Hampton, Patrick v. Leibach, Blair ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4186
UNITED STATES OF AMERICA ex rel.
PATRICK HAMPTON,
Petitioner-Appellee,
v.
BLAIR LEIBACH,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 5473—Matthew F. Kennelly, Judge.
____________
ARGUED APRIL 10, 2002—DECIDED OCTOBER 14, 2003
____________
Before RIPPLE, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. In 1982, an Illinois jury convicted
eighteen-year-old Patrick Hampton of deviate sexual
assault, attempted rape, robbery, and aggravated battery,
and the trial judge ordered him to serve an extended pris-
on term of sixty years. Hampton filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, alleging
(among other things) that his trial counsel was constitu-
tionally ineffective for failing to investigate and interview
exculpatory eyewitnesses to the crimes of which he was
convicted and for making promises in his opening statement
to the jury that he did not keep. Following an evidentiary
hearing, the district court granted the writ on these
2 No. 01-4186
grounds. Hampton v. Leibach, No. 99 C 5473, 2001
WL 1518533 (N.D. Ill. Nov. 29, 2001). The State has ap-
pealed. By order of the United States Supreme Court,
Hampton has been released from prison during the pen-
dency of this appeal. We affirm the district court’s judg-
ment.
I.
The offenses of which Hampton was convicted took
place at a rhythm and blues concert held at the Chicago
International Amphitheatre on the evening of December 29,
1981. Four bands performed at the concert: Chocolate Milk,
Slave, Michael Henderson, and Zapp. Shortly after mid-
night, while the last band was still playing, a group of up
to forty individuals marched up the aisle toward the stage,
chanting “Black Gangster Disciples” and “Third World
Disciple Nation,” pounding their fists together, and making
gang signals with their hands. Three Latino concert-
goers—Hugo N., Martha N., and Denise M.1—were seated
in the fifth row of the theater. As they arose from their
seats and attempted to leave, the group in the aisle at-
tacked them, removing their clothes, taking their wallets
and jewelry, beating them, and sexually assaulting the two
women. Security guards eventually intervened and rescued
the three victims of the assault. None of the perpetrators
was detained at the scene.
Fourteen year-old Keith Powell attended the concert
and witnessed the attack. He later identified a number
of former acquaintances from the Robert Taylor Homes
(a public housing project) as having been in the group of
people who had marched toward the stage of the theater.
1
We shall refer to the these three individuals by their first
names and last initials to respect their privacy.
No. 01-4186 3
Hampton was among the individuals that Powell identi-
fied, although Powell would later testify that he did not
actually see Hampton participate in the attack on the three
Latinos.
Hampton was arrested on December 31, 1981. He was
eighteen years old at that time and had never before been
arrested.
Ultimately, nine individuals, including Hampton, were
charged with the attacks. Six of them pleaded guilty
and were sentenced to the short periods of time they had
already spent in jail awaiting trial. Three defendants—
Hampton, Ronald Mallory, and Ricky Knight—pleaded not
guilty. They were tried jointly before three separate juries.
Attorney Jack Rodgon represented Hampton at the trial.
Hampton’s family had retained Rodgon, who previously
had represented Hampton’s brother. In advance of trial,
Rodgon sought to withdraw as Hampton’s counsel, asserting
that his fees were not being paid and that Hampton and his
family were not cooperating with him in preparation of the
case. The trial judge, Hon. Earl E. Strayhorn, proposed to
solve the problem by appointing Rodgon. Rodgon demurred,
indicating there were “some problems” with representing
Hampton. R. 48-1 at 129. The judge was unmoved and
refused to release Rodgon from the engagement; he subse-
quently granted Rodgon’s motion to continue as Hampton’s
counsel by appointment.
At trial, Powell testified that near the end of the concert,
a group of men approached the Amphitheatre stage, making
gang-related signs with their hands and chanting gang
slogans. The three defendants were members of that group.
Powell had known the defendants for two to three years; he
had once lived in the Robert Taylor Homes where the de-
fendants resided. Powell saw a disturbance break out near
the stage. At some point during the melee, a naked woman
ran up the aisle; he also saw Knight throw a pair of pants
4 No. 01-4186
in the air. Although the stage lights were lit during this
incident, the rest of the lights in the Amphitheatre were
darkened. Following the concert, Powell took the 43rd
Street bus back to the Robert Taylor Homes near 43rd and
State Streets, where he was staying with his aunt. He saw
each of the three defendants (among other individuals that
he knew) on that bus. He also overheard a conversation in
which someone—he could not say who—bragged about
having “stuffed his fingers” into the vagina of a woman, R.
48-2 at 563, and having taken jewelry. Powell reported
what he had seen and heard to the police on the afternoon
of December 31. Powell testified that although Hampton
was in the group that approached the stage, he had not
seen Hampton attack anyone, nor had he heard Hampton
say anything on the bus. Powell also testified that he had
picked Hampton out of a line-up, and he was positive on
this point. R. 48-2 at 624. However, the trial evidence would
subsequently reveal that he had never picked Hampton out
of a line-up. R. 48-3 at 1087.
Hugo N., one of the three victims of the assault, testified
that he had attended the concert with his girlfriend, Denise
M., his sister, Martha N., and Martha’s boyfriend, Scott S.
They sat in the fifth row on the main floor of the Amphi-
theatre. A number of disturbances preceded the assault
in which he, Denise, and Martha were injured: In the inter-
mission following the second act, Martha’s boyfriend was
struck in the head with a crowbar; during the third act,
Hugo saw security personnel chasing someone through the
theater; and during the intermission between the third and
final acts, he saw another fight break out among concert-
goers. During the last act, when Hugo, Denise, and Martha
saw the group of men moving down the aisle toward the
stage chanting “Third World Disciple Nation” and making
hand signals, they decided to leave. (Scott S. had already
left due to his injury.) As they attempted to do so, however,
the group blocked their exit and attacked them. Hugo lost
No. 01-4186 5
sight of Martha. As Hugo attempted to shield Denise from
the group, they were both kicked and punched. His shirt
was torn off, he felt people going through his pockets (his
wallet, keys, and jewelry all were taken) and then the rest
of his clothes were torn from his body. Denise was also
being stripped of her clothes. Knight twice struck him
and Denise with a chair, and on the second blow they both
fell to the floor. At this point, a number of attackers had
exposed their penises, and Hugo saw Knight put his in
Denise’s mouth, telling her “something like ‘here, take it.’ ”
R. 48-2 at 766. A security guard eventually came to his aid;
another helped Denise. They were taken to a first aid
station and subsequently by ambulance to a hospital. Hugo
later identified Knight from photographs and from a line-
up. He did not identify Hampton as one of his attackers.
Nor did he give the police a description of his assailants pri-
or to the first line-up that he viewed. Hugo agreed that at
the time of his assault, the last band was still playing, the
air in the Amphitheatre was smoke-filled, and the only light
was coming from the multi-colored stage lights.
Denise M. testified that when she, Hugo, and Martha at-
tempted to leave the theater, their path was blocked by a
group of fifteen to twenty men who were chanting and mak-
ing hand signals. She and Hugo were pushed and shoved,
and she felt hands grabbing her. Her clothing and jewelry
were ripped from her person, and she felt fingers being
pushed into her vagina. After someone twice struck them
with a chair, she fell dazed to the ground along with Hugo.
A number of the men had their penises out, and two of them
approached her. Knight attempted to put his in her mouth
(saying “here, take it,” R. 48-3 at 1017) as did Mallory.
Several men sat on her legs and one tried to pull them
apart. Denise saw one of the attackers, whom she identified
as Hampton, move his hands and she felt him try to force a
cold, hard object into her vagina. Eventually, a security
guard arrived and managed to break up the assault. Denise
6 No. 01-4186
suffered a number of injuries from the attack, including a
tear in her vagina that required surgical repair, a bladder
infection, and scarring on her breast. From photographs
and from a line-up, she subsequently identified Hampton as
the individual who had attempted to force an object into her
vagina. On cross-examination, Denise testified that she
could not estimate how long she had seen this individual.
She indicated that there were many men who were attack-
ing her, and that she was concentrating on the faces of the
men who tried to put their penises in her mouth.2 Prior to
viewing photographs and a line-up, she did not give a
description of Hampton or her other assailants to the
police.3
Martha N. testified that the assault began as a group of
men began to march toward the stage, making signals at
another group that was standing in front of the stage. As
she looked over at the aisle, she saw Knight gathering men
around him as they proceeded down the aisle. When she,
Hugo, and Denise attempted to move into the aisle in order
to leave, she found herself surrounded by a group of up to
thirty or thirty-five men. Knight swung a chair at her and
she ducked to avoid the blow. She then felt others pulling
her by the hair toward the stage. She was punched and
kicked, and her jewelry was taken. A man that she identi-
fied as Hampton tore her pants and attempted (unsuccess-
2
Other testimony indicated that on January 3, 1982, Denise
had identified Ronald Mallory, not Knight, as the person who put
his penis into her mouth; subsequently, on January 8, she iden-
tified Knight as the one who did this. R. 48-3 at 952-53, 957. At
trial, Denise testified that both men had attempted to do this, but
that neither one had succeeded. R. 48-3 at 1018, 1019.
3
Chicago police Detective Thomas Ptak testified that Denise M.
did supply the police with a description of her assailants. How-
ever, no such description was included in the police report that he
prepared. R. 48-3 at 960.
No. 01-4186 7
fully) to put his hand into her vagina. When she tried to get
away, she heard Knight say, “Get her. Get her.” R. 48-2
at 856. She managed to run to a security guard and asked
for his help, but he did nothing. She then located a second
guard who did help her. Martha testified that she subse-
quently picked Hampton out of line-up that took place on
December 31. She acknowledged that she had only seen his
face for four to five seconds on the night of the assault and
that during that time she was kicking and flailing at the
people who were attacking her. Prior to viewing the De-
cember 31st line-up, she did not describe Hampton or her
other assailants to the police beyond saying that they were
young black males. R. 48-3 at 949-50.
