Wright, Patrick H. v. Walls, Jonathan R. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-3066 & 01-3157
Patrick Wright,
Petitioner-Appellee/
Cross-Appellant,
v.
Jonathan Walls,
Respondent-Appellant/
Cross-Appellee.
Appeals from the United States District Court
for the Central District of Illinois.
No. 93 C 2105--Harold A. Baker, Judge.
Argued February 26, 2002--Decided April 24, 2002
Before Flaum, Chief Judge, and Easterbrook
and Williams, Circuit Judges.
Flaum, Chief Judge. A jury convicted
Patrick Wright of murder, attempted
murder, attempted rape, armed robbery,
home invasion and residential burglary.
The trial court sentenced him to death.
Following the exhaustion of all state
remedies, Wright petitioned for a writ of
habeas corpus alleging numerous
constitutional errors at both the trial
and sentencing phases. The district court
vacated Wright’s death sentence because
the sentencing judge impermissibly failed
to consider mitigating evidence related
to Wright’s traumatic childhood. The
district court also affirmed Wright’s
conviction, holding that Wright did not
receive ineffective assistance of counsel
at trial./1 Both Wright and the State
of Illinois appeal. For the reasons
stated herein, we affirm.
I. Background
On June 6, 1983, Wright entered Carol
Specht’s apartment, put a knife to her
throat and attempted to rape her. After
binding and gagging Carol, Wright
proceeded through the rest of the
Spechts’ home when he discovered Carol’s
daughter, Connie. Wright forced Connie
into her mother’s bedroom where he
sexually abused her. Wright later slashed
Connie’s throat multiple times and
stabbed Carol in the back. Connie
survived, but Carol died./2 Wright was
charged with murder, attempted murder,
attempted rape, armed robbery, home
invasion and residential burglary.
At trial, Wright’s counsel did not
contest the fact that Wright committed
the crimes charged. Instead, trial
counsel argued that Wright suffered from
a mental disease involving a fetish for
women’s shoes. The sole evidence offered
at trial supporting this theory was
Wright’s testimony that he had a women’s
shoe fetish, that he suffered from the
fetish since the age of seven, that his
adoptive mother beat him because of his
mental impairment, and that he had been
institutionalized in various mental
hospitals since the age of 13. Wright
also testified, contrary to his
tapedconfession, that he had entered the
Spechts’ apartment seeking women’s shoes
for sexual gratification. Dr. William
Fowler testified for the State in
rebuttal. He stated that Wright did not
suffer from a mental disease at the time
of the offense, but rather suffered from
a non-pathological psychosexual disorder.
The trial court provided the jury with
general verdict forms, including verdicts
of not guilty, not guilty by reason of
insanity, guilty but mentally ill
("GBMI"), and guilty for each of the
offenses. The jury found Wright guilty of
all the crimes charged.
Wright waived a sentencing jury. At the
sentencing hearing, Wright offered the
testimony of Dr. Arthur Traugott, who
opined that although Wright was able to
appreciate the wrongfulness of his acts,
Wright’s shoe fetish controlled his
lifestyle and was the cause of prior
incarceration and institutionalization.
The sentencing judge ultimately imposed
the death penalty. Before doing so,
however, the sentencing judge commented
extensively on the factors that he would-
- and would not--consider in determining
an appropriate sentence. Initially, the
court focused on Wright’s traumatic
childhood, stating:
I don’t think any reasonable person who
has heard all of the evidence in this
case can feel anything but sympathy for
the pathetic creature, Patrick Wright,
who has been paraded through the
courtroom in the trial of this case. He
is a man who has wandered the forty
wretched years of his life from
institution to institution, from prison
to prison; the evidence indicating that
his fetish for women’s shoes being
perhaps the one and only purpose for his
life.
After acknowledging Wright’s "pathetic"
history, the sentencing judge made three
statements giving rise to the current
appeal. First, the sentencing judge noted
that "sympathy for the defendant [was]
not an appropriate consideration" in
determining Wright’s sentence. Second,
the judge listed all of the factors that
he would exclude from the death penalty
calculus:
To repeat in part, any matters dealing
with sympathy, outrage, who the victim
was, all the matters that I just
mentioned have no bearing on whether the
defendant shall receive the death
penalty. And again, I note for the record
that I have cited them so the record is
clear that I have rejected them, and I
have disregarded them in making my
decision.
Third, in weighing the mitigating and
aggravating circumstances according to
Illinois law, the sentencing judge stated
that he was unable to "determine the
existence of any mitigating factors
within or without the statute with the
exception of [extreme mental emotional
disturbance at the time of the crime.]"
Wright appealed his conviction and
sentence directly to the Illinois Supreme
Court. In his appeal, Wright raised eight
separate issues, only one of which is
relevant to this appeal. Wright argued
that in imposing the death sentence, the
sentencing court failed to consider all
of the mitigating evidence presented by
Wright, including evidence related to his
troubled youth. The Illinois Supreme
Court affirmed Wright’s death sentence.
The Court first acknowledged that lower
courts must consider "any mitigating
facts in the record of the trial as well
as any which the defendant offers at the
sentencing hearing." People v. Wright,
490 N.E.2d 640, 656 (Ill. 1985) ("Wright
I") (citing People v. Lewis, 88 Ill. 2d
129, 144 (1981)). However, the Illinois
Supreme Court ruled that the sentencer
took account of all of the mitigating
evidence because (1) the State
specifically requested the court to
consider all of the evidence presented
during trial, and (2) the sentencing
judge’s comments that he found one
mitigating factor--extreme emotional
disturbance at the time of the crime--
indicated that he considered "the
defendant’s troubled youth and its
contribution, if any, to the mental
disturbance existing at the time the
crime was committed." Id. at 656.
Following the exhaustion of all appeals
and applications for post-conviction
relief in state court,/3 Wright
petitioned for a writ of habeas corpus
based upon numerous arguments. The
current appeal deals with two of them.
Wright first claimed that the sentencer’s
comments during sentencing conveyed a
misapprehension of the law that precluded
him from considering evidence of Wright’s
traumatic childhood in mitigation. Wright
also asserted that trial counsel was
ineffective for failing to argue,
investigate and introduce during the
liability phase evidence of Wright’s men
tal health problems. Although counsel had
investigated Wright’s mental health
history, Wright relied on approximately
50 pages of additional medical records
obtained after trial that indicated
limited intelligence, psychiatric drug
use, and severe physical abuse by both
his natural and adoptive parents.
