William Thompkins, J v. Randy Pfist , 698 F.3d 976 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2467
W ILLIE M ARSHALL T HOMPKINS, JR.,
Petitioner-Appellant,
v.
R ANDY P FISTER,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 6252—George W. Lindberg, Judge.
A RGUED N OVEMBER 1, 2011—D ECIDED O CTOBER 23, 2012
Before B AUER, F LAUM, and SYKES, Circuit Judges.
S YKES, Circuit Judge. On December 23, 1980, a patrolling
police officer found the body of Gerald Holton lying
facedown in a ditch in an unincorporated area of Cook
County, Illinois. Holton’s hands were tied with tele-
phone cord, and he was shot in the head. The officer
discovered the body of Arthur Sheppard nearby, hidden
in a clump of trees, similarly executed with his hands
bound. For about three months, investigators had no
2 No. 10-2467
leads in the murders. A break came when an informant
implicated Pamela Thompkins in the killings. Pamela
Thompkins was arrested and immediately confessed
her role in assisting her former brother-in-law and their
mutual friend in a robbery that got out of hand and
became a double murder.
The police then arrested Pamela’s former brother-in-law
Willie Thompkins, Jr., and he too agreed to talk after
receiving Miranda warnings. At some point during the
interrogation, he took a phone call from an attorney
who had been contacted by his wife, but continued to
talk to police without invoking his right to counsel.
The next morning Thompkins was taken to court for
a bond hearing. Before the hearing took place, he con-
fessed his involvement in the murders of Holton and
Sheppard. A jury convicted him of two counts of
murder based on his confession, the testimony of eye-
witnesses, and evidence from the scene of the crime.
He was sentenced to death. After an unsuccessful direct
appeal and more than a decade and a half of state
postconviction proceedings, the Governor of Illinois
commuted the sentences of all death-row inmates, and
Thompkins was resentenced to life. He exhausted
his remaining postconviction claims and then sought
federal habeas relief on multiple grounds. The district
court denied the petition.
We authorized an appeal on two issues: (1) whether
Thompkins’s confession should have been suppressed
because it was taken in violation of his Sixth Amend-
ment right to counsel; and (2) whether trial counsel was
No. 10-2467 3
constitutionally ineffective for failing to interview
several potential witnesses. On the first issue, the
Illinois Supreme Court held that the right to counsel
had not yet attached when Thompkins confessed, so
the trial court properly declined to suppress the confes-
sion. On the second, the court rejected the claim of inef-
fective assistance of counsel based on procedural
default and lack of factual support. On federal habeas
review, these decisions are entitled to substantial defer-
ence. Because the state supreme court did not unrea-
sonably determine the facts or unreasonably apply
federal law, see 28 U.S.C. § 2254(d), we affirm the denial
of habeas relief.
I. Background
Thompkins’s case was tried in Cook County Circuit
Court more than three decades ago in June 1982. See
People v. Thompkins (Thompkins I), 521 N.E.2d 38, 42-45 (Ill.
1988) (direct appeal); People v. Thompkins (Thompkins II),
641 N.E.2d 371, 374-76 (Ill. 1994) (first postconviction
appeal). The key witnesses for the prosecution were
Keith Culbreath and Sandra Douglas. Our account of
the facts is based primarily on their testimony as
described in the Illinois Supreme Court’s opinions in
Thompkins I and Thompkins II.
On December 22, 1980, Willie Thompkins and Ronnie
Moore were at Douglas’s home in Harvey, Illinois, in
southern Cook County, hatching a plan to rob a couple
of cocaine dealers. Culbreath stopped by around noon.
Thompkins took him into a bedroom and asked if he
4 No. 10-2467
wanted to make some money by helping him “stick-up”
a “couple guys.” He agreed to participate but told
Thompkins he wanted to go home first and get a ski
mask so he couldn’t be identified. Thompkins told
him, “don’t worry about it, [I’ll] take care of that.”
Culbreath saw two guns on the bed, got cold feet, and
left Douglas’s house.
Later that day, Thompkins, Moore, and Douglas drove
to the home of Thompkins’s former sister-in-law Pamela
Thompkins (“Pamela”). Pamela arranged for Gerald
Holton and Arthur Sheppard to come over on the
pretense of doing a cocaine deal. When Holton and
Sheppard arrived, the group moved to the basement
where there was a small kitchen and recreation area.