Detective Thomas Ptak later acknowledged on cross-ex-
amination that according to a written investigative report
that he had helped to prepare, Martha N. had identified
Ezra Garner, not Hampton, as the man who had tried to
put his hand into her vagina. R. 48-3 at 984. Ptak testified
that the report was erroneous, and that Martha had ac-
tually identified Hampton.
William Heinrichs, a field supervisor for the Cook County
Sheriff’s office, was moonlighting as a security guard at
the concert. Just after midnight, a young Latina in a torn
blouse and pants (Martha N.) approached him and told him
that a fight was taking place and that her brother and his
girlfriend were being attacked. He left her in the custody of
another guard, then rounded up additional other guards to
assist him. As he and other guards approached the scene of
the attack, he saw a large group of black men gathered in
a circle. In the center of that circle, a man and a woman
were on the ground being beaten. As Heinrichs pushed his
way through to the center of the circle, he saw a young
black man that he later identified as Hampton bending over
the woman, thrusting his arm toward her vaginal area. One
of the other guards yanked him off the woman, and the
guards helped the two victims—both of them naked and
8 No. 01-4186
bruised—to safety. Heinrichs testified that he grabbed the
assailant he identified as Hampton by the shoulder, but
was unable to keep him and the others from fleeing. On the
witness stand, Heinrichs indicated that he saw Hampton
for no more than three to four seconds during the assault;
he also testified that he had searched Hampton earlier in
the evening, when Hampton was admitted to the theater.
Following the incident, Heinrichs made no effort to contact
the police for more than a week; ultimately, someone from
the police department contacted him on January 6. Later
that day, Heinrichs identified Hampton and three other
individuals as participants in the attacks from a photograph
of a line-up. On the previous day, Heinrichs had seen a
television news report about the attack. That report fea-
tured a picture of Hampton (who by then was in police cus-
tody), and in Heinrichs’ estimation, the photograph of
Hampton had been displayed on the air for as long as one
minute.
Ricky Knight called no witnesses in his defense. He of-
fered only a single stipulation to the effect that a detective
would testify that the police investigation revealed it was
Ronald Mallory, and not Knight, who had put his penis in
Denise’s mouth.
Ronald Mallory presented four witnesses besides himself.
A woman who had grown up in the same neighborhood
as he testified that to her knowledge he was not a gang
member. A second witness, who knew Mallory from the pro-
jects and considered him a friend, testified that she had
attended the concert, that she had seen the attacks, that
she was standing right next to Mallory while the attacks
took place, that Mallory had not participated in the attacks,
and that he was not, to her knowledge, a gang member.
Gregory Hubbard testified that he had known Mallory
for five to six years from the neighborhood, that he too was
present at the concert, that he saw Mallory during the
attacks, that Mallory had not taken part in the attacks, and
that Mallory was not a gang member. Gregory Mallory
No. 01-4186 9
(“Gregory” or “Gregory Mallory”), Ronald’s brother, testified
that he too had attended the concert, that he had seen the
attacks, that he saw where his brother was during the
attacks, and that Mallory was not one of the attackers.
Gregory acknowledged that he had a previous conviction for
an unspecified crime. Finally, Mallory himself testified,
acknowledging that he was present at the concert but
denying any involvement in the attacks. Mallory said that
he approached the police on his own and gave them a
statement after hearing that they were looking for him. He
conceded, however, that he had lied to the authorities when
he told them he had not seen anyone he knew (other than
his brother) at the concert.
Two of Mallory’s witnesses had favorable things to say
about Hampton. The government asked Hubbard on cross-
examination whether he had seen anyone he recognized
participating in the attacks. Hubbard said that he had not,
and on further questioning, testified that he had not seen
either Knight, Hampton, or Mallory take part in the at-
tacks. R. 48-3 at 1145. Gregory Mallory, also on cross-ex-
amination, denied that either Mallory or Hampton was a
member of the Disciples gang. R. 48-3 at 1107.
However, because each defendant’s case was heard by a
separate jury, Hampton’s jury did not hear this testimony.
When the State was putting on its own witnesses, all three
juries were present in the courtroom at the same time. But
as counsel for each defendant took turns cross-examining
the State’s witnesses, and later as each defendant put on
his own evidence, the juries were rotated in and out of the
courtroom such that each jury only heard one defendant’s
case. Hampton’s jury thus was not present in the courtroom
when Mallory’s witnesses testified.
Hampton’s defense case was limited to one witness. De-
tective Craig Cegielski testified that Powell, to his knowl-
edge, had never picked Hampton out of a line-up. R. 48-3 at
1087.
10 No. 01-4186
In his opening statement, Hampton’s attorney, Rodgon,
made two promises: first, that Hampton would testify that
he was present at the concert and had seen what happened
but had not participated in the attack (R. 48-2 at 543), and
second, that the evidence would show that Hampton was
neither a member of, nor involved with, any gang (id. at
544). Neither promise was kept. Hampton did not testify,
and his jury heard no evidence that he had lacked involve-
ment with a gang.
The theme that Rodgon sounded in closing argument was
one that he focused on exclusively throughout the trial—the
weakness of the government’s case against Hampton.
Rodgon challenged both Powell’s credibility and Heinrichs’:
Rodgon noted that Powell claimed to have identified
Hampton in a line-up but that the evidence revealed he
had not done so; and Heinrichs, despite his position as
a law enforcement officer, had not come forward as a wit-
ness until the police contacted him more than a week after
the assaults, and he had identified Hampton only after
he had seen a news report featuring a photograph of
Hampton. Rodgon also questioned the ability of Martha N.
and Denise M. to identify Hampton as one of their attack-
ers, noting that they had only gotten brief glimpses of the
assailant under stressful conditions. Rodgon explained nei-
ther Hampton’s failure to testify nor the lack of evidence
that Hampton was uninvolved in a gang; he simply noted
that Hampton was not obliged to put on a case.
During jury deliberations, Hampton’s jury sent four notes
to the judge. One of these indicated that the jury had ar-
rived at a verdict as to five of the nine charges against
Hampton but was deadlocked as to the four other charges.
R. 62 at 189. Ultimately, the jury acquitted Hampton of the
attempted rape of Martha N. (R. 62 at 193) but convicted
him of deviate sexual assault, the attempted rape of Denise,
aggravated battery, and robbery (R. 62 at 194-201). Knight
was convicted on all charges. Mallory was acquitted of cer-
No. 01-4186 11
tain charges and granted a mistrial as to the remaining
charges, as to which his jury could not render a verdict. He
was acquitted of the remaining charges at a second trial.
Judge Strayhorn ordered Hampton to serve a prison term
of sixty years. R. 62 at 214; R. 48-6 at 58. The most ser-
ious of his offenses, deviate sexual assault, was normally
punishable by a maximum of thirty years. However, that
maximum was doubled to sixty years upon a finding that
the assault was accompanied by exceptionally brutal or
heinous behavior indicative of wanton cruelty. Judge
Strayhorn determined that Hampton’s use of a foreign ob-
ject to assault Denise M. met this condition. He remarked:
It is probably the most ag[g]rievously cruel, wanton,
depraved, brutal, [heinous], animalistic activity that
I have run into in some thirty five years in the practice
of law as a prosecutor, as a defense counsel and as a
Judge. I’ve never run into a situation involving the
[heinous] type facts that evolved in this case and that
were shown to exist in this case and Mr. Hampton was
actively involved to take a foreign object and to attempt
to force it into the vagina of a woman being held pros-
trate on the ground, people on each arm and on each
leg. That’s animalistic. That’s depraved. That’s cruel.
That’s doing great harm and I can’t allow it to pass and
I will not allow it to pass unnoticed.
R. 48-8 at 37. He was not imposing the sentence for the
purpose of rehabilitation, Judge Strayhorn explained. “It is
purely and simply for punishment for . . . the most cruel,
wanton, brutal, [heinous,] depraved, animalistic act that
I have ever seen committed on a human being.” R. 48-8
at 38. The judge ordered Hampton to serve concurrent, les-
ser terms on the other charges. R. 62 at 214; R. 48-6 at 58.
On direct review, the Illinois appellate court affirmed
Hampton’s conviction and sentence. People v. Knight, 486
N.E.2d 1356 (Ill. App. Ct. 1985). The Illinois Supreme
12 No. 01-4186
Court, as well as the United States Supreme Court, both de-
clined to hear the case. Knight v. Illinois, 480 U.S. 905, 107
S. Ct. 1346 (1987).
In 1990, Hampton filed a petition for postconviction relief
in state court. Through counsel, he filed a supplemental
petition after the Cook County public defender’s office was
appointed to represent him. R. 48-5 at 108 et seq. In his
supplemental petition, Hampton asserted that Rodgon had
been ineffective for failing to investigate and interview ex-
culpatory occurrence and character witnesses (R. 48-5 at
112-13, 117-19), for failing to have Hampton testify in his
own defense, and for failing to present evidence that
Hampton was not a gang member as Rodgon had promised
in his opening statement (R. 48-5 at 125-27). (Hampton’s
petition included other claims not relevant here.) Hampton
submitted an affidavit in support of the petition in which
he averred, inter alia, that he had given Rodgon the names,
addresses, and telephone numbers of Gregory Mallory,
Clinton Williams, and Ronnie Garner, and he had told
Rodgon that they would confirm that he had not partici-
pated in the attacks. R. 48-5 at 168 ¶ 12. Williams and
Garner signed affidavits indicating that Hampton was not
a gang member, that they had attended the concert with
him, and that Hampton was not involved in the attacks
R. 48-5 at 180-81 ¶ 5 (Williams); id. at 182-83 ¶ 5 (Garner).
They also stated that Rodgon had never contacted them. R.
48-5 at 180 ¶ 4 (Williams); id. at 182 ¶ 4 (Garner).