The district court granted the writ with
respect to Wright’s death sentence,
holding that the trial judge’s failure to
consider as mitigation Wright’s traumatic
childhood and mental health problems
violated Eddings v. Oklahoma, 455 U.S.
104 (1982). The district court reasoned:
[T]he judge specifically stated that he
could discern no mitigating factors
except for [Wright’s] extreme emotional
disturbance at the time he committed the
offense. But [Wright] presented evidence
of a horrible childhood; surely that
qualifies as mitigation. If the judge
considered this evidence, as he was
required to do, why would he say that no
mitigating factors existed besides
[Wright’s] emotional disturbance at the
time of the crime? Simply put, he would
not. He might find the mitigation of
little weight, but he would not say that
it did not exist. To derive any other
meaning from his plain words requires
tortuous reasoning.
Wright v. Cowan, 149 F. Supp. 2d 523,
537-38 (C.D. Ill. 2001).
The district court denied relief for
Wright’s ineffective assistance of
counsel claim. Initially, the district
court ruled that Wright had procedurally
defaulted certain aspects of the claim
for failing to raise it before the
Illinois State courts. Specifically, the
court noted that in his first petition
for post-conviction relief, Wright did
not argue that counsel was ineffective
for focusing on Wright’s alleged
insanity, as opposed to pursuing a GBMI
verdict. Because the Illinois Supreme
Court held that Wright had waived the
issue, and because that was an adequate
and independent state ground, the
district court limited its
ineffectiveness inquiry to the issue of
omitted evidence and did not address the
wisdom of trial counsel’s strategy to
pursue exclusively an insanity defense.
With these parameters in place, the
district court held that although trial
counsel was not perfect, Wright could not
satisfy the rigorous standards of Strick
land v. Washington, 466 U.S. 668 (1984).
Wright, 149 F. Supp. 2d at 532-34. Both
parties appeal.
II. Discussion
We note that the Antiterrorism and
Effective Death Penalty Act ("AEDPA")
does not apply in the present case
because Wright filed his petition for a
writ of habeas corpus prior to the
AEDPA’s effective date. See Lindh v. Mur
phy, 521 U.S. 320, 336 (1997); Everett v.
Barnett, 162 F.3d 498, 500 (7th Cir.
1998). Accordingly, we apply pre-AEDPA
standards to this appeal: we presume
correct the state court’s determination
of historical factual issues, see Porter
v. Gramley, 112 F.3d 1308, 1316 (7th Cir.
1997), and we review de novo questions of
law or mixed questions of law and fact
considered by state courts. Shasteen v.
Saver, 252 F.3d 929, 933 (7th Cir. 2001).
A. Vacation of Death Sentence
The first issue we must address is
whether the district court properly
vacated Wright’s death sentence because
the sentencing judge impermissibly
refused to consider proposed mitigating
evidence related to Wright’s background.
Wright argues that this ruling was
correct because the sentencing court’s
comments unambiguously reveal that he
could discern no mitigating factor beyond
Wright’s extreme emotional disturbance at
the time of the crime. According to
Wright, this necessarily means that the
sentencing judge did not consider
Wright’s traumatic history. In response,
the State maintains that although the
judge had to entertain Wright’s traumatic
background, he was not required to grant
that evidence any amount of weight. The
State interprets the sentencing court’s
remarks as considering but rejecting
Wright’s mitigating evidence.
Both parties agree that Eddings v.
Oklahoma, 455 U.S. 104 (1982), and its
progeny provide the governing legal
principles in this case. In Eddings, the
Supreme Court held that because
imposition of a death sentence
demandsindividualized consideration of
each defendant’s circumstances, the
sentencing court must admit and consider
all relevant mitigating evidence. Id. at
114-15 ("Just as the State may not by
statute preclude the sentencer from
considering any mitigating factor,
neither may the sentencer refuse to
consider, as a matter of law, any
relevant mitigating evidence.") (emphasis
in original); Lockett v. Ohio, 438 U.S.
586, 604 (1982) ("[W]e conclude that the
Eighth and Fourteenth Amendments require
that the sentencer . . . not be precluded
from considering, as a mitigating factor,
any aspect of a defendant’s character or
record and any of the circumstances of
the offense that the defendant proffers
as a basis for a sentence less than
death.") (emphasis in original).
Because the Illinois Supreme Court
considered Wright’s Eddings argument on
direct appeal, we must examine the State
Court’s disposition of the issue. The
Illinois Supreme Court held that the
sentencing court necessarily considered
Wright’s history because the State
specifically asked the judge to take into
account all of the evidence presented
during the liability phase. Wright I, 490
N.E.2d at 656. The Illinois Supreme Court
also held that the sentencer’s finding of
one mitigating factor (extreme emotional
disturbance at the time of the crime)
"indicate[d] that the court did consider
the defendant’s troubled youth and its
contribution, if any, to the mental
disturbance existing at the time that the
crime was committed." Id. In our view,
the Supreme Court of Illinois’ holding
that the sentencing court "considered all
potential mitigating facts in the record,
including those adduced at trial," id.,
as well as the Court’s proffered
justifications for that holding, do not
withstand scrutiny. Foremost, the
Illinois Supreme Court never addressed
the truly critical statements in this
case, i.e., those where the sentencing
judge set forth the specific evidence
that he would not consider in determining
Wright’s sentence. The fact that the
State requested the sentencer to take
into account all of the evidence
presented at trial is immaterial when
coupled with the specific evidence the
sentencing court stated he would
disregard. Had the sentencing court
agreed to take into account all of the
evidence at trial --and said nothing
else--he may have complied with Eddings.
See, e.g., United States v. Mahoney, 859
F.2d 47, 49-50 (7th Cir. 1988)
(sentencing judge need not explicitly
state every fact he is relying on to pass
sentence). But this is not a case where
the sentencer simply neglected to state
for the record all of the evidence
considered in mitigation./4 Rather, this
is a case where the sentencer highlighted
all of the evidence he would not
consider--including evidence of Wright’s
traumatic history--a practice that
Eddings clearly prohibits, and an issue
not addressed by the Illinois Supreme
Court.