Holton and Sheppard produced a baggie of cocaine
and placed it on the kitchen table. Thompkins then
stood in the door frame, pointed a gun at the two men,
and demanded that they put their hands on the table.
They did as they were told. Moore and Thompkins
then searched Holton and Sheppard, taking a gun, their
wallets, and a beeper. Moore and Thompkins bound
the hostages’ hands with telephone cord and dragged
them by their feet from the kitchen to the recreation
area. Douglas retreated upstairs.
A few hours passed. At some point Pamela joined
Douglas upstairs. While the two women were talking,
Douglas heard a loud banging sound in the basement,
followed by two gunshots. Pamela blurted out that she
“told them not to do it here, she knew it wouldn’t go
according to plans.” Douglas ventured part way down
No. 10-2467 5
the stairs and got a glimpse of a body she assumed
was Holton’s because she recognized his shoes. She
then saw Moore, holding a knife, lead Sheppard—alive
but still bound—in the direction of the garage. She
watched as the others dragged Holton’s body to the
garage. Thompkins, Moore, and Pamela then drove off in
two separate cars, with Sheppard as their hostage and
Holton’s body in the trunk of one of the cars. Douglas
estimated that this took place at around 8 or 9 p.m.
About 35 minutes later, Douglas received a phone
call from Thompkins telling her to “clean up a little bit”
in the basement. She was so repulsed by the scene that
she couldn’t do it. The next day, however, she went
with Pamela and Thompkins to the home of Delmar
Watkins. Thompkins ordered Douglas to help Watkins
wash the blood from the trunk of the car where
Holton’s body had been. The following day, Douglas
stood guard while Watkins sprayed the trunk of the
car with water.
In the meantime on December 23, a patrol officer
found the bodies of Holton and Sheppard, hands
bounds and shot in the head, lying about 65 feet apart in
an unincorporated area of Cook County near Markham,
Illinois. Investigators initially had no leads. A break in
the investigation came on March 13, 1981, when Doris
Ferguson told the police about a December 23 phone
call she received from Pamela Thompkins asking for
advice about how to remove bloodstains from her base-
ment and garage. When Ferguson pressed for an explana-
tion of how the bloodstains got there, Pamela spilled
6 No. 10-2467
the entire story. Police used Ferguson’s statement to
obtain a search warrant for Pamela’s home. At the
scene the officers saw bloodstains in the basement
and arrested Pamela, who gave a detailed confession
describing the entire sequence of events, including
Willie Thompkins’s involvement in the murders.
Based on Pamela’s statement, police arrested Thompkins
on March 17, 1981. That same day, a complaint for a
preliminary examination was filed against him. Late that
afternoon, Assistant States Attorney Paul Perry met with
Thompkins, gave him Miranda warnings, and asked if
he was willing to talk. Thompkins said he understood
his rights and agreed to talk to Perry. At some point
during the interrogation, an officer interrupted to say
that Attorney George Howard had called asking to
speak to Thompkins. Perry stopped the interview and
Thompkins left the room to return the attorney’s call.
Thompkins’s wife, Barbara, had contacted Howard to
ask for his help, but Howard later testified that he
was never actually retained.
When Thompkins returned to the interview room,
Perry asked him if he “still want[ed] to talk to us after
talking to George Howard?” Thompkins said that he
did. Perry reminded him of his right to have an attorney
present during the interview. Thompkins replied: “No,
that’s all right; I’ll talk to you now.” The interview re-
sumed, but Thompkins did not make any inculpatory
statements on March 17.
The next morning, March 18, the police took Thompkins
to court for a bond hearing and placed him in a lockup
No. 10-2467 7
near the courtroom where the hearing would be held.
Thompkins and Pamela were to appear in court at the
same time. The presiding judge called and passed the
case twice, apparently awaiting the arrival of a private
attorney for Thompkins; Pamela was represented by a
public defender. On the third go-round, Thompkins
consented to representation by Pamela’s public defender
for the limited purpose of the bond hearing. On this
understanding, the judge went ahead with the hearing
that day, though the evidence conflicts about whether
it took place in the late morning or early afternoon.