Hampton’s affidavit also indicated that he would have given
Rodgon the names of potential character witnesses if
Rodgon had asked him (R. 48-5 at 169 ¶ 15); and several of
his friends and family members submitted affidavits aver-
ring, among other things, that Hampton was not a gang
member (R. 48-5 at 184 ¶ 5g; id. at 187 ¶ 6b; id. at 189
¶ 5h, i; id. at 191 ¶ 5d; id. at 193 ¶ 5d). Hampton’s supple-
mental petition ultimately was assigned to Circuit Judge
Colleen McSweeney Moore.
No. 01-4186 13
On the State’s motion, Judge Moore summarily dismissed
the bulk of Hampton’s petition, including his ineffectiveness
claim. She determined that an evidentiary hearing was
warranted on Hampton’s claim that he had been denied the
right to testify on his own behalf. R. 48-7 at C38.4 But she
4
At the subsequent hearing on that issue, Rodgon explained that
he had advised Hampton not to take the witness stand because
Hampton would have testified that he knew everyone involved in
the case, including the other defendants, that he had gone to the
concert with some of the other defendants, that he had left with
them, and that he had taken the bus home with them. R. 48-7 at
D32. In Rodgon’s view, the specter of guilt by association was a
“terrible problem.” Id. at D33. Rodgon testified that he conveyed
this concern to Hampton, but left it to his client to decide whether
or not to testify. Id. at D31. Hampton, by contrast, testified that
Rodgon had never informed him that he had a right to testify and
did not explain that the decision whether or not to testify was his
rather than Rodgon’s to make. Id. at D7-8. Hampton said that he
had told Rodgon during the State’s case that he wanted to testify.
Id. at D9-11. But according to Hampton, Rodgon did not discuss
the matter with him again until after Rodgon announced to the
court that the defense was resting its case. Id. at D11. At that
point, Hampton asked Rodgon why he could not take the witness
stand, and Rodgon, according to Hampton, responded simply,
“Don’t worry, everything will be all right.” Id.After hearing both Rodgon and Hampton testify, Judge Moore
credited Rodgon’s version of events over Hampton’s. See id. at
D58-59. She found that Rodgon and Hampton had discussed the
possibility of him testifying and what Hampton would say, that
Rodgon had informed Hampton of his right to testify and that the
decision was his as opposed to Rodgon’s, and that Hampton had
elected not to take the witness stand. Id. She also found, in view
of the “overwhelming” testimony from the “numerous eyewitnes-
ses” in the State’s case who identified Hampton as one of the per-
petrators, that Rodgon had understandably changed his mind
about Hampton testifying in his own defense. Id. at D57. “It is
. . . not unreasonable during the course of a trial or as a matter of
(continued...)
14 No. 01-4186
concluded that no such hearing was warranted as to his al-
legations of ineffectiveness. The judge thought the ineffec-
tiveness claim meritless in part because Hampton could not
show that the outcome of his trial might have been different
had Rodgon taken the steps that Hampton alleged he had
neglected to take. R. 48-7 at C34, C36. In the judge’s view,
Hampton’s postconviction counsel was attempting to sub-
stitute his own strategic judgment, informed by hindsight,
for that of Rodgon. Id. at C34-35. Judge Moore went on to
“find . . . as a matter of fact from the record . . . that Mr.
Ro[dg]on’s trial tactics, his strategy in the manner in which
he represented Patrick Hampton’s interest was not ineffec-
tive but rather was highly competent.” Id. at C35. She
noted that Rodgon had moved to quash Hampton’s arrest
and had obtained an evidentiary hearing on that motion, he
had moved to suppress the identification of Hampton and
also obtained a hearing on that request, he had pursued
additional motions regarding discovery and other issues in
the case, and during the trial he had effectively cross-exam-
ined the State’s witnesses. Id. at C32-34. The judge rejected
the notion that Mallory’s acquittal supplied reason to be-
lieve that Hampton too might have been acquitted had
Rodgon looked for the types of witnesses that Mallory’s
counsel had presented. “[T]he evidence with regard to Mr.
Mallory was so much weaker than the evidence with re-
gard to Patrick Hampton,” she reasoned. Id. at C35. In
Hampton’s case, a security guard as well as the victims of
the assault were able to identify Hampton; the case against
Mallory, by contrast, rested solely on the testimony of a
single victim (Denise M.). See id.
4(...continued)
concurring trial strategy between a defendant and his attorney to
agree not to take the stand with the type of testimony that they
had discussed Mr. Hampton testifying to, in light of the over-
whelming evidence in the case.” Id.No. 01-4186 15
A divided Illinois Appellate Court affirmed the dismis-
sal of Hampton’s ineffectiveness claims, concluding that
Hampton’s allegations did not satisfy either of the two
criteria set forth in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984)—objectively unreasonable perfor-
mance by counsel and prejudice resulting therefrom. People
v. Hampton, No. 1-95-4282, 726 N.E.2d 1187 (Ill. App. Ct.
June 8, 1998) (unpublished) (hereinafter, “App. Ct. Order”).
Hampton could not show prejudice, the court reasoned, giv-
en the “overwhelming” proof of his guilt—namely, the fact
that two of the victims of the attack, along with the security
guard, had identified him as one of the perpetrators. App.
Ct. Order at 5. Nor could Hampton establish that Rodgon’s
performance as his attorney was objectively unreasonable.
The decision whether to present a witness, the court stated,
is a matter of strategy and “cannot support a claim of in-
effective assistance of counsel.” Id. at 6. The court noted
that an attorney is only obliged to make a reasonable
investigation or to make a reasonable decision that renders
particular investigations unnecessary. Id. Here, Rodgon
knew that Hampton had attended the concert along with
several other defendants and that he had been positively
identified as one of the perpetrators by two victims and the
guard. Against that backdrop, the court believed, Rodgon
reasonably could have concluded that pursuing witnesses
who would simply have confirmed that Hampton was pres-
ent at the scene of the crime and linked to the other per-
petrators of the offense posed as much of a detriment as a
benefit to Hampton’s defense:
The testimony of these other witnesses would have been
redundant and only serve[d] to emphasize the fact that
defendant went to the concert with the perpetrators,
was present during the assault, and left with the
perpetrators. It was not unreasonable for defense coun-
sel to find this troubling. Indeed, it was defense coun-
sel’s assessment that defendant faced a probability of
“guilt by association.”
16 No. 01-4186
Id. 7. Thus, “[a]pplying a heavy measure of deference to de-
fense counsel’s judgment,” the court concluded that Rodgon
made a reasonable decision not to interview the witnesses
that Hampton had named. Id. As for Rodgon’s failure to
fulfill the promise that Hampton would testify in his own
defense,5 the court noted that Rodgon, at the time he made
this statement, believed that Hampton would take the
stand. Id. at 8. Subsequently, however, he discussed with
Hampton the problem of guilt by association, and he also
became concerned that Hampton might not be able to with-
stand the rigors of cross-examination. Id. In the end,
Rodgon had advised Hampton that the choice whether or
not to testify was his to make, and Hampton had decided
not to testify. Id. The court viewed this as a change in trial
strategy that could not support a claim of ineffectiveness.
Id.Judge Sheila O’Brien dissented, reasoning that Hampton
should have had the same opportunity that the State had to
present occurrence witnesses:
This crime occurred in a large area, with hundreds of
people present. Defendant could have been present in
the area and not have participated in the events and
these occurrence witnesses could have corroborative in-
formation. These allegations make a substantial show-
ing of a violation of defendant’s constitutional rights.
Id. at 21. The Illinois Supreme Court subsequently denied
Hampton’s petition for leave to appeal. People v. Hampton,
No. 85803, 705 N.E.2d 443 (Ill. Oct. 6, 1998) (unpublished).
5
The court noted (App. Ct. Order at 8) but did not address
Rodgon’s prediction that the evidence would show Hampton’s lack
of involvement with any gang. Hampton had raised this promise
in his supplemental post-conviction petition (R. 48-5 at 125-27)
and in his appeal (R. 17 Ex. B at 17-18).
No. 01-4186 17
Having exhausted his state court remedies, Hampton filed
a pro se petition for a writ of habeas corpus in the district
court. The court appointed counsel to represent Hampton,
and his attorneys subsequently filed an amended petition
which, in relevant part, re-asserted Hampton’s claim of
ineffectiveness. R. 27. Over the State’s objection, the district
court conducted an evidentiary hearing to explore Rodgon’s
failure to investigate exculpatory witnesses.
Hampton testified at that hearing that during the nine-
month period that he was incarcerated in advance of trial,
Rodgon had met with him at the jail on only one occasion,
for about thirty to forty-five minutes. R. 59-1 at 10, 13.6
During this meeting, which took place shortly after
Hampton was arraigned in January 1982, Hampton told
Rodgon that he had attended the concert with Ronnie
Garner, Clinton Williams, and Gregory Mallory, and that
all three could verify that he was not involved in the at-
tacks and that he was not a gang member. Id. at 13-14. All
three lived in the same building as Hampton, and they
had grown up together. Id. at 14. Hampton gave Rodgon
their contact information. Id. He also pointed out Williams
and Gregory Mallory to Rodgon at subsequent court pro-
ceedings that they attended. Id. at 16. Hampton assumed
that Rodgon would contact them and call them to testify at
trial. Id. at 14, 16, 17. When Rodgon rested the defense case
without calling these witnesses, Hampton asked him why
he had not done so and Rodgon told him not to worry about
the matter. Id. at 18.
6
Hampton did have other two- or three-minute meetings with
Rodgon during this period—in court or in the holding cell adjacent
to the courtroom—but, according to Hampton, on those occasions
Rodgon simply explained to him what had occurred in court that
day or what he expected to happen at the next court date. R. 59-1
at 11.
18 No. 01-4186
Rodgon testified that he believed the State’s case against
Hampton was weak: there was no physical evidence impli-
cating Hampton in the attacks; it was purely an identifica-
tion case. R. 59-1 at 89. Hampton had not given him any
information about potential defense witnesses, and for that
reason Rodgon had not interviewed any such individuals.