The sentencing judge was quite clear in
what he deemed appropriate factors for
consideration in determining Wright’s
sentence, stating that:
any matters dealing with sympathy,
outrage, who the victim was, all the
matters that I just mentioned [such as
evidence of Petitioner’s "wretched" and
"pathetic" life] have no bearing on
whether the defendant shall receive the
death penalty. And again, I note for the
record that I have cited them so the
record is clear that I have rejected
them, and I have disregarded them in
making my decision.
People v. Wright, No. 83-CF-70, Tr. of
Sent. Hrg., at 7 (emphasis added). This
is the language of exclusion--the very
practice that the Supreme Court held
constitutionally infirm in Eddings.
Indeed, the sentencing judge’s remarks in
this case are strikingly similar to those
in Eddings, where the judge stated that
he could not "be persuaded entirely by
the fact . . . that the youth was sixteen
years old when this heinous crime was
committed. Nor can the Court in following
the law, in my opinion, consider the fact
of this young man’s violent background."
Eddings, 455 U.S. at 124 (Burger, C.J.,
dissenting). In both cases, the
sentencing judges’ statements reflect the
wholesale exclusion of certain evidence
in determining the appropriate sentence.
Eddings makes clear that this practice is
improper because it deprives the criminal
defendant of the particularized
assessment necessary in capital
sentencing hearings.
The sentencing judge’s additional
comments, particularly the court’s
ultimate conclusion that only one
mitigating factor existed, foreclose
distinct interpretations. The sentencing
judge stated that he had "given great
consideration to whether other mitigating
factors exist," and that he was "unable
to determine the existence of any
mitigating factors within or without the
statute with the exception [of
defendant’s extreme mental distress at
the time of the offense.]" As the
district court noted, Wright presented
substantial evidence of a troubled
childhood, which clearly qualifies as
evidence offered by the defendant in
mitigation./5 Although the sentencing
judge was not required to afford Wright’s
history any weight, he was required to
consider it. To suggest that the finding
of extreme mental and emotional
disturbance at the time of the crime
necessarily encompassed the evidence of
Wright’s pitiful life renders the words
"at the time of the crime" meaningless.
See Wright, 149 F. Supp. 2d at 537. The
fact that the sentencer found only one
mitigating factor either "within or
without the statute" requires the
opposite conclusion than the one reached
by the Illinois Supreme Court. To find
from these statements that the sentencing
judge actually considered Wright’s
history requires "tortuous reasoning."
Id. at 538.
In dissent, Judge Easterbrook quarrels
with this analysis and argues that the
sentencing judge’s remarks illustrate
that he considered--but afforded no
weight to--Wright’s mitigating evidence,
including evidence describing his
troubled background. However, this
approach suffers from an unavoidable
inconsistency. As discussed previously,
the sentencing judge linked evidence
related to Wright’s history with other
evidence he would not consider, such as
sympathy, outrage, who the victim was
(including her activities within the
community and the recognition that she
received for those activities), and
certain statements Wright made to the
media. If Judge Easterbrook’s formulation
of the sentencing judge’s statements is
correct, then the sentencing judge also
considered but rejected sympathy,
outrage, who the victim was, and
statements made to the media, a practice
that would have been improper. See, e.g.,
People v. Bernette, 197 N.E.2d 436, 443
(Ill. 1964) (evidence regarding the
victim or her family improper because it
bears no relationship to guilt or
innocence or the appropriate punishment);
People v. Holman, 469 N.E.2d 119, 135
(Ill. 1984) (improper to describe the
victim as "unusually bright" or to state
that the victim had received numerous
awards); People v. Del Vecchio, 475
N.E.2d 840 (Ill. 1985) (jury instruction
precluding consideration of sympathy or
prejudice was proper). Thus, either the
sentencer disregarded all of the
categories of evidence mentioned, which
would violate Eddings, or he considered
but rejected all of the evidence, a
course of action raising other concerns.
Perhaps recognizing this inconsistency,
the state interprets the sentencer’s
remarks as excluding only sympathy for
the defendant, a practice that the
Constitution permits. See California v.
Brown, 479 U.S. 538 (1987). While it is
true that the individualized assessment
regarding the appropriateness of a death
sentence should not be based on an
emotional response to the mitigating
evidence, the sentencer must exercise
great caution not to ignore the evidence
giving rise to such responses. See id. at
545-46 (O’Connor, J., concurring). Here,
the sentencing judge used language such
as "will have no bearing" and
"disregarded" in the context of Wright’s
mitigating evidence, and the sentencing
judge did not limit his remarks to the
emotional response generated by Wright’s
background. In short, the sentencer’s
remarks are so imbued with exclusionary
language as to violate the constitutional
requirements announced in Eddings.
Judge Easterbrook notes that cases such
as Parker v. Dugger, 498 U.S. 308 (1991),
Wainwright v. Goode, 464 U.S. 78 (1983),
and Rivera v. Sheriff of Cook County, 162
F.3d 486 (7th Cir. 1998), hold that a
reviewing court’s characterization of
what the trial judge found is one of
historical fact. While that proposition
is unassailable, it does not mean that
state courts act correctly in every
instance. Indeed, in Parker, the Supreme
Court reversed a decision that was not an
accurate factual characterization of what
transpired at sentencing. Parker, 498
U.S. at 318. Parker involved a capital
sentencing judge who weighed aggravating
and mitigating factors pursuant to
Florida law. On appeal, the Florida
Supreme Court held that the judge had
erroneously relied upon two aggravating
factors. However, rather than remanding
the case for resentencing, the Florida
Supreme Court held that the absence of
any nonstatutory mitigating factors made
re-weighing unnecessary and affirmed the
death sentence. The Supreme Court of the
United States ultimately reversed,
finding that the "Florida Supreme Court
erred in its characterization of the
trial judge’s findings, and consequently
erred in its review of Parker’s
sentence." Id. at 318. Parker instructs
appellate courts to review the entire
record when evaluating a sentencing
judge’s comments: accurate factual
characterization depends upon "an
examination of the transcript of the
trial and sentencing hearing, and the
sentencing order." Id. at 320. The
Supreme Court ultimately reversed because
the Florida Supreme Court disregarded
evidence that contradicted its factual
finding. "What the Florida Supreme Court
could not do, but what it did, was to
ignore the evidence of mitigating
circumstances in the record and misread
the trial judge’s findings regarding
mitigating circumstances, and affirm the
sentence based on a mischaracterization
of the trial judge’s findings." Id.