At some point during the morning court session, In-
vestigators Jim Houlihan and Ronald Bennett consulted
with ASA Perry about whether they could interview
Thompkins. Perry authorized the interrogation. After
fresh Miranda warnings, Thompkins confessed his in-
volvement in the murders. He agreed to repeat his state-
ment to Perry, so Houlihan left the lockup to summon
the prosecutor. Thompkins maintains in his habeas
petition that the interrogation occurred after the bond
hearing. However, Perry testified at the suppression
hearing that he saw the investigators enter the lockup
sometime between 11:30 a.m. and 1 p.m., before the
bond hearing was held. See Thompkins I, 521 N.E.2d at 50.
It is undisputed that when Perry came back to the
lockup, Thompkins was returning from a separate
holding area where inmates could make phone calls.
Thompkins told Perry that he had “just spoke[n] to his
lawyer on the phone” and no longer wanted to talk.
Because Pamela’s confession contained details about
Thompkins’s involvement in the murders, the two de-
8 No. 10-2467
fendants were tried separately.1 Thompkins moved
to suppress his confession, arguing that it was taken in
violation of his Sixth Amendment right to counsel.2
Investigators Houlihan and Bennett, ASA Perry, and
Attorney Howard testified at the suppression hearing
for the prosecution, and Thompkins testified on his
own behalf. The trial judge denied the motion.
Thompkins was convicted by a jury of two counts
of murder and related charges based largely on his con-
fession and testimony from Douglas and Culbreath,
corroborated by evidence obtained in the search of
Pamela’s home. The capital-punishment phase of the
case was tried to the court, and Thompkins was
sentenced to death.
On direct appeal the Illinois Supreme Court affirmed
the convictions and sentence, see Thompkins I, 521
N.E.2d at 63, and extensive postconviction proceedings
followed. The state supreme court rejected most of
1
Pamela Thompkins was convicted of conspiracy to commit
murder and armed robbery in a bench trial in which the
parties stipulated that she participated in the crimes because
Willie Thompkins and Ronnie Moore threatened to kill her
and her children. She was sentenced to four years in prison.
Moore remained at large until 1984 and was eventually con-
victed of murder and related offenses and sentenced to life.
2
He also sought suppression on Fifth Amendment grounds,
alleging a violation of his rights under Miranda v. Arizona, 384
U.S. 436 (1966). Our certificate of appealability covers only
the Sixth Amendment challenge to the admission of his con-
fession.
No. 10-2467 9
Thompkins’s postconviction claims, but ordered a new
sentencing hearing. See Thompkins II, 641 N.E.2d at 395.
The trial court reimposed the death sentence, and the
case returned to the state supreme court, which twice
remanded for further proceedings regarding the sen-
tence. See People v. Thompkins (Thompkins III), 690
N.E.2d 984 (Ill. 1998); People v. Thompkins (Thompkins IV ),
732 N.E.2d 553 (Ill. 2000).
Before the remand proceedings ordered in Thompkins IV
were concluded, the Governor of Illinois commuted
the sentences of all prisoners on death row, and
Thompkins was resentenced to two concurrent terms of
life in prison. After exhausting his remaining sentencing
claims in the state courts, see People v. Thompkins
(Thompkins V ), 876 N.E.2d 1088 (Ill. 2007), Thompkins
timely petitioned for federal habeas relief under § 2254
alleging multiple grounds for relief. The district court
denied the petition, and this appeal followed.
II. Discussion
Federal habeas relief from a state-court criminal judg-
ment “is not easy to come by,” Woods v. McBride, 430
F.3d 813, 816 (7th Cir. 2005), because the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”)
requires us to “defer to a great extent to the decisions of
the state courts,” Ben-Yisrayl v. Buss, 540 F.3d 542, 546
(7th Cir. 2008). A federal court may not grant a writ
of habeas corpus unless the challenged state-court adjudi-
cation “resulted in a decision that was contrary to, or
10 No. 10-2467
involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States,” or 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), (d)(2). Accordingly, we will not disturb a
state court’s application of federal law “unless it is ‘both
incorrect and unreasonable.’ ” Carter v. Thompson, 690
F.3d 837, 843 (7th Cir. 2012) (quoting Etherly v. Davis,
619 F.3d 654, 660 (7th Cir. 2010)). “Unreasonable” in this
context “ ‘means something like lying well outside the
boundaries of permissible differences of opinion.’ ” West
v. Symdon, 689 F.3d 749, 751 (7th Cir. 2012) (quoting
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)). The
state court’s factual determinations are entitled to a
presumption of correctness, and the petitioner has the
burden of overcoming this presumption by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1);
McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011).