Id. at 99-100. Rodgon knew that Hampton lived in the
Robert Taylor Homes and that “numerous people from
there” had attended the concert. Id. at 91. However, he did
not know who these individuals were. Had Hampton given
him the names of potential occurrence witnesses, Rodgon
testified, he would have followed through and spoken to
such witnesses. Id. at 116. Rodgon did not visit the Robert
Taylor Homes in an effort to identify potential witnesses,
nor did he have an investigator do so. Id. at 100-02. With
two immaterial exceptions, Rodgon’s case file contained
no notes reflecting interviews with potential witnesses, al-
though he agreed that such notes would have been in the
file. Id. at 95-99, 151-52.
In a 1987 letter to the Illinois Attorney Registration and
Disciplinary Commission (“ARDC”) responding to a com-
plaint Hampton had filed about his performance, Rodgon
had indicated that he did speak with Hampton about pos-
sible witnesses.
Prior to trial I did talk to [Hampton] concerning wit-
nesses that may or may not be called on his behalf. As
I recall he told me at that time that he was with people
who he had left the Amphitheatre with on a bus. Most
of these people were later arrested and charged with
the crime and plead[ed] guilty. I did not think it appro-
priate for me to put on witnesses who had plead[ed]
guilty to the crime to say that they were with Mr.
Hampton at the time but that he did not participate in
the crime.
R. 58 Petitioner’s Ex. 1D at 3. When asked about the letter
at the evidentiary hearing, Rodgon still maintained that
No. 01-4186 19
Hampton had not given him the names of potential occur-
rence witnesses. Had Hampton done so, Rodgon testified, he
would have sent someone to speak with them. R. 59-1 at
121. Rodgon indicated that he did not contact co-defendant
Ronnie Garner because when defendants plead guilty (as he
knew Garner had), they typically incriminate not only
themselves but their co-defendants. Id. at 123-24. He had
not spoken with any of the other defendants who pleaded
guilty for the same reason; Rodgon did not think it good
strategy to put people who had pleaded guilty on the
witness stand. Id. at 125. He acknowledged, however (at
first reluctantly), that one cannot assess the credibility of a
prospective witness without first talking to him or her. Id.
at 147.
Harold Winston, Hampton’s postconviction attorney, also
testified at the hearing before Judge Kennelly. Winston
recalled that after obtaining Rodgon’s trial file and review-
ing the contents, he asked Rodgon about the lack of any
notes from interviews with Hampton or other witnesses.
Rodgon told Winston that he had given him all that he had.
R. 59-1 at 32. Winston also indicated that in the course of
preparing Hampton’s supplemental postconviction petition,
he had spoken with Gregory Hubbard. Although Hubbard
had given him helpful information, he had ultimately
refused to sign an affidavit in support of Hampton’s peti-
tion. Id. at 54.
W. Michael Fay had represented Ronald Mallory at the
trial. He testified before Judge Kennelly that he went to
the Robert Taylor Homes along with two assistant public
defenders who were representing Ricky Knight to speak
with other people who had attended the concert and had
witnessed the attacks. R. 59-1 at 68-70. Fay did not recall,
however, whether the occurrence witnesses he called to tes-
tify in Mallory’s defense were among the people he spoke to
at the Robert Taylor Homes. Id. at 71. Fay was confident
that, pursuant to Circuit Court rules, he would have given
20 No. 01-4186
Rodgon a copy of Mallory’s witness list. Id. at 73. Gregory
Hubbard was among the witnesses included on that list.
Id. Fay also recalled that he spoke with Rodgon regularly
about the case as they encountered one another in the hall-
ways of the Criminal Courts building. Id. at 79.
Having heard both Hampton and Rodgon testify, Judge
Kennelly credited Hampton’s testimony in relevant part. He
found that Hampton had given Rodgon the names of
potential witnesses but that Rodgon had failed to follow up
with these witnesses. 2001 WL 1518533, at *7-*8. Judge
Kennelly thought that a decision by Rodgon not to pursue
these witnesses might have been strategically justified vis
à vis Garner, who had pleaded guilty to charges arising out
of the incident and who had not contested the government’s
version of events, which implicated Hampton. Id. at *8, *16
n.7. However, the failure to investigate would not have been
justified as to Mallory and Williams. Id. at *8, *16-*17. Not
having interviewed those two individuals, Rodgon had no
strategic basis for dismissing them as prospective wit-
nesses. Id. at *8.
Judge Kennelly further observed that Rodgon admitted
knowing that a group of people who lived at the same
housing project as Hampton had attended the concert,
and that some of those individuals might have witnessed
the attacks. Id. at *8. But Rodgon had made no effort to
locate such individuals. Id. Nor was there any indication
that Rodgon had spoken with the attorneys representing
Hampton’s co-defendants about their witnesses. Id. At least
one of those witnesses—Gregory Hubbard—could have ex-
culpated Hampton. Id. Finally, Rodgon had never asked
Hampton for the names of witnesses who could verify that
he was not in a gang, nor had he made any other efforts to
locate such witnesses. Id.Ronnie Garner also testified at the evidentiary hearing
before Judge Kennelly. At the time of the concert, Garner
No. 01-4186 21
had known Hampton for ten years and was his friend.
According to Garner, Hampton was not a gang member.
Garner had attended the concert along with Ronnie Jack-
son, Sandelle Poole, Ezra Garner (Ronnie’s brother), and
Hampton; Hampton also left the concert with them. During
the concert, Hampton was seated near Ronnie Garner and
was within his sight at all times. Garner testified that
Hampton was not part of the crowd that attacked the three
Latinos. Garner said that no one had ever asked him what
he knew about Hampton’s involvement in the attacks, nor
had anyone asked him to testify on Hampton’s behalf. He
would have testified in Hampton’s defense had he been
asked. Garner himself had been charged with participating
in the attacks, however; and he ultimately had pleaded
guilty (against his lawyer’s advice) and was sentenced
to the six months he had already served in pretrial deten-
tion. On the witness stand before Judge Kennelly, Garner
insisted that he had not, in fact, participated in the attacks,
but had elected to plead guilty in order to avoid a poten-
tially much longer term had he been tried and convicted.
And although he had not contested the version of events
that the prosecutor recited at the change of plea hearing—a
version that had implicated Garner and Hampton both—
neither had he endorsed it as accurate. R. 57-3 at 21-27; see
R. 58, Petitioner’s Ex. 11 at 31-32 (State proffers factual
basis for plea and Judge Strayhorn finds it sufficient to
accept plea but Garner not asked to endorse it); compare id.
at 7 (co-defendant Ford asked to stipulate to State’s prof-
fer). Judge Kennelly found Garner’s testimony to be credi-
ble. 2001 WL 1518533, at *9.
Gregory Mallory, who had been a next-door neighbor and
friend of Hampton’s for about nine years at the time of the
concert, also testified. Gregory had attended the concert,
was seated about five to ten feet from Hampton, and said
that Hampton was not near the attacking crowd. As noted
above, Gregory’s brother Ronald Mallory was tried along
22 No. 01-4186
with Hampton, and Gregory had testified in Ronald’s (suc-
cessful) defense. Although Gregory said that he would have
testified on Hampton’s behalf, Hampton’s attorney had
never contacted him. Gregory had begun using heroin in
1989, and was still addicted to the narcotic when the evi-
dentiary hearing took place in 2001. He was convicted
of felony theft in 1981, and for heroin possession in 1994.
Although Gregory did not believe that his longtime abuse of
heroin had affected his memory, he answered a number of
the questions put to him with answers like “okay” and “I
guess so,” and he was unable to recall certain details about
the concert (e.g., precisely what row he sat in) and about the
trial (including the fact that it involved three juries). But
Gregory had not been a heroin user at the time of the
concert or at the time of Hampton’s trial. And although
Judge Kennelly characterized Mallory’s memory as imper-
fect, he found his testimony credible nonetheless.
Unsurprisingly, given the passage of time and the
effects of heroin use, [Gregory Mallory’s] memory of the
incident has faded a bit. But the issue is not whether he
would make a good witness if Hampton’s trial were held
today, but what effect his testimony might have had at
the 1982 trial. The Court finds that Mallory would have
made an effective defense witness at that trial.
2001 WL 1518533, at *9.
Clinton Williams died in July 1995, six years before the
evidentiary hearing took place. He too had been a friend of
Hampton’s and had attended the concert. Williams was
alive at the time that Hampton had petitioned for post-
conviction relief in state court and had signed an affidavit
in support of that petition indicating that Hampton had
not participated in the attacks. R. 48-5 at 180-81. Judge
Kennelly discerned no reason to believe that Williams
would not have been a credible witness on Hampton’s be-
No. 01-4186 23
half. 2001 WL 1518533, at *9. The judge pointed out that
there was no evidence linking Williams to the group that
had perpetrated the attacks. Id.Before reaching the merits of Hampton’s failure-to-
investigate claim, the district judge determined that there
were no procedural obstacles that precluded either the evi-
dentiary hearing he had convened or consideration of the
merits of the claim. The court first concluded that Hampton
had fairly presented the claim in state court and thus had
exhausted his state court remedies with respect to that
claim. See 28 U.S.C. § 2254(b)(1), (c); O’Sullivan v. Boerckel,
526 U.S. 838, 844-45, 119 S. Ct. 1728, 1732 (1999); Picard
v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512
(1971). This was so, in the court’s view, notwithstanding
Hampton’s failure to submit an affidavit from Gregory
Mallory in support of his postconviction petition. 2001 WL
1518533, at *10. As the court observed, a claim advanced
in a federal habeas petition may be said to have been fairly
presented to the state courts so long as that claim is funda-
mentally the same claim that the petitioner asked the state
courts to resolve. Id. at *10, citing Boyko v. Parke, 259 F.3d
781, 789 (7th Cir. 2001). This was true of Hampton’s inef-
fectiveness claim, the judge reasoned. Although Hampton
had not tendered an affidavit from Gregory Mallory to
substantiate the ineffectiveness claim (as he had from
Williams and Garner), Hampton had, in his own affidavit,
averred that Gregory’s name was among those he had given
to his attorney as a witness, and Hampton had argued in
his petition that Rodgon should have contacted and inter-
viewed Gregory. Under these circumstances, Hampton’s
federal claim was not materially different from the one
Hampton had pursued in state court. 2001 WL 1518533, at
*10.