The same is true in the present case,
where the Supreme Court of Illinois did
not address the sentencing judge’s
comments, but instead relied exclusively
on the finding of one mitigating factor
and the fact that the government asked
the court to evaluate all of the evidence
produced at trial. Not considering the
trial court’s comments in this case is
tantamount to not considering the
evidence of nonstatutory mitigating
circumstances in Parker. When viewed in
isolation, the State’s request that the
government consider all of the evidence
produced at trial provides adequate
justification for the conclusion that the
sentencer accounted for Wright’s history.
But the sentencing judge went further in
this case, listing all of the categories
of evidence he would not consider.
Accordingly, even accepting that we are
presented with a question of historical
fact, we believe that the Supreme Court
of Illinois’ finding "is not fairly
supported by the record." Parker, 498
U.S. at 320.
We also note that the fact/law
distinction in this case is not as
pristine as Judge Easterbrook suggests.
In Parker, the basis for the Supreme
Court’s holding was that the legality of
the defendant’s sentence did not
necessarily follow from "a resolution of
the question of what the trial judge
found." Id. This factor made the
interpretation of the sentencing court’s
remarks a question of fact. Here,
however, the question is whether the
sentencing court failed to consider
Wright’s mitigating evidence, and
resolution of that question in the
affirmative necessarily means that the
sentencing judge violated the
constitutional requirements announced in
Eddings. To say that we cannot evaluate
as a matter of law whether the sentencer
complied with Eddings because the Supreme
Court of Illinois decided as a matter of
historical fact that the sentencer
complied with Eddings engages in a
circularity not required by Parker.
With due deference to the appropriate
restraints of federalism and the limited
role of this court on habeas review,
there can be no question that the law
clearly requires a sentencing judge to
evaluate the individualized circumstances
of each capital defendant prior to
imposing the death penalty. Because the
sentencing court’s statements reflect the
wholesale exclusion of evidence offered
by Wright in mitigation, we conclude with
constitutionally grounded certainty that
Wright did not receive the individualized
sentence as mandated by Eddings.
B. Ineffective Assistance of Counsel
Wright cross-appeals the district
court’s decision to deny relief for
ineffective assistance of trial counsel.
Wright argues that trial counsel was
ineffective for failing to discover,
investigate and introduce 50 pages of
medical records describing Wright’s
mental health history that would have
both corroborated his trial testimony and
supported a GBMI verdict. According to
the district court, the 50 additional
pages contained information that Wright
had I.Q. test scores of 73 to 81, which
classifies him as a person of borderline
mental deficiency. The records further
discuss Wright’s history of taking
prescription psychiatric drugs, his
testimony regarding his traumatic life
before his adoption at age four, and the
fact that his adoptive parents abused
him. Wright alleges that trial counsel’s
performance fell below an objective
standard of reasonableness because there
is no valid strategic reason for failing
to investigate and introduce Wright’s
hospital records. In addition, Wright
challenges trial counsel’s failure to
investigate evidence regarding Wright’s
alleged organic brain damage. With
respect to prejudice, Wright maintains
that there is a reasonable probability
that a jury would have returned a verdict
of guilty but mentally ill had the jury
considered evidence beyond Wright’s self-
serving testimony.
In response, the State argues that this
issue is procedurally defaulted. In his
first petition for post-conviction relief
before the Illinois courts, Wright argued
that counsel was ineffective for failing
to introduce certain records during the
sentencing phase. In a second post-
conviction petition before the Illinois
courts, Wright challenged trial counsel’s
decision not to pursue a GBMI verdict,
but the Illinois Supreme Court held that
he had waived the claim for failing to
raise it in his first petition. Wright
III, 723 N.E.2d at 239. The district
court ruled that the procedural default
constituted an adequate and independent
ground for relief and refused to address
counsel’s failure to raise a GBMI
defense. Accordingly, the district court
limited its ineffectiveness inquiry "to
the issue of omitted evidence pertaining
to Wright’s mental health." Wright, 149
F. Supp. 2d at 533.
We assess ineffective assistance of
counsel claims under the standards
enunciated by the Supreme Court
inStrickland v. Washington, 466 U.S. 668
(1984). Under Strickland, a defendant
must establish (1) that counsel’s
performance fell below an objective
standard of reasonableness, and (2) that
the deficient performance resulted in
prejudice to the defendant. Id. at 687.
To demonstrate deficient performance, a
defendant must show that he has been
denied his Sixth Amendment right to a
fair trial as the result of the
incompetence of defense counsel. See,
e.g., Eddmonds v. Peters, 93 F.3d 1307,
1313 (7th Cir. 1996). "This requires
showing that counsel made errors so
serious that counsel was not functioning
as the ’counsel’ guaranteed the defendant
by the Sixth Amendment." Strickland, 466
U.S. at 687. In this context, it is not
reasonable to judge counsel’s performance
based on "hindsight." Instead, we
evaluate counsel’s performance based upon
her perspective at the time of trial. Id.
at 689.
Before reaching the merits of Wright’s
appeal, we must clarify what ineffective
assistance claims survive. In our view,
the district court correctly held that
trial counsel’s failure to urge a GBMI
verdict was procedurally defaulted. See
Wright, 149 F. Supp. 2d at 533. The
Illinois Supreme Court held that Wright
had failed to raise this issue in his
first petition for post-conviction relief
and that it was therefore procedurally
defaulted. Wright III, 723 N.E.2d at 239.
This is an adequate and independent state
justification, a decision that we must
respect even in the pre-AEDPA context of
this case. See Coleman v. Thompson, 501
U.S. 722, 729 (1991). Accordingly, we
will not reach the merits of whether
trial counsel was ineffective for failing
to raise this issue.
That leaves trial counsel’s failure to
obtain the 50 pages of additional medical
records. Here, we note that this is not a
case where trial counsel wholly failed to
investigate--or cursorily investigated--
the defendant’s insanity. See Brewer v.
Aiken, 935 F.2d 850 (7th Cir. 1991);
Harris v. Dugger, 874 F.2d 756, 763 (11th
Cir. 1989); Profitt v. Waldron, 831 F.2d
1245, 1248-49 (5th Cir. 1987). Wright’s
trial counsel took reasonable steps to
identify and locate his mental health
records. The record in this case reveals
that trial counsel received an
"extensive" number of psychiatric
documents concerning Wright’s mental
health, and that trial counsel’s access
to the documents he did possess enabled
him to conduct an extensive cross-
examination of the State’s psychiatric
expert who testified at trial. See Wright
II, 594 N.E.2d at 280-81. At the time of
trial, counsel had received most of
Wright’s medical records. Because certain
state agencies and mental institutions
neglected to turn over all of the records
does not mean that counsel acted
deficiently. An attorney’s investigation
need not be unlimited in scope or
unerring in execution, but merely
reasonable. Rogers v. Israel, 746 F.2d
1288, 1294 (7th Cir. 1984). We need not
decide whether Wright was prejudiced by
the failure to obtain the additional
records because we hold that counsel’s
performance did not fall below an
objective standard of reasonableness.
Strickland, 466 U.S. at 697.
III. Conclusion
Because the sentencing judge excluded
from consideration mitigating evidence
about Wright’s traumatic history, we
AFFIRM the district court’s decision
vacating the death penalty. We also AFFIRM
the decision to deny relief based upon
ineffective assistance of counsel. Trial
counsel obtained most of Wright’s medical
records, and these efforts did not fall
below an objective standard of
reasonableness.
FOOTNOTES
/1 The district court addressed seven distinct
claims in its opinion; however, the parties raise
only two on appeal.
/2 For a more thorough recitation of the facts of
Wright’s crime, see People v. Wright, 490 N.E.2d
640, 642-44 (Ill. 1985). We have recounted only
those facts necessary for the disposition of this
appeal.
/3 Wright initially filed for post-conviction relief
in Illinois State court. That petition was denied
without a hearing, a decision that the Illinois
Supreme Court affirmed on appeal. See People v.
Wright, 594 N.E.2d 276 (1992) ("Wright II"). At
that point, Wright petitioned for a writ of
habeas corpus in federal court. Shortly there-
after, however, Wright filed a second amended post-
conviction petition in state court and moved the
district court to stay the proceedings pending
exhaustion of state court remedies. The Illinois
trial court eventually dismissed Wright’s second
amended petition. Wright again appealed to the
Illinois Supreme Court, which affirmed the dis-
missal. See People v. Wright, 723 N.E.2d 230
(Ill. 1999) ("Wright III").
/4 It is true that some sentencing judges might deem
Wright’s traumatic background an aggravating--as
opposed to a mitigating--circumstance. (Dissent,
slip op. at 20-25) However, notwithstanding Judge
Easterbrook’s skepticism, the individualized
assessments necessary in capital sentencing
proceedings required the sentencer to take into
account all of Wright’s evidence, a requirement
not met in this case. With due respect to Judge
Easterbrook’s characterization, not considering
evidence--such as Wright’s history, the sympathy
generated from that history, who the victim was,
and certain statements made to the media--is not
the same as considering but affording little
weight to the mitigating effects of that evi-
dence.
/5 Contrary to the dissent’s assertion, we do not
suggest that the evidence presented by Wright was
necessarily mitigating, or that the sentencer was
required to afford it mitigating weight. Rather,
we find that it was constitutional error for the
sentencing court affirmatively to refuse to
consider a category of potentially mitigating
evidence offered by the capital defendant. This
case does not present the question of how the
sentencing court interpreted evidence offered by
Wright. Instead, it concerns the sentencing
court’s decision not to examine such evidence at
all.
Easterbrook, Circuit Judge, dissenting in part.
Patrick Wright had a troubled childhood and has
led a wretched life. Since the age of 15 Wright
has spent most of his days in custody and wreaked
mayhem when free. In sentencing Wright to death
for home invasion, robbery, sexual assault, and
murder, the state judge--acting as trier of fact
after Wright waived his right to have his fate
determined by a jury--admitted all of the evi-
dence Wright offered in mitigation and observed:
"I don’t think any reasonable person who has
heard all of the evidence in this case can feel
anything but sympathy for the pathetic creature,
Patrick Wright". But the judge added that he
would not allow sympathy to affect his sentence.
Wright entered the Specht home intending to
steal what he could and kill anyone who got in
his way. He slit Connie Specht’s throat, in her
mother Carol’s presence, after trying but failing
to rape both the girl and the woman; he stabbed
Carol to death. Connie survived and called the
police. Wright confessed; that plus physical
evidence and Connie’s account leave no doubt of
his guilt. The judge found that aggravating
circumstances far outweighed any mitigating
factors (particularly the judge’s conclusion that
Wright acted "under the influence of [a shoe
fetish, which amounted to] extreme mental or
emotional disturbance"). My colleagues hold that
by declining to treat Wright’s upbringing as an
additional factor in mitigation, independent of
its effect on his mental state, the judge violat-
ed the Constitution. I do not agree with this
conclusion. There is a big difference between a
legal rule forbidding a judge to give mitigating
weight to some factor and a legal rule compelling
a judge to give mitigating weight to that factor.
Eddings v. Oklahoma, 455 U.S. 104 (1982), and
Lockett v. Ohio, 438 U.S. 586 (1978), condemn the
former but do not require the latter. They hold
that "the sentencer in capital cases must be
permitted to consider any relevant mitigating
factor" (Eddings, 455 U.S. at 112); they do not
hold that the sentencer must deem any particular
factor to be mitigating. Wright’s sentence there-
fore is lawful, and I dissent from the majority’s
contrary decision--though I join its conclusion
that the judgment of conviction is valid.
My colleagues start with the fact that the
judge who sentenced Wright said, after summariz-
ing the evidence (and making the comments I have
quoted);
[A]ny matters dealing with sympathy, outrage, who
the victim was, all the matters I just mentioned
have no bearing on whether the defendant shall
receive the death penalty. And again, I note for
the record that I have cited them so the record
is clear that I have rejected them, and I have
disregarded them in making my decision.
Then they compare this with the "strikingly
similar" statement held in Eddings to demonstrate
a violation of the Constitution (slip op. 10):
Nor can the Court in following the law, in my
opinion, consider the fact of this young man’s
violent background.
The judge in Wright’s case "disregarded" his
childhood; the judge in Eddings’s case declined
to "consider" it; these come to the same thing,
my colleagues hold. But they are the same thing
only if they reflect the same understanding of
the judge’s discretion--which they do not. The
judge in Eddings thought that the law forbade him
to give weight to the defendant’s troubled child-
hood. This is the import of "[n]or can the Court
in following the law" give weight to that factor
(455 U.S. at 109, emphasis in original). As the
Justices remarked: "From this statement it is
clear that the trial judge did not evaluate the
evidence in mitigation and find it wanting as a
matter of fact; rather he found that as a matter
of law he was unable even to consider the evi-
dence." Id. at 113. Eddings added that the
state’s "Court of Criminal Appeals took the same
approach. It found that the evidence in mitiga-
tion was not relevant because it did not tend to
provide a legal excuse from criminal responsibil-
ity." Ibid. That view conflicted with the consti-
tutional principle that a "sentencer [may] not be
precluded from considering, as a mitigating
factor, any aspect of the defendant’s character
or record . . . that the defendant proffers as a
basis for a sentence less than death." Lockett,
438 U.S. at 604 (plurality opinion; emphasis in
original), quoted with approval in Eddings, 455
U.S. at 110.
Lockett and Eddings hold that whoever wields
the power to impose capital punishment also must
have unfettered discretion to dispense mercy. To
say that there is discretion is to say that the
sentencer may be unmoved--even may treat a
wretched childhood as a factor in aggravation be-
cause it implies that the defendant is inured to
violence and thus more likely to be incorrigible.
Nothing in Eddings (or any other decision) com-
pels the sentencer to give favorable weight to a
circumstance proffered in mitigation. Burger v.
Kemp, 483 U.S. 776 (1987), illustrates this
point. Burgeraccused his lawyer of ineffective
assistance for failing to present evidence of his
unhappy childhood and abusive family. The Court
held that this omission did not violate the
Constitution in light of the risk that the sen-
tencer would deem the background damning: evi-
dence showing that a person had a rough past and
fell in with a bad crowd often implies future
dangerousness. Id. at 793-94.
We have elaborated on this in a series of
decisions that, like Burger, the majority disre-
gards. Stewart v. Gramley, 74 F.3d 132 (7th Cir.
1996), is the most thorough and worth an extended
quotation:
We are mindful of [the argument] that anything
which serves to amplify the personal history of
the defendant and by doing so furnishes clues to
the causality of the crime for which he has been
sentenced to death makes such a sentence less
likely to be imposed. Causality is mitigation,
the lawyer argued. Tout comprendre c’est tout
pardonner. It is not an absurd argument. It
exploits the tension between belief in determin-
ism and belief in free will. If the defendant’s
crime can be seen as the effect of a chain of
causes for which the defendant cannot be thought
responsible--his genes, his upbringing, his
character as shaped by both, accidents of circum-
stance, and so forth--then a judge or jury is
less likely to think it appropriate that he
should receive a punishment designed to express
society’s condemnation of an evil person. We
consider a rattlesnake dangerous but not evil.
Maybe if we learned enough about Walter Stewart
we would consider him a person who had no more
control over his actions than a rattlesnake has
over its actions.
But not everyone who believes that human actions
are as much the consequences of causal factors as
anything else in nature denies that man is "free"
to refrain from "voluntary" acts such as murder
and is therefore blameworthy if he does not.
"Compatibilists" since Hume have argued that
human action is both caused and, for purposes of
ascribing moral and legal responsibility, free.
We cannot resolve a philosophical debate. And
need not. It is enough for our purposes that
capital punishment is not premised on--indeed is
inconsistent with--the view that the only reason
we think that people act "voluntarily" is that we
have not studied the antecedents of their actions
carefully, and that the purpose of a death-penal-
ty hearing is to investigate the defendant’s
history in sufficient depth to dispel the illu-
sion that he was free not to commit the crimes
for which he is being condemned. For then the
sentence of death would be the proof that the
lawyers had not done their job. And since it
obviously is not the theory of capital punishment
that murderers are compelled to murder by their
past and therefore should not be punished, it
cannot be right that anything brought out at a
death-penalty hearing is certain or even likely
to help the defendant to save his life. What is
brought out that will help him is what goes to
show that he is not as "bad" a person as one
might have thought from the evidence in the guilt
phase of the proceeding. What is brought out that
will hurt him is what goes to show that he is,
indeed, as bad a person, or worse, than one might
have thought from just the evidence concerning
the crime.
At the sentencing hearing members of Stewart’s
family and his former supervisor at work testi-
fied that he had been abandoned by his mother
when he was an infant (he does not know who his
father was) and had been brought up by his
grandparents in Michigan. His grandmother died
when he was 15. He had moved to Chicago with his
grandfather a few years earlier. He was friendly,
worked some and got along with his coworkers, and
attended church regularly. Ten years after moving
to Chicago he held up the jewelry store. Shortly
before that his grandfather had died and Stewart
had been distraught. In the closing argument at
the sentencing hearing his lawyer did not mention
Stewart’s personal history although he had
brought it out at the hearing through the testi-
mony that we have just summarized.
The fruits of the investigation by Stewart’s
current lawyers are summarized in a report by a
"mitigation specialist" backed up by affidavits.
According to the report Stewart was born at home
without the assistance of a doctor and fell on
the floor on his head when he emerged from his
mother’s body. His mother was 19 years old and
gave Stewart to her parents when he was six
months old. She does not know the name of his
father. She eventually moved in with her parents,
so that she was living in the same house with
Stewart, but she did not treat him as her son and
displayed no affection for him. When Stewart was
12 his grandfather, whom he doted on, had a
mental breakdown. Stewart was a hyperactive
child, did badly in school, and dropped outafter
the ninth grade. Coming from rural Michigan
Stewart was not used to the guntoting ways of his
Chicago age-mates and imitated their behavior,
which included carrying and using guns. At age 13
he fell under the influence of his cousin Ger-
aldine, "a hustler who got her money through
swindling people." Fagan-like, Geraldine used
Stewart "as her apprentice and bodyguard." The
affidavit of one of Stewart’s sisters states that
"Geraldine is the rotten egg of the family."
Stewart "was enthralled by Geraldine’s life-
style," and "turned increasingly to crime, pri-
marily robberies." He began using drugs, and for
a time was a heroin addict. Once, while under the
influence of heroin (which, the "mitigation
specialist" pointed out, can injure the brain),
Stewart "beat Wanza[another one of his sisters]
very badly and the police had to be called."
Much of this narrative is irrelevant, such as the
circumstances of Stewart’s birth, the fact that
his grandfather had a mental breakdown, and the
heroin addiction. The purpose of these details is
to insinuate that Stewart may have brain damage,
but of this there is absolutely no evidence . .
. . As for his falling among evil companions, it
is obvious that one does not become a teenage
robber without being initiated into criminal
activity by older hands, not uncommonly a rela-
tive. As for drug abuse, the report does not
suggest and there is no evidence that Stewart
committed the robbery and murders while under the
influence of any drug, or, as we have already
noted, that he has any organic brain damage. That
he comes from a broken home and was brought up in
a poor, rough neighborhood of Chicago was known
at the sentencing hearing . . . . The report of
the mitigation specialist adds colorful details
possibly relevant under a tout comprendre defense
if one existed, but not calculated to make a
judge or jury think Stewart less deserving of the
death penalty.
The mitigation specialist’s reference to
Stewart’s having embarked on a criminal career
consisting "primarily of robberies" after he met
cousin Geraldine when he was 13 is highly rele-
vant to appraising the likely impact of current
counsel’s thorough investigation on a sentencing
judge. The criminal record that was put before
the judge understated, we now know as a result of
the investigation, Stewart’s actual criminal
history. Evidently the nine crimes of which he
had been convicted (or sentenced to supervision)
were only the tip of the iceberg. He had been a
career criminal from the age of 13. This was, it
appears, when he began to "use guns." The impli-
cation is that when he started on the robbery
trail he used guns in his robberies, and recall
that one of his convictions was for armed rob-
bery--committed when he was only 14. The murders
in the jewelry store were the predictable culmi-
nation of his criminal career. He was by then a
hardened, dangerous, and seemingly inveterate
criminal.
74 F.3d at 136-37. Recently we have made the same
point succinctly:
All that Britz’s meticulously researched personal
history shows, as in the other cases we have
cited, is that he led a disordered life culminat-
ing in the murder for which he has been sentenced
to death. People with his background of antiso-
cial behavior are more likely to commit murders
than other people, but this does not make them
attractive candidates for lenity; rather, it
underscores their dangerousness.
Britz v. Cowan, 192 F.3d 1101, 1104 (7th Cir.
1999). A judge who shared this perspective would
have admitted the evidence of Wright’s back-
ground, expressed compassion for him as a victim
of others’ wrongs, given mitigating weight to any
mental limitations caused by whatever abuse he
had endured, and finally declared the offender’s
background otherwise not a reason to reduce his
punishment. That is exactly what this sentencing
judge did do! So where is the constitutional
flaw? Is it that a state judge is forbidden to go
straight to the bottom line, without articulating
the intermediate steps laid out in Stewart? Or
perhaps there is a need for magic words, as the
majority implies in stating that a judge must
declare something like "I have taken X into
account but given it no weight"? Why there is a
constitutional difference between "I have reject-
ed X" (which this judge said) and "I have given
X no weight," my colleagues do not explain.
Anyway, an obligation to state affirmatively that
some circumstance has been "taken into account"
cannot be found in Eddings (the majority cites no
source at all for this directive, which appears
at slip op. 9 n.4), and as a new rule it may not
be applied in a collateral attack. See Teague v.
Lane, 489 U.S. 288 (1989). My colleagues must
think their approach a logical extension of
Eddings, but Teague puts extensions (logical and
otherwise) off limits.
Let us return, then, to the rule stated by the
Supreme Court in Eddings: that no state may
forbid a capital sentencer to consider any ground
advanced in mitigation. Because the judge’s
explanation was curt, it is impossible to exclude
the possibility that he sought to convey the same
message as the judge in Eddings. Yet if this is
what he meant, his expression was inept; the key
phrase from Eddings ("[n]or can the Court in
following the law . . . consider" certain evi-
dence) is missing and not replaced by an equiva-
lent. One would expect a judge to be able to
announce a conclusion that the law (as he under-
stood it) disabled him from taking some factor
into account. Yet Illinois law was (and is) clear
that a troubled youth may be considered in miti-
gation, see People v. Lewis, 88 Ill. 2d 129, 144,
430 N.E.2d 1346, 1352 (1981), so it is not
surprising that the judge did not mention any
legal prohibition. To read this judge’s brief
oral statements as foreclosing on legal grounds
all possibility that a person’s childhood could
mitigate his punishment is to accuse him of
failing to know and follow state law--which not
only would be inappropriate (a presumption of
irregularity?) but also is not the reading given
to the judge’s remarks by the Supreme Court of
Illinois, which found no violation of the state’s
consider-everything norm. People v. Wright, 111
Ill. 2d 128, 166-68, 490 N.E.2d 640, 656 (1985).
(The state’s highest court considered and sus-
tained the conviction and sentence twice more on
collateral review. See People v. Wright, 149 Ill.
2d 36, 594 N.E.2d 276 (1992); People v. Wright,
189 Ill. 2d 1, 723 N.E.2d 230 (1999). Wright did
not renew in either of those proceedings any
contest to the interpretation given in 1985 to
the sentencing judge’s remarks.)
The most one can say is that the statements
were ambiguous--as oral expressions so often
are--because they did not explicitly draw a distinc-
tion between legal rules and case-specific appli-
cation. Did the judge mean that Wright’s child-
hood may not be considered (a legal error) or
only that Wright’s childhood will not be consid-
ered (a factual conclusion that the evidence did
not justify mercy)? The meaning of an ambiguous
pronouncement is a question of fact, not of law.
Parker v. Dugger, 498 U.S. 308, 320 (1991);
Wainwright v. Goode, 464 U.S. 78, 83-85 (1983);
Rivera v. Sheriff of Cook County, 162 F.3d 486
(7th Cir. 1998). Because meaning is a fact, the
state appellate court’s resolution controls
unless not fairly supported by the record. This
principle--a holding of Parker, Goode, and Rivera
alike--governs pre-aedpa cases under the old 28
U.S.C. (1994 ed.) sec.2254(d)(8) and newer cases
under the current sec.2254(e)(1). The majority’s
opinion seems to rest on the view that, because
the state judge’s words are in black and white on
paper, we can decide their meaning as readily as
the state’s highest court. The view that findings
based on documents may be freely reviewed by
appellate tribunals was ringingly rejected in
Anderson v. Bessemer City, 470 U.S. 564, 573-75
(1985), with respect to the relations between
trial and appellate judges in a unitary judicial
system; it is even less persuasive when applied
to relations between the state judicial system
and the federal.
Reading the sentencing judge’s statement as a
finding that he was not swayed by Wright’s back-
ground, as opposed to a declaration that he was
legally forbidden to consider it, is fairly
supported by the record; it is, indeed, the most
natural reading. The judge did not imply that he
thought himself blocked by a rule of law from
dispensing mercy that he deemed warranted. Unless
the sentencing judge thought the law an obstacle
to acting on mitigating evidence, there is no
problem under Eddings. Because the judge did not
declare that the law stopped him from reducing
Wright’s sentence, the Supreme Court of Illinois’
resolution of the ambiguity is supported by the
record, and thus conclusive in this collateral
attack. My colleagues say in response that the
court’s "holding [does] not withstand scrutiny"
(slip op. 8). To call the Supreme Court of
Illinois’ conclusion a "holding" is to call it a
proposition of law, which in pre-aedpa cases we
review without deference. It is not a "holding,"
however; it is a finding of fact. The state judge
gave thought to (and believed himself legally
entitled to reduce a sentence because of)
Wright’s childhood, or he did not; the Supreme
Court of Illinois concluded that he had done so
(this is the point of its statement that the
judge "considered all potential mitigating facts
in the record", 111 Ill. 2d at 168, 490 N.E.2d at
656).
Characterizations of what happened are facts,
even when they are entangled with legal issues
and determine the outcome of the litigation. See,
e.g., Pullman-Standard v. Swint, 456 U.S. 273,
288 (1982) (whether particular conduct is "dis-
crimination" is a question of fact); Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709
(1986) (whether a worker is a "seaman" is a
question of fact). See also Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 399-405 (1990)
(characterizations under fact-dependent legal
standards, such as whether a suit is frivolous,
are treated as facts and thus subject to deferen-
tial appellate review). What the state judge
thought about the extent of his discretion is a
proposition about the state of the world, not
about the state of the law. That’s the point of
Baron Bramwell’s famous observation that "[t]he
state of a man’s mind is just as much a fact as
the state of his digestion." Edgington v. Fitz-
maurice, 29 Ch. Div. 459, 483 (1885). The Supreme
Court of Illinois told us what we need to know
about the state of the sentencing judge’s mind.
See also Banks v. Hanks, 41 F.3d 1197 (7th Cir.
1994).
Wright tries to get mileage from the context of
the sentencing judge’s declaration: "any matters
dealing with sympathy, outrage, who the victim
was, all the matters I just mentioned have no
bearing on whether the defendant shall receive
the death penalty." To lump "sympathy" with
"outrage" is to imply that the same rule applies
to both, and as "outrage" should not be consid-
ered, the sentencing judge must have thought that
"sympathy" should not be considered either. That
is another possible reading--one my colleagues
embrace, slip op. 11-12--but not one that the
state courts were compelled to adopt. The state-
ment "X, Y, and Z have no bearing on whether
Wright shall be sentenced to death" could mean
"X, Y, and Z have no bearing on whether Wright
shall be sentenced to death, for one legal reason
applicable to all three grounds." Or it could
mean "X, Y, and Z have no bearing on whether
Wright shall be sentenced to death, because none
of them makes any difference to me as a matter of
fact." The Supreme Court of Illinois could com-
plete the sentence either way--and it chose the
latter way, with considerable logical support,
for reasons I have covered. My colleagues demand
"constitutionally grounded certainty that Wright
[received] the individualized sentence . . .
mandated by Eddings" (slip op. 14, emphasis
added), but no rule of law calls for "certainty".
Such a demand contradicts Parker and Goode (a
state court’s findings of fact matter only when
there is un-certainty!) and transgresses Teague
as well (the majority does not cite any pre-1985
case, indeed any case at all, for its insistence
on "certainty"). The idea that a record’s silence
on some important matter, and consequent lack of
"certainty," requires a federal court to annul a
state court’s judgment finds no support in the
Supreme Court’s cases, and many hold the con-
trary--most recently, Mickens v. Taylor, 122 S.
Ct. 1237 (2002) (silence about the effect of
counsel’s conflict of interest, as a result of
judge’s failure to inquire, does not lead to
relief even in a capital case).
Giving an ambiguous statement a meaning that
renders it unconstitutional (and a violation of
state law to boot) disrespects the state judge’s
legal skills and denigrates the role of the state
judiciary in resolving disputed issues of fact.
My colleagues treat a state judge imposing sen-
tence as if he were an administrative law judge
in a Social Security disability case, obliged to
use prescribed verbal formulas and required to
tie up all loose ends on pain of remand, and they
disdain the decision of the state’s highest
court. That is not the right relation between the
state and federal judiciaries. A state judge is
not an alj, and it is a state’s appellate judi-
ciary rather than a federal court on collateral
review that untangles ambiguities attending oral
expositions. Nor is an insistence that only
"certainty" suffices the right relation between
a court of appeals and the Supreme Court of the
United States.
Finality and expedition are important in every
criminal case. The meaning of this statement was
resolved in 1985. Words offer only a cloudy
window into the sentencing judge’s thoughts, so
reasonable people could disagree about their
import; the Justices of the Supreme Court of
Illinois did disagree in 1985, dividing five to
two about this subject. Seventeen years later two
federal appellate judges sign on with the dis-
senters. That delay does more to show the wisdom
of the rule treating these matters as factual
(which allows the state’s decision to stand) than
to justify throwing the state-court decision out
the window and treating the issue as res nova. If
matters had been resolved differently in 1985,
all doubt could have been resolved, likely just
by asking the sentencing judge what he had meant
by his statements. Now it is too late--and delay
is a powerful reason to treat this subject as one
of fact, in order to bring disputes such as this
to timely closure.
No resentencing 20 years after the fact can be
as good as the one now upset: human memory fades,
so the accuracy of sentencing degrades. New
errors are bound to occur, mistakes that likely
will be more substantial than the ambiguity that
concerns my colleagues. Yet no substantial feder-
al question compels a new proceeding. Lockett and
Eddings settle the major legal question; only
implementation remains. Nonetheless, by holding
that both the passage of time and the findings of
the state’s highest court are irrelevant, my
colleagues create legal problems concerning
federalism, the vitality of the rule stated by
Parker and Goode, the novel demand for "certain-
ty" in adjudication, and the application of
Teague to the majority’s innovations.
To treat an ambiguity in two off-the-cuff
sentences as spoiling a sentence reviewed and
sustained three times by a state’s highest
court--while giving the findings of that court no
respect--is to abuse the power conferred by 28
U.S.C. sec.2254. Wright is now 59 years old; he
will die of old age before we permit the State of
Illinois to carry out its judgment.