We review the district court’s denial of a § 2254 petition
de novo. Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010).
Our review is limited to two questions on which
we granted a certificate of appealability: (1) whether
Thompkins’s confession was obtained in violation of
his Sixth Amendment right to counsel and thus should
have been suppressed; and (2) whether trial counsel’s
failure to interview and present the testimony of several
potential witnesses amounted to constitutionally inef-
fective assistance of counsel. The state supreme court
decided the first issue in Thompkins I and declined to
revisit this ruling in Thompkins II. The court decided
No. 10-2467 11
the second issue in Thompkins II, the first of the
postconviction appeals. Thompkins III, IV, and V were
later postconviction appeals on sentencing issues not
relevant here.
A. Thompkins’s Confession
It is well-established that the Sixth Amendment right
of an accused person “to have the Assistance of Counsel
for his defence,” U.S. C ONST. amend. VI, attaches at
“the initiation of adversary judicial criminal proceed-
ings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment,” Kirby
v. Illinois, 406 U.S. 682, 689 (1972). It is likewise settled
law that an appearance before a judicial officer in
which the accused is advised of the charges against
him constitutes the initiation of “adversary judicial crimi-
nal proceedings” for Sixth Amendment purposes. See
Rothgery v. Gillespie County, Tex., 554 U.S. 191, 198-99
(2008); Brewer v. Williams, 430 U.S. 387, 399 (1977). Every-
one agrees that Thompkins’s bond hearing on March 18,
1981—the day after his arrest—qualifies as the “initiation
of adversary judicial proceedings” against him for
Sixth Amendment purposes. Once the Sixth Amendment
right to counsel has attached, government agents may
not question an accused without his counsel present
unless he consents to be questioned without his counsel.
See Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
In Thompkins I the Illinois Supreme Court held that
Thompkins’s right to counsel had not yet attached at
12 No. 10-2467
the time he confessed, so the trial judge properly denied
the suppression motion. 521 N.E.2d at 50-52. In so
holding, the court identified the correct legal standard,
citing the Supreme Court’s decision in Kirby, and also
Moran v. Burbine, 475 U.S. 412 (1986); Maine v. Moulton, 474
U.S. 159 (1985); United States v. Gouveia, 467 U.S. 180 (1984);
and Brewer, 430 U.S. at 399. See Thompkins I, 521 N.E.2d
at 51. The court then rejected Thompkins’s argument
that the right to counsel attached immediately after his
arrest, when the complaint for preliminary examination
was filed on March 17. Id. The court held that under
Kirby Thompkins’s right to counsel attached at the bond
hearing, and because Thompkins confessed to Houlihan
and Bennett before the hearing was held, his confession
was properly admitted against him at trial.3 Id. The
court declined to revisit this ruling in Thompkins II,
the first postconviction appeal, because the affidavit
Thompkins submitted in support of his postconviction
motion contradicted his testimony at the suppression
hearing. 641 N.E.2d at 384.
Thompkins no longer argues, as he did in the state-
court proceedings, that his Sixth Amendment right to
counsel attached when the complaint for a preliminary
3
The Illinois Supreme Court also rejected Thompkins’s claim
that the confession should have been suppressed because it
was obtained in violation of his Fifth Amendment rights.
People v. Thompkins (Thompkins I ), 521 N.E.2d 38, 51-52 (Ill. 1988)
(affirming the trial court’s ruling that no violation of Miranda
had occurred). As we have noted, this issue is not within
the scope of our certificate of appealability.
No. 10-2467 13
examination was filed. The concession is prudent.