Nor did Hampton’s failure to submit an affidavit from
Gregory constitute a procedural default that barred federal
consideration of the ineffectiveness claim. Id. at *11; see
24 No. 01-4186
Harris v. Reed, 489 U.S. 255, 261-62, 109 S. Ct. 1038, 1042
(1989). Although the Illinois Appellate Court had noted the
absence of an affidavit from Gregory in its discussion of the
claim, it had nonetheless addressed the merits of the claim
in its entirety and without relying on the procedural flaw of
the missing affidavit. Because the state court chose to
ignore this default, Judge Kennelly reasoned, it posed no
obstacle to federal consideration of the ineffectiveness
claim. 2001 WL 1518533, at *11.
Next, the judge found that a federal statutory restriction
on evidentiary hearings in habeas proceedings did not fore-
close the court from hearing testimony in support of
Hampton’s ineffectiveness claim. Id. at *12-*14. Subject to
narrow exceptions, 28 U.S.C. § 2254(e)(2), added by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), forbids a district court from holding an eviden-
tiary hearing on a habeas claim if the petitioner failed to
develop the factual basis of that claim in state court. As the
district court acknowledged, we have held that this limita-
tion applies not just to an evidentiary hearing, but to any
means used in lieu of such a hearing to expand the record
in order to introduce new factual information. 2001 WL
1518533, at *12, citing Boyko, 259 F.3d at 790. The State
argued that section 2254(e)(2) constrained the court’s abil-
ity not only to convene an evidentiary hearing, but also its
ability to consider the affidavit from Gregory Mallory that
Hampton had submitted in support of his habeas petition,
given that Hampton had not submitted an affidavit from
Gregory in support of his postconviction petition in state
court. But this provision forecloses an expansion of the
record only if the habeas petitioner’s failure to develop the
record appropriately in state court was due to the peti-
tioner’s lack of diligence or some larger fault attributable
to the petitioner or his counsel. See Williams v. Taylor, 529
U.S. 420, 432, 120 S. Ct. 1479, 1488 (2000); see also
Matheny v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001)
No. 01-4186 25
(quoting Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir.
1997), cert. denied, 522 U.S. 990, 118 S. Ct. 462 (1997)),
cert. denied, 535 U.S. 1030, 122 S. Ct. 1635 (2002).
In the district court’s view, there was no evidence that
Hampton had been anything but diligent in pursuing his
ineffectiveness claim in state court. 2001 WL 1518533, at
*12. Although the materials in support of Hampton’s
post-conviction petition did not include an affidavit from
Gregory, Hampton had identified Gregory in his own affi-
davit, averring that he had given Gregory’s name and con-
tact information to Rodgon as an eyewitness who might
testify on his behalf. The court also noted that Hampton
had asked the lower state court to conduct an evidentiary
hearing but that the State had opposed a hearing and the
state court had refused to conduct one. Had a hearing been
held, the court theorized, “it is overwhelmingly likely that
[Gregory] Mallory would have been called to testify.” Id. at
*12. Consequently, although the state court record lacked
an affidavit from Gregory that outlined what his testimony
on Hampton’s behalf might have been (had Rodgon pursued
him as a witness), that omission could not be ascribed to a
lack of diligence on Hampton’s part. “Having been rebuffed
at the prosecution’s request in his attempt to make a com-
plete record in state court, Hampton cannot be faulted for
his failure to do so or accused of a lack of diligence.” Id.7
7
The court reached a different conclusion with respect to the af-
fidavit of Farod Poole, which Hampton had submitted in support
of his supplemental habeas petition. According to that affidavit,
Poole was with Hampton at the concert, he had witnessed the
attacks, and he saw that Hampton was not a participant. R. 27
Ex. E ¶ 5. Poole was not mentioned in Hampton’s supplemental
postconviction petition, however, and no affidavit from him was
tendered to the state postconviction court. Although the district
court remained convinced that Hampton had fairly presented his
(continued...)
26 No. 01-4186
Having thus determined that the AEDPA posed no bar to
taking additional evidence on Hampton’s claim, the court
turned to pre-AEDPA standards. See Matheny, 253 F.3d
at 1039. Under those rules, an evidentiary hearing on a
habeas petitioner’s claim is required if the petitioner has
alleged facts that would entitle him to relief and the state
courts, for reasons beyond his control, did not consider
his claim in a full and fair hearing. See Townsend v. Sain,
372 U.S. 293, 312-13, 83 S. Ct. 745, 757 (1963), overruled
on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1,
112 S. Ct. 1715 (1992); Wright v. Gramley, 125 F.3d 1038,
1044 (7th Cir. 1997). A full and fair hearing is one that af-
forded the petitioner a complete opportunity to present
the facts relevant to his constitutional claim. See Matheny,
253 F.3d at 1039; Spreitzer v. Peters, 114 F.3d 1435, 1456 &
n.9 (7th Cir. 1997), disposition clarified, 127 F.3d 551 (7th
Cir. 1997), cert. denied, 522 U.S. 1120, 118 S. Ct. 1060(1998). Judge Kennelly found that the Illinois post-convic-
tion court, when it dismissed the relevant portion of
Hampton’s postconviction petition without a hearing, had
deprived Hampton of this opportunity:
The state court did not permit Hampton to explore his
trial counsel’s reasons—if he had any—for failing to
interview and call the witnesses whose names Hampton
had given him. Nor did it permit him to address the is-
7
(...continued)
ineffectiveness claim to the state courts (because Poole’s affidavit
did not alter the nature of Hampton’s claim), see 2001 WL
1518533, at *11, it found that consideration of Poole’s affidavit
was barred under section 2254(e)(2), id. at *14. Hampton had not
established in state court what Poole’s testimony would have
been, nor had he offered any explanation for the omission. Id. “Un-
der the circumstances, the Court has no alternative but to find
that Hampton lacked due diligence in state court in this regard,
thus barring this Court’s consideration of Poole’s affidavit.” Id.No. 01-4186 27
sue of prejudice, which would have required consider-
ation of the effect of [those witnesses’] testimony.
2001 WL 1518533, at *13.8 The judge pointed out that in
both Matheny and Bruce v. United States, 256 F.3d 592, 600
(7th Cir. 2001), we had concluded that an evidentiary hear-
ing was necessary in order to evaluate the ineffectiveness
claims asserted in those cases. Judge Kennelly believed
that this was true here as well. Testimony from Hampton’s
counsel as well as Hampton’s proposed witnesses would en-
able the court to assess the adequacy of Rodgon’s represen-
tation of Hampton and to determine whether Hampton was
prejudiced by Rodgon’s failure to interview (and summon to
testify) Hampton’s witnesses. 2001 WL 1518533, at *13.
The Illinois Appellate Court had said that Rodgon’s
failure to follow up with Hampton’s occurrence witnesses
was based on a strategic decision to avoid the specter of
guilt by association that such witnesses might have raised
or enhanced (App. Ct. Order at 7); but the district court
found to the contrary. Although section 2254(e)(1) provides
that state court findings of fact are owed a presumption of
8
Although the court’s analysis on this point was framed in terms
of Gregory alone, the focus properly is on the need to hear him
and the other witnesses Hampton has identified testify. Section
2254(e)(2) and procedural default rules deal with whether the un-
derlying factual basis for the claim was adequately developed in
state court and whether state procedural rules were followed. The
Townsend analysis, by contrast, addresses the need for the federal
habeas court to conduct an evidentiary hearing in order to fairly
resolve the petitioner’s claim. Here, for example, that analysis
considers whether it is necessary to hear Hampton’s witnesses
testify or whether his failure-to-investigate claim can be resolved
solely on the affidavits, as the state courts did. This analysis
therefore must take into consideration not only Gregory’s prof-
fered testimony, but the entire body of evidence relevant to
Hampton’s claim.
28 No. 01-4186
correctness, no such presumption was warranted here, in
the district court’s view. 2001 WL 1518533, at *15. The
state court’s finding was “entirely speculative,” with no
basis in the record before the state courts. Id. The only
evidence that Rodgon was concerned about guilt by associa-
tion came from a limited hearing that the state trial court
had conducted on Hampton’s separate claim regarding
Rodgon’s failure to have Hampton himself testify. Id.; see
n.4, supra; R.48-7 at D32-33. Rodgon’s rationale for not
calling Hampton to the witness stand could not be “trans-
mogrified” into an explanation for his failure to conduct an
adequate pretrial investigation, the district court reasoned.
2001 WL 1518533, at *15. Moreover, even if the appellate
court’s characterization of Rodgon’s conduct as “strategic”
were presumed correct, Hampton had succeeded in rebut-
ting that presumption by clear and convincing evidence.
Id.; see § 2254(e)(1). The court found that Rodgon had no
reason not to follow up on the eyewitness information that
Hampton had given him or not to make his own effort to
identify other occurrence witnesses. Rodgon had conceded
on the witness stand that an attorney cannot decide wheth-
er to call a witness who is not also a co-defendant without
first interviewing that witness, barring some other external
factor known to the attorney (such as a significant felony
record or the immateriality of the witness’s testimony) that
detracts from the value of that witness’s possible testimony.
2001 WL 1518533, at *15.
The district court also viewed the appellate court’s
strategy determination as either contrary to or an unrea-
sonable application of Strickland’s observation that strate-
gic choices based on something less than a complete investi-
gation are reasonable to the extent that reasonable profes-
sional judgment would support limits on that investigation.
Id. at *16; see Strickland v. Washington, supra, 466 U.S. at
690-91, 104 S. Ct. at 2066. Here, there was no evidence of
No. 01-4186 29
any judgment at all on Rodgon’s part, and it was not the
court’s duty to fill that void with its own judgment. 2001
WL 1518533, at *16.
Where the prosecution relies heavily on eyewitness tes-
timony that might be rebutted by other eyewitnesses, the
district court emphasized, the attorney’s duty to investi-
gate such witnesses is critical. Id. In this case, Rodgon had
cross-examined the State’s witnesses and exposed the
weaknesses in their identifications of Hampton, but he
made no effort to determine whether Hampton had more of
a defense than that. Id. Cases including Washington v.
Smith, 219 F.3d 620, 631-32 (7th Cir. 2000); Williams v.
Washington, 59 F.3d 673, 681 (7th Cir. 1995); Harris v.
Reed, 894 F.2d 871, 878-79 (7th Cir. 1990); and Sullivan v.
Fairman, 819 F.2d 1382, 1389 (7th Cir. 1987), support the
notion that the failure to investigate exculpatory witnes-
ses can amount to ineffective assistance of counsel. 2001
WL 1518533, at *17-*18. Rodgon’s ineffectiveness was not
limited to his failure to interview the eyewitnesses that
Hampton had identified for him, but included his failure to
make an effort of his own to locate other eyewitnesses. Id.
at *18. The court noted that if Rodgon simply had paid
attention to the witness lists of Hampton’s co-defendants,
he would have found at least one witness (Gregory Hub-
bard) who could have exonerated Hampton. Id.The district court believed that Rodgon was also ineffec-
tive for failing to look for witnesses who could confirm that
Hampton was not a gang member. Id. at *18-*19. The
Illinois Appellate Court had written this omission off as a
failure to call witnesses who might have testified that
Hampton was a “decent person.” App. Ct. Order at 16. But
Hampton’s supplemental postconviction petition, along with
the affidavits he had submitted in support of that petition,
made clear that the gist of such witnesses’ testimony was
not simply that Hampton was of good character, but that
30 No. 01-4186
he was not a gang member. 2001 WL 1518533, at *19. Gang
affiliation was made relevant by the strong overtones of
gang activity that Powell had observed in the group of men
he saw marching toward the stage of the theater (the
chanting of gang slogans and hand signals). The unfulfilled
promise that Rodgon made in his opening statement—that
the jury would hear evidence that Hampton was not in-
volved in a gang—revealed that Rodgon was aware of the
importance of this issue. Id. at *18. Proof that Hampton had
no gang connections would have tended to undercut testi-
mony that he was part of the group that attacked the three
victims. Id. at *19. Yet Rodgon had never so much as asked
Hampton for the names of individuals who could attest to
his lack of gang involvement. Id.The Illinois Appellate Court had also held that even if
Rodgon had rendered ineffective assistance, Hampton could
not demonstrate that he was prejudiced by his attorney’s
performance. App. Ct. Order at 5. “In light of the over-
whelming evidence of defendant’s guilt, i.e., two of the vic-
tims and a security guard identified defendant, defendant
cannot establish that but for his defense counsel’s perfor-
mance the outcome of his trial would have been different.”
Id. The district court concluded that this one-sentence
disposition of the prejudice prong of the ineffectiveness in-
quiry amounted to an unreasonable application of Strick-
land.
In the district court’s view, the State’s case against
Hampton was “far from unassailable.” 2001 WL 1518533, at
*19. Heinrichs, the security guard, conceded that on the
night of the attacks he had only seen the assailant he later
identified as Hampton for three or four seconds, and he had
not picked Hampton out of a line-up until after he had seen
Hampton’s picture in a television news report. Id. Denise
M. and Martha N. likewise had only gotten brief glimpses
of Hampton and had been unable to describe him except as
No. 01-4186 31
an African-American male for the police. Id. Hugo M. never
identified Hampton notwithstanding the fact that he was at
Denise M.’s side during the assault. Id. Each of the wit-
nesses who identified Hampton had witnessed the assault
“under extremely stressful . . . near-riot conditions.” Id. at
*19.
The fact that the jury acquitted Hampton of the attempt-
ed rape of Martha N. demonstrated the likelihood that the
testimony of exculpatory occurrence and other witnes-
ses might have produced a different outcome on the other
charges. Id. at *20. Martha N. had identified Hampton as
one of her attackers, and had done so under the same cir-
cumstances as the other two witnesses who identified
Hampton. But in Martha N.’s case, the record had supplied
a basis to challenge her identification—the written report
indicating that Martha N. had picked from the line-up
someone other than Hampton. Notwithstanding testimony
from a detective that the written report was erroneous, the
jury’s decision to acquit Hampton on this charge suggested
to the district court that the jury had doubts about the
strength of Martha N.’s identification. Id. This in turn in-
dicated to the court that if the jury had been given reason
to doubt the identifications by Denise M. and the guard be-
yond arguments about the circumstances under which they
had seen the assailant, it was reasonably likely that the
jury’s decision on the other charges might have been dif-
ferent as well. Id.Rodney Mallory’s acquittal on all charges supplied addi-
tional, “powerful evidence” that an adequate investigation
into defense witnesses might well have produced a different
result for Hampton. Id. at *20. Mallory’s attorney had put
on the very type of eyewitness testimony that Rodgon had
failed to pursue, including Rodney’s brother Gregory, whom
Hampton had cited to Rodgon as an eyewitness. Id. Rodney
Mallory was acquitted notwithstanding the testimony of
32 No. 01-4186
Denise M. that he had attempted to place his penis in her
mouth and the testimony of Keith Powell that Rodney was
among the group of individuals who walked toward the
stage of the Amphitheatre. Id. True, no security guard had
identified Rodney. Id. Even so, the favorable outcome for
Rodney Mallory persuaded the district court that it was
reasonably probable that a defense founded in part upon
exculpatory occurrence witnesses would have resulted in
Hampton’s acquittal. Id.The district court found further that Rodgon’s failure to
investigate and present witnesses to establish Hampton’s
lack of gang affiliation, although not dispositive by itself,
was also “highly prejudicial” to Hampton. Id. Gang affilia-
tion was an aspect of the prosecution’s case that tended to
buttress the witnesses’ identification of Hampton. Id. Sow-
ing doubt about the notion that Hampton would have parti-
cipated in gang-related activity thus would have given the
jury reason to question the identification of Hampton. Id.Rodgon’s failure to keep the promise he made during
opening that Hampton would testify in his own defense re-
inforced the district court’s conclusion that Rodgon’s repre-
sentation of Hampton was ineffective. Id. at *21-*22. The
Illinois Appellate Court had chalked up Hampton’s failure
to testify to a change in trial strategy driven by Rodgon’s
concern over the prospect of guilt by association. App. Ct.
Order at 8. Had Hampton testified, he would have admitted
that he was present at the scene of the crime and that he
arrived and left with others implicated in the attacks. But
if that prospect was what worried Rodgon, the district court
noted, it was a possibility that was as apparent before trial
as it was when the time came to decide whether Hampton
would take the witness stand; there was no indication that
anything relevant to the guilt-by-association concern had
changed over the course of the trial. 2001 WL 1518533, at
*21. Consequently, the district court believed, it was “fool-
hardy and objectively unreasonable for [Rodgon] to promise
No. 01-4186 33
that Hampton would testify.” Id. The court acknowledged
that an attorney’s failure to keep a promise made in an
opening statement will rarely supply the basis for an in-
effectiveness claim. Id. In this case, however, nothing
occurred during the State’s case against Hampton that
altered the pros and cons of Hampton taking the stand.
Id. at *21-*22. True, had he testified, Hampton would
have had to explain his presence at the scene of the crime,
but, the court pointed out, Rodney Mallory had been able
to do so successfully. Id. at *22. Under the circumstances,
the court found it objectively unreasonable for Rodgon to
make and then abandon the promise that Hampton would
take the stand. Id. “The Appellate Court’s contrary conclu-
sion, based on a finding that was without any support
in the record, was an unreasonable application of Strick-
land.” Id. Rodgon’s failure to fulfill the promise, the district
court went on, was also prejudicial to Hampton. Id.Hampton’s failure to take the stand as promised gave rise
to a negative inference about what the content of his tes-
timony might have been. Id. The court could not say that
this alone likely affected the outcome of the trial. However,
the decision not to keep the promise “significantly buttres-
se[d]” the court’s conclusion that Rodgon’s overall perfor-
mance likely did influence the outcome. Id.Having concluded that Hampton was deprived of the
effective assistance of counsel, Judge Kennelly granted his
petition for a writ of habeas corpus. He ordered Hampton
released from prison unless, within thirty days, the State
announced its intent to retry Hampton. Id. at *25. The
State appealed, and subsequently it asked the district court
to stay its judgment. Hampton in turn asked the court to
order his release pending appeal. By this time, Hampton
had been incarcerated for twenty years, but even with cred-
it for good time, he could not expect to be discharged from
prison prior to January 2012. After weighing the equities,
Judge Kennelly stayed the judgment to the extent of reliev-
34 No. 01-4186
ing the State, pending appeal, of the obligation to announce
its intent to retry Hampton within thirty days. Hampton v.
Leibach, No. 99 C 5473, 2001 WL 1618737, at *3 (N.D. Ill.
Dec. 18, 2001). The judge also ordered Hampton released
from prison on bond pending appeal. Id. at *2-*3.
Hampton’s release was conditioned on his sister’s willing-
ness to execute a quitclaim deed on her home as security.
Id. at *3. He also required Hampton to “live with his sister
in her home, restrict his travel to the State of Illinois, make
reasonable efforts to seek employment, and avoid contact
with the victims of the offenses with which he was charged
in state court.” Id. Although this court subsequently stayed
Hampton’s release pending appeal, United States Supreme
Court Justice John Paul Stevens, acting as Circuit Justice,
granted Hampton’s application to vacate that stay, and the
full Court subsequently declined to overturn his order. On
January 28, 2002, this court ordered Hampton released at
such time as the district court’s conditions on his release
were satisfied.
II.
A. Evidentiary Hearing
The State’s initial contentions on appeal concern the
district court’s decision to conduct an evidentiary hearing
on Hampton’s ineffectiveness claim. The State does not
quarrel with the lower court’s determination that Hampton
fairly presented his failure-to-investigate claim to the state
courts. See § 2254(b)(1), (c); Boyko, 259 F.3d at 788-89. But
for three reasons, the State contends that the decision to
hold a hearing on that claim was, either in part or in whole,
erroneous: (1) Hampton did not submit an affidavit from
Gregory Mallory in support of his supplemental petition for
postconviction relief, and to that extent failed to develop the
factual basis for his claim in state court; (2) Hampton’s
failure to tender an affidavit from Gregory in state court,
No. 01-4186 35
which the Illinois Appellate Court noted, amounts to a
procedural default that bars federal consideration of the
ineffectiveness claim; and (3) there was, in any case, no
need for an evidentiary hearing because there were no
factual disputes that required a hearing to resolve.
1. Failure to Submit Affidavit from Gregory Mallory.
As the district court recognized, section 2254(e)(2) bars
a district court from conducting an evidentiary hearing
or otherwise permitting an expansion of the evidentiary
record in support of a habeas claim if the petitioner failed
to develop the factual basis for his claim in state court. In
the supplemental postconviction petition that Hampton
filed in state court, Hampton identified the occurrence wit-
nesses whose names he had allegedly given to Rodgon,
he submitted his own affidavit averring that he supplied
Rodgon with their names and contact information, and
he submitted affidavits from two of those witnesses—
Williams and Garner—which in turn confirmed that they
would have given exculpatory testimony on Hampton’s
behalf. But Hampton did not submit an affidavit from
Gregory Mallory. As we have noted, Hampton’s post-
conviction counsel, Harold Winston, testified at the eviden-
tiary hearing in the district court, and Winston explained
that he had interviewed Gregory, that Gregory had pro-
vided helpful information, but that Gregory had been un-
willing to sign an affidavit reflecting that information and
that Winston lacked the authority to compel him to do so.
R.59-1 at 54-55. The State contends that in failing to tender
an affidavit from Gregory Mallory, Hampton failed to devel-
op the basis for his ineffectiveness claim.
It is not entirely clear from the briefing whether the State
believes that this omission wholly forecloses all expansion
of the record in support of Hampton’s ineffectiveness claim,
or only the submission and consideration of Gregory’s af-
36 No. 01-4186
fidavit and testimony. We shall assume that the State
means only to argue that Hampton is foreclosed from tend-
ering Gregory’s affidavit and testimony, as it is otherwise
clear that Hampton tendered affidavits from Williams and
Garner in state court and thus developed his ineffectiveness
claim to that extent. This is consistent with the State’s pre-
sentation at oral argument. There its counsel argued, in es-
sence, that a failure-to-investigate claim akin to Hampton’s
is both defined and limited by the particular witnesses that
the petitioner charges his counsel with failing to contact. In
other words, a failure to investigate claim supported by the
affidavits of two exculpatory eyewitnesses (like Garner and
Williams) is a claim based on those two witnesses alone;
and if the petitioner at a later date presents affidavits from
additional eyewitnesses that counsel failed to contact, he
has inevitably transformed his ineffectiveness claim into a
new claim with a distinct factual basis. Thus, in the State’s
view, if the affidavits of those additional witnesses were not
presented to the state courts, then section 2254(e)(2) pre-
cludes the petitioner from relying on those witnesses in
federal court, because they represent a factual basis for the
ineffectiveness claim that was never developed in state
court.
Whether the State is correct to parse the failure-to-inves-
tigate claim and its factual basis in this way is a matter on
which we reserve judgment. The essence of Hampton’s
claim is that there were multiple eyewitnesses to the at-
tacks who could have exonerated him and that his counsel
failed to contact any of them. In support of that claim, he
presented the affidavits of two of those witnesses (Garner
and Williams) to the state postconviction court, in this way
documenting the nature of the exculpatory testimony that
was available had his counsel pursued this line of investiga-
tion. Mallory’s proffered testimony was not materially
different from that of Garner or Williams and so did not
alter the basic nature of Hampton’s ineffectiveness claim;
No. 01-4186 37
his was just one more iteration of the exculpatory testimony
that was available to the defense but not investigated
by Rodgon. In that sense, the failure to tender an affidavit
from Gregory to the state court arguably did not constitute
a failure to develop the factual basis for the ineffective-
ness claim for purposes of section 2254(e)(2)—that basis
was fleshed out with the affidavits of Garner and Williams.
We need not resolve the point, however. We may assume
that the omission of Gregory’s affidavit from Hampton’s
postconviction petition might preclude him from presenting
Gregory’s affidavit and testimony in federal court if the
omission was attributable to a lack of diligence on
Hampton’s part.
As the district court noted, a petitioner’s failure to devel-
op the factual basis of his habeas claim in state court will
bar expansion of the record in federal court only if this fail-
ure was due to a lack of diligence or some greater fault
attributable to the petitioner himself. Williams v. Taylor,
supra, 529 U.S. at 432, 120 S. Ct. at 1488; Burris v. Parke,
supra, 116 F.3d at 258-59; see also, e.g., Newell v. Hanks,
283 F.3d 827, 838 (7th Cir. 2002). The relevant inquiry is
thus not simply whether the petitioner theoretically could
have discovered the evidence while he was still in the state
forum, but whether he made appropriate efforts to locate
and present that evidence to the state courts. See Williams,
429 U.S. at 435, 120 S. Ct. at 1490. Winston’s testimony
in the district court reveals that he had spoken with
Gregory, that he had obtained information from Gregory
that would have supported Hampton’s claim, but that, in
the end, Gregory refused to sign the affidavit. R. 59-1 at 54.
Hampton argues that his failure to submit an affidavit from
Gregory was thus due to circumstances beyond his control
(Gregory’s refusal to cooperate) and not to his own lack of
diligence or some other fault that may deemed his responsi-
bility. Notably, the State does not quarrel with the notion
that a witness’s refusal to execute an affidavit may excuse
38 No. 01-4186
the petitioner’s failure to develop the record as to that
witness’s prospective testimony. See State Br. at 34-39; see
also Newell, 283 F.3d at 838. It makes two other arguments
instead. First, it suggests that this court erred in Burris
when it held that the failure to develop the factual basis
of a claim will preclude an evidentiary hearing under
section 2254(e)(2) only if the failure is attributable to the
petitioner. In the State’s view, the AEDPA bars expansion
of the record at the federal level even when the petitioner
and his counsel are not to blame for failing to develop the
factual basis for the claim in state court. State Br. at 35.
Second, the State argues that if Hampton attempted but
was unable to procure an affidavit from Gregory, his at-
torney should have executed an affidavit to that effect and
presented that affidavit to the state postconviction court.
State Reply Br. at 2.
The State’s first argument is untenable given the Su-
preme Court’s intervening opinion in Williams. The Court
in Williams did not construe section 2254(e)(2) to bar an
evidentiary hearing whenever the underlying facts were not
developed in state court. The Court instead held that evi-
dentiary expansion is foreclosed only when the failure to
develop the factual record sooner is due to “a lack of dili-
gence, or some greater fault, attributable to the prisoner or
the prisoner’s counsel.” 529 U.S. at 432, 120 S. Ct. at 1488.
The rule that we announced in Burris is consistent with
Williams; indeed, the Court cited Burris (among other
authorities) with approval. Ibid.The State’s second argument misapprehends the nature
of the inquiry called for by section 2254(e)(2). The State
faults Hampton and his counsel for not making a record in
state court as to counsel’s inability to obtain an affidavit
from Gregory. But when the petitioner has not fully de-
veloped the factual basis for his claim in state court, it is
the federal court that must decide whether that omission
No. 01-4186 39
forecloses expansion of the record pursuant to section
2254(e)(2). To the extent that the state court record sheds
light on whether the petitioner could have developed the
facts underlying his claim while he was still in the state
forum, it is obviously relevant to this inquiry. Cf. Williams,
529 U.S. at 437-40, 120 S. Ct. at 1491-92 (references to
psyciatric record in state court proceedings demonstrated
that petitioner, if diligent, could have located report and
raised its non-disclosure in state habeas proceeding). But
when the reason is not self-evident from the state record,
nothing in section 2254(e)(2) precludes the petitioner from
supplying the explanation when he arrives in federal court.
See id. at 440-44, 120 S. Ct. at 1492-94 (relying on federal
court record to determine that petitioner’s failure to develop
factual basis for two of his claims was not due to lack of
diligence on petitioner’s part); Boyko, 259 F.3d at 791-92(remanding for determination by district court as to peti-
tioner’s diligence). Hampton’s postconviction counsel, in his
testimony before the district court, detailed the unsuccess-
ful effort he had made to obtain an affidavit from Gregory.
In deciding whether expansion of the record was appropri-
ate, the district court was free to consider that and any oth-
er evidence that placed into context Hampton’s failure to
completely develop the basis for his ineffectiveness claim in
state court.9 As we have said, the State has not disputed the
9
Although section 2254(e)(2) does not require the petitioner to
have explained his failure to develop the factual basis for his
claim while still in the state forum, we acknowledge that the
Illinois Post-Conviction Hearing Act did require Hampton either
to attach to his postconviction petition “affidavits, records, or oth-
er evidence supporting its allegations” or to explain “why the same
are not attached.” Ill. Stat. Ann. Ch. 38 ¶ 122-2 (Smith-Hurd
1990). Thus, Hampton and his counsel should have explained to
the state postconviction court that their failure to submit an
affidavit from Gregory Mallory was due to Gregory’s refusal to
(continued...)
40 No. 01-4186
notion that a witness’s refusal to cooperate with the
petitioner may suffice under section 2254(e)(2) to excuse the
petitioner’s failure to tender that witness’s testimony in the
state forum. In the absence of such an argument, we shall
assume that Hampton did demonstrate diligence not with-
standing his failure to submit an affidavit from Gregory
Mallory in support of his postconviction petition.
2. Procedural Default
When it addressed Hampton’s ineffectiveness claim, the
Illinois Appellate Court pointed out that Hampton had
attached affidavits from both Williams and Garner to his
petition for postconviction relief, but not one from Gregory.
App. Ct. Op. at 6. The Illinois Post-Conviction Hearing Act
requires a petitioner to attach to his petition affidavits (or
other evidence) supporting the factual allegations of the pe-
tition. See Ill. Stat. Ann. Ch. 38 ¶ 122-2 (Smith-Hurd 1990),
now codified at 725 Ill. Comp. Stat. 5/122-2. Thus, a claim
that trial counsel failed to investigate and call to testify
a particular witness should be supported by an affidavit
from that witness. People v. Enis, 743 N.E.2d 1, 13 (Ill.
9
(...continued)
sign such an affidavit, just as the State suggests. Had the Illinois
courts relied on the lack of such an explanatory affidavit as a
reason to disregard Gregory’s potential testimony on Hampton’s
behalf, Hampton’s failure to explain to the state courts why he
had not submitted an affidavit from Gregory might have consti-
tuted a procedural default barring the federal courts from con-
sidering Gregory’s testimony. As we note below, however, al-
though the Illinois Appellate Court noted that Hampton had not
submitted an affidavit from Gregory, it did not rely on the missing
affidavit in disposing of Hampton’s ineffectiveness claim; neither
did it note or rely on the lack of an explanation for the missing
affidavit.
No. 01-4186 41
2000), cert. denied, 533 U.S. 908, 121 S. Ct. 2254 (2001).
Hampton’s failure to tender an affidavit from Gregory was
in apparent violation of that requirement. The State con-
tends that this procedural default, which the Appellate
Court noted, constitutes an adequate and independent state
procedural ground for the court’s decision that precludes the
federal courts from reaching the merits of his constitutional
claim insofar as it rests on Gregory’s testimony. See Stewart
v. Smith, 536 U.S. 856, 860, 122 S. Ct. 2578, 2581 (2002);
Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546,
2553-54 (1991).
However, because the state court did not rely on
Hampton’s purported default in disposing of his ineffective-
ness claim, we may reach the merits of the claim. A peti-
tioner’s procedural default will bar federal habeas review
only if the state court actually relied on that default as an
independent basis for its decision. Harris v. Reed, supra,
489 US. at 261-62, 109 S. Ct. at 1042. Here, the Illinois Ap-
pellate Court (the last state court to address the ineffective-
ness claim) did no more than note Hampton’s failure to sub-
mit an affidavit from Gregory Mallory. App. Ct. Order
at 6. The court gave no hint that the missing affidavit con-
strained or influenced its resolution of the claim in any way.
The court proceeded to plenary consideration of the merits
of the claim, referring collectively to the witnesses that
Hampton claimed his attorney had failed to investigate as
“these witnesses,” without drawing any distinction between
Williams and Garner, whose affidavits had been attached
to Hampton’s petition, and Gregory Mallory. App. Ct. Order
at 7. Under these circumstances, we find no adequate and
independent state procedural ground that forecloses or
limits our consideration of Hampton’s ineffectiveness claim.
See, e.g., Farmer v. Litscher, 303 F.3d 840, 846 (7th Cir.
2002); Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002).
The State makes a similar argument with respect to
Gregory Hubbard. Hubbard’s name was not among those
42 No. 01-4186
that Hampton had given to Rodgon. Rather, the district
court cited Hubbard as an example of an exculpatory
witness whom Rodgon would have discovered had he made
a rudimentary effort of his own to identify such witnesses.
2001 WL 1518533, at *8. Recall that Hubbard had testified
on Ronald Mallory’s behalf and, among other things,
claimed that Hampton did not participate in the attacks.
R. 48-3 at 1132-33, 1145. As was the case with Gregory
Mallory, Hampton did not attach an affidavit from Hubbard
to his postconviction petition, and the State thus contends
that Hampton procedurally defaulted his ineffectiveness
claim insofar as it relied on Hubbard as a prospective wit-
ness.10
Hubbard, however, occupies a unique place among the
witnesses that Rodgon might have summoned on Hampton’s
behalf, in that the trial record itself revealed the substance
of Hubbard’s testimony. When he testified for Ronald
Mallory, Hubbard had not only exculpated Mallory but also
Hampton (Tr. 1132, 1145); it was simply the case that
Hampton’s jury never heard this testimony. Given the
existing record of Hubbard’s testimony, there was no real
need for Hampton to submit an affidavit from Hubbard in
order to substantiate the claim that he would have been
a helpful witness. See People v. Johnson, 700 N.E.2d 996,
1003 (Ill. 1998) (lack of affidavit or other evidence not fatal
to postconviction claim if petitioner’s allegations are uncon-
tradicted and clearly supported by record), cert. denied, 526
10
It is not clear whether the State also means to invoke section
2254(e)(2) in pressing this argument. However, for the same
reasons we conclude below that the failure to submit an affidavit
from Hubbard in state court did not constitute a procedural de-
fault barring Hampton from relying on Hubbard’s testimony, we
would also conclude that Hampton did not fail to develop the
factual basis for his failure-to-investigate claim insofar as it rests
on Hubbard’s testimony.
No. 01-4186 43
U.S. 1009, 119 S. Ct. 1150 (1999). As it was, Hampton not
only named Hubbard in his supplemental postconviction
petition, but cited the testimony he had given on behalf of
Ronald Mallory. R. 48-5 at 119. That testimony was in the
record, the entirety of which the postconviction judge said
she had considered before dismissing his failure-to-investi-
gate claim. R. 48-7 at C3, C31. Hampton did not, therefore,
commit a procedural default in state court that precludes
him from relying upon Hubbard’s testimony.11
3. Need for an Evidentiary Hearing
Finally the State appears to argue in passing that the dis-
trict court erred in ordering an evidentiary hearing because
“there were no factual disputes which warranted a hearing.”
State Br. at 39. Because the State has not developed this
argument, we need not consider it. See, e.g., Palmquist v.
Selvik, 111 F.3d 1332, 1342 (7th Cir. 1997) (“Even an issue
expressly presented for resolution is waived if not de-
veloped.”). Instead, we believe it sufficient to make two brief
points.
First, a habeas petitioner is entitled to an evidentiary
hearing under Townsend v. Sain, supra, 372 U.S. at 312-
13, 83 S. Ct. at 757, if he has alleged facts that would enti-
11
The State makes the same procedural default argument with
respect to Farod Poole, an additional witness that Hampton did
not name to Rodgon but, Hampton alleges, was readily dis-
coverable had Rodgon simply made an effort to locate additional
eyewitnesses. An affidavit from Poole was submitted in support
of Hampton’s supplemental habeas petition. R.27 Ex. E. The
district court ultimately did not consider Poole’s affidavit, how-
ever, finding that Hampton’s failure to identify him as a potential
witness and to tender an affidavit from him in support of his
petition for postconviction relief in state court was due to a lack
of diligence on Hampton’s part. 2001 WL 1518533, at *14.
44 No. 01-4186
tle him to relief and the state courts, for reasons not attrib-
utable to him, denied him a full and fair hearing to explore
those facts. See Matheny, 253 F.3d at 1039; Porter v.
Gramley, 112 F.3d 1308, 1317 (7th Cir. 1997), cert. denied,
522 U.S. 1093, 118 S. Ct. 886 (1998).12 That is the case here.
Hampton’s habeas petition, together with the affidavits
before the district court at the time it decided to convene
a hearing, made out a prima facie case of ineffectiveness.
Hampton had preliminarily established that there were
eyewitnesses to the attacks who could have exculpated
him, that these witnesses had either been identified to
Hampton’s trial counsel Rodgon by Hampton himself or
were readily discoverable, but that Rodgon had not con-
tacted these witnesses in order to determine whether they
might have aided Hampton’s defense. The state postconvic-
tion court was presented with those same basic averments
but summarily disposed of Hampton’s petition without an
evidentiary hearing; and the Appellate Court affirmed that
disposition.
Second, there were points that the district court could
not reasonably resolve without conducting a hearing. For
example, although the Illinois Appellate Court had ascribed
Rodgon’s failure to investigate and present exculpatory
witnesses to a legitimate concern that such witnesses might
have presented a problem of guilt by association for
Hampton (App. Ct. Order at 7), there in fact was no record
as to Rodgon’s efforts and thinking as to such witnesses.
12
The State suggests that section 2254(e)(2) displaces the pre-
AEDPA Townsend analysis. However, our opinion in Matheny
indicates that if section 2254(e)(2) by its terms does not apply (i.e.,
if the failure to develop the factual basis for the habeas claim in
state court cannot be attributed to something that the petitioner
did or failed to do), then the federal habeas court should consult
pre-AEDPA standards to determine whether an evidentiary hear-
ing on the petitioner’s claim is warranted. 253 F.3d at 1039.
No. 01-4186 45
The only available evidence as to Rodgon’s thinking came
from the postconviction hearing regarding Hampton’s own
failure to testify. See supra at 13-14 & n.4. Because the
postconviction court had summarily dismissed Hampton’s
ineffectiveness claim, the state court record was never
developed as to what Rodgon knew about exculpatory oc-
currence witnesses, what steps he may have taken to iden-
tify and speak with such witnesses, or his reasons (if any)
for neither investigating nor presenting such witnesses.
Indeed, as the evidentiary hearing in the district court re-
vealed, there were disputes between Hampton and Rodgