correct that the right to testify
in one’s own defense is a fundamental procedural right. He
9
(...continued)
“better than negligible” likelihood of acquittal).
10
For the district court’s ruling on this issue see 2003 WL 21920258,
at *21 (citing Gibbs v. VanNatta, 329 F.3d 582, 584 (7th Cir. 2003)
(“defendant must show effective assistance would have given him
a reasonable shot at acquittal.”)).
11
The Government urges this Court to reject the district court’s
de novo approach and review this claim under § 2254’s far more
deferential standard. (Gov. Br. at 17-18 (citing Gomez v. Acevedo,
106 F.3d 192, 196-201 (7th Cir. 1997) vacated on other grounds, 522
U.S. 801 (1997).) The State does not spend much time on this point,
however, and states that de novo review is appropriate if this Court
“disagrees with the rationale of Gomez.” Id. Gomez does apply the
deferential AEDPA standard to an issue deemed res judicata
under state law, and the Supreme Court’s subsequent reversal of
the Gomez decision rested not on this ruling but on the Seventh
Circuit’s improper retroactive application of the AEDPA. This
would seem to argue for application of AEDPA’s deferential “rea-
sonableness” review. Yet in any event, the precise standard of
review does not affect the ultimate disposition of Barrow’s claim.
20 No. 03-3622
is also correct that a defendant must acquiesce fully and in-
telligently in counsel’s attempts to waive that right— only
the defendant himself, not his lawyer, can waive the right
to testify. See Ward v. Sternes, 334 F.3d 696, 705-07 (7th
Cir. 2003). Barrow cites our decision in Moore v. Bryant, 348
F.3d 238 (7th Cir. 2003), for the proposition that a funda-
mental trial right is not properly waived when the pur-
ported waiver is based on erroneous legal advice.
Barrow may find some support in Moore, but only indi-
rectly. Moore held that a defendant’s decision to plead guilty
was not a valid waiver of his right to stand trial when that
decision was based upon his lawyer’s erroneous advice re-
garding the sentencing consequences of plea bargaining
versus going to trial. But crucially, the court in Moore also
required a showing of prejudice, i.e., that the erroneous
legal advice actually changed the outcome of the case. Id. at
241-43. In Moore, since the court was convinced that the
defendant would have elected to stand trial but for counsel’s
erroneous advice, defendant’s plea was invalidated. Id. Here,
it is clear that Barrow elected not to testify based on his
lawyer’s admittedly mistaken legal advice. However, as dis-
cussed above, it also seems clear that Barrow’s claims
regarding counsel’s failure to call him as a witness do not
entitle him to relief, even under de novo review.12
12
It is an interesting question whether defendant’s forfeiture of
his constitutional right to testify, standing alone, is sufficiently
“prejudicial” to warrant reversal of a conviction, or whether the
decision not to testify—even when based on erroneous legal ad-
vice—is not prejudicial unless it actually affects the outcome of the
trial. Seventh Circuit precedent seems to support the latter view
that defendants who allege they waived their right to testify still
must show that this waiver was prejudicial, i.e., that the failure
to testify affected the outcome of the trial. See, e.g., Rodriguez v.
United States, 286 F.3d 972, 983-84 (7th Cir. 2002).
No. 03-3622 21
V. CONCLUSION
We cannot say that the Illinois Supreme Court’s ruling
involved an unreasonable application of Supreme Court pre-
cedent under Strickland v. Washington. We therefore AFFIRM
the order of the district court denying Barrow’s petition for
a writ of habeas corpus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-15-05