Under Illinois law a complaint for a preliminary exam-
ination does not initiate formal felony proceedings. See
725 ILL. C OMP. S TAT. 5/111-2(a) (“All prosecutions
of felonies shall be by information or by indictment.”);
People v. Garrett, 688 N.E.2d 614, 618-19 (Ill. 1997) (holding
that a complaint for preliminary examination is not a
formal charge in a felony case); People v. Mann, 794
N.E.2d 425, 431-32 (Ill. App. Ct. 2003) (observing that “a
complaint alleging a felony initiates no prosecution
whatsoever”). Indeed, the Supreme Court has noted that
in Illinois it is the preliminary hearing itself, not the
filing of a complaint for preliminary examination, that
initiates adversary judicial proceedings in felony cases.
See Moore v. Illinois, 434 U.S. 220, 228-29 (1977) (noting
that under Illinois law adversary felony proceedings
are initiated not at the time a complaint is filed but at
the subsequent preliminary hearing); Edwards v. Arizona,
451 U.S. 477, 480 n.7 (1981) (repeating this observation
from Moore).
Accepting the error in his prior argument, Thompkins
has shifted focus and now attacks the state court’s
finding that he confessed before the bond hearing. See
Thompkins I, 521 N.E.2d at 50 (describing the chronology
of events and finding that the confession was given
“immediately prior to defendant’s bond hearing”). He
argues that the evidence “plainly demonstrates” that
Houlihan and Bennett questioned him after the bond
hearing. This is a new factual claim, and it is arguably
procedurally defaulted because Thompkins did not
adequately develop it in the state court. See Suh v. Pierce,
14 No. 10-2467
630 F.3d 685, 690 (7th Cir. 2011); Stevens v. McBride, 489
F.3d 883, 894 (7th Cir. 2007). On direct appeal he argued
that his right to counsel attached when the complaint
was filed on March 17 and that he did not validly waive
his right to counsel after that point. See Thompkins I, 521
N.E.2d at 50-52. Later, in postconviction proceedings,
he submitted an affidavit claiming that the police
refused his request to call Attorney Howard, which
contradicted his testimony at the suppression hearing.
See Thompkins II, 641 N.E.2d at 384. He first raised the
claim about the chronology of events in his § 2254 petition.
Procedural default aside, the state court’s factual find-
ings are entitled to a presumption of correctness, and
Thompkins has the burden to overcome the presump-
tion by clear and convincing evidence. He has not done
so. It is true that the record does not establish the
precise time the bond hearing occurred. The transcript
from the hearing does not indicate when the hearing
started and ended, although at several points the
presiding judge said “this morning” when referring to the
warnings he was then providing to both defendants.
Thompkins testified at the suppression hearing that
Houlihan and Bennett questioned him in the afternoon.
On the other hand, ASA Perry testified that Houlihan
and Bennett interviewed Thompkins before the bond
hearing, and although he could not say precisely what
time the interview occurred, he estimated that he saw
the investigators enter the lockup sometime between
11:30 a.m. and 1 p.m. Based on Perry’s testimony, the
state supreme court found that Thompkins confessed
“immediately prior to [the] bond hearing.” Thompkins I,
521 N.E.2d at 50.
No. 10-2467 15
In evidentiary conflicts like this, our standard of
review requires that we defer to the state supreme
court’s decision. The state court was entitled to accept
Perry’s testimony about the chronology of events.
Thompkins has not rebutted the AEDPA presumption
that the state court’s fact-finding is correct; he has
simply pointed to evidence supporting his version of the
sequence and timing of events. Nor has he carried
his burden of demonstrating that the state court’s deter-
mination of the facts was unreasonable; identifying
conflicting evidence is not enough. Accordingly, the
district court properly denied habeas relief on the
Sixth Amendment right-to-counsel claim.
B. Ineffective Assistance of Counsel
Thompkins also contends that his trial counsel was
constitutionally ineffective for failing to interview
several witnesses who could have offered exculpatory
testimony. Under the familiar test established in
Strickland v. Washington, a claim of ineffective assistance
of counsel requires a showing that counsel “made errors
so serious that counsel was not functioning as the ‘coun-
sel’ guaranteed the defendant by the Sixth Amend-
ment” and that the “deficient performance prejudiced
the defense.” 466 U.S. 669, 687 (1984). Judicial scrutiny
of counsel’s performance is “highly deferential,” id. at
689, and under AEDPA we defer to the state court’s
application of Strickland on federal habeas review,
meaning that our evaluation of counsel’s performance
is “doubly deferential,” Knowles v. Mirzayance, 129 S. Ct.
1411, 1420 (2009).
16 No. 10-2467
Thompkins’s Strickland claim rests on an alleged
failure to investigate potential witnesses. Trial counsel
“has a duty to make reasonable investigations or to
make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691.
“In any ineffectiveness case, a particular decision not
to investigate must be directly assessed for reason-
ableness in all the circumstances, applying a heavy mea-
sure of deference to counsel’s judgments.” Id. Thompkins
argues that his trial counsel should have interviewed
and presented testimony from his wife, Barbara, as well
as Karen Hayes and Tina Pitts—all of whom, he says,
would have provided an alibi. He also claims his counsel
was ineffective for not interviewing Pamela Thompkins.
Regarding the claimed alibi, Thompkins contends
that Hayes and Pitts would have testified that he was
with them during the day on December 22, contradicting
the testimony of Douglas and Culbreath. He says his
wife, Barbara, would have testified that he was home
with her at 9 p.m. on December 22, around the time of
the murders. It is not clear what testimony Pamela
would have provided beyond what she told police in
her detailed confession, which inculpated Thompkins.
The Illinois Supreme Court rejected Thompkins’s Strick-
land claim as to Hayes and Pitts on procedural grounds
because he did not submit affidavits from them with
his postconviction petition, as required by Illinois law.
Thompkins II, 641 N.E.2d at 378; see also 725 ILL. C OMP.
S TAT. 5/122-2 (1964). This is an independent and
adequate state ground for rejecting this part of the Strick-
No. 10-2467 17
land claim, which bars review in federal court unless
Thompkins can show cause and prejudice or that a mis-
carriage of justice would result if we do not review
the claim. See Cone v. Bell, 556 U.S. 449, 465-66 (2009);
Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). “A
state law ground is independent when the court
actually relied on the procedural bar as an independent
basis for its disposition of the case.” Kaczmarek v.
Rednour, 627 F.3d 586, 592 (7th Cir. 2010). “A state
law ground is adequate when it is a firmly established
and regularly followed state practice at the time it
is applied.” Id.The state supreme court plainly relied on the affidavit
rule to bar Thompkins’s claim that his counsel was inef-
fective for not interviewing Hayes and Pitts. See Thompkins
II, 641 N.E.2d at 378 (“The defendant has failed to
submit affidavits from Pitts and Hayes themselves, how-
ever, and thus we are precluded from considering
this issue further.”). Moreover, the affidavit rule is estab-
lished by state statute, 725 ILL. C OMP. S TAT. 5/122-2, and
regularly followed by Illinois courts, see, e.g., People v.
Guest, 655 N.E.2d 873, 883 (Ill. 1995).4 Thompkins must
4
Although the Illinois Supreme Court has suggested that
noncompliance with the affidavit rule might be forgiven in
certain circumstances, People v. Reeves, 107 N.E.2d 861, 864 (Ill.
1952), that does not mean that the rule is not regularly
followed and is therefore inadequate, Promotor v. Pollard, 628
F.3d 878, 886-87 (7th Cir. 2010). Discretionary state procedural
(continued...)
18 No. 10-2467
therefore establish cause for and prejudice from the
procedural default.5 He has a steep hill to climb:
Cause for a default is ordinarily established by show-
ing that some type of “external impediment” pre-
vented the petitioner from presenting his claim.
Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004).
Prejudice is established by showing that the violation
of the petitioner’s federal rights “worked to his
actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.” Id.Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010).
Thompkins argues that Hayes and Pitts were impossible
to find after the trial and his inability to locate them
amounted to an “external impediment” preventing his
compliance with the affidavit rule. But the rule requires
the petitioner to include either affidavits from the
witnesses who will support the petitioner’s postconvic-
tion claims or a statement explaining why affidavits
are unavailable. See 725 ILL. C OMP. S TAT. 5/122-2.
Thompkins’s petition for postconviction relief included
neither; he did not submit affidavits from Hayes and
4
(...continued)
rules may still constitute independent and adequate state
grounds. Beard v. Kindler, 130 S. Ct. 612, 618 (2009).
5
Thompkins does not argue that without federal habeas
review, he will suffer a fundamental miscarriage of justice, so
we do not address this ground for relief from the procedural
default.
No. 10-2467 19
Pitts, nor did he explain why affidavits from them
were unavailable.
Even assuming that Thompkins could establish cause
for the procedural default, he cannot establish prejudice.
The only indication of the testimony Hayes and Pitts
would have given is Thompkins’s own affidavit
asserting that they would have provided an alibi. This
falls far short of establishing prejudice. A Strickland
claim based on counsel’s failure to investigate a
potential witness requires a specific, affirmative
showing of what the missing witness’s testimony
would be, and this typically requires at least an affidavit
from the overlooked witness. See Wright v. Gramley,
125 F.3d 1038, 1044 (7th Cir. 1997); United States ex rel.
McCall v. O’Grady, 908 F.2d 170, 173 (7th Cir. 1990);
United States ex rel. Cross v. DeRobertis, 811 F.2d 1008,
1016 (7th Cir. 1987). Thompkins’s own affidavit is
not enough.
Thompkins also challenges the state supreme court’s
rejection of his claim that counsel was ineffective for
failing to interview Pamela. On this aspect of the
Strickland claim, the state supreme court began by
noting that counsel had successfully argued for
severance because Pamela’s defense was antagonistic
to Thompkins’s; based on the contents of her confession,
her testimony would have been harmful rather than
helpful to his case. See Thompkins II, 641 N.E.2d at 377-
78. The court easily rejected Thompkins’s evidence to
the contrary; he relied on an unauthenticated hand-
written letter dated January 26, 1983, in which
Pamela purported to recant her statement implicating
20 No. 10-2467
Thompkins in the murders. Id. The court said the
letter was of “doubtful utility” because it was dated
six months after Thompkins’s trial and Pamela had “re-
canted the recantation” the very next day, on January 27,
in a stipulation at the beginning of her own trial. Id.Under these circumstances, the court did “not believe
that counsel may be faulted” for failing to “seriously
consider the prospect of calling Pamela as a
defense witness.” Id. at 377. We, in turn, can find no
fault with the state court’s decision on this point. To
the contrary, it was eminently reasonable, and
Thompkins has given us no good reason to question it.
That brings us to Barbara, and whether trial counsel
was ineffective for not calling her as an alibi witness.
Thompkins claims she would have testified that he
was home with her sometime around 9 p.m. on
December 22, 1980. Barbara stated in her affidavit that
she was interviewed by Thompkins’s defense attorney
and told him she “was willing to testify.” She also said
she told counsel that “because I was a Jehovah’s wit-
ness, I could not lie,” and the interview proceeded
no further. Barbara explained in her affidavit that this
statement was meant to reinforce her religious beliefs,
not to suggest that she thought she “would have to lie
about anything to testify for Willie.” She said if counsel
had questioned her further, she would have told him
that “Willie must have been home after 9:00 in the
evening on December 22, 1980, because that was when
I would get up from my nap to go to work, and Willie
drove me to work that night.”
No. 10-2467 21
Setting aside the question of whether trial counsel
misinterpreted Barbara’s reference to her religious
beliefs, the state supreme court quite reasonably con-
cluded that it “should defer to counsel’s decision not
to present [Barbara’s] testimony.” Id. at 378. Her affidavit
makes it clear that she could not provide a clean alibi.
She claimed only that Thompkins “must have been
home after 9:00 in the evening on December 22” because
that was when she ordinarily got up from her nap to go
to work, and he drove her to work that evening. That
is not incompatible with Douglas’s testimony that the
murders occurred around 8 or 9 p.m. Barbara’s affidavit
was at best equivocal and not inconsistent with
Douglas’s testimony. It does not call into question
the reasonableness of the state supreme court’s deci-
sion not to fault counsel for not presenting her as a
witness. Indeed, Strickland requires this kind of
deference to counsel’s strategic decisions. When con-
sidered through the lens of our doubly deferential
standard of review, Barbara’s affidavit does not come
close to establishing that the state supreme court unrea-
sonably applied Strickland.
A FFIRMED.
10-23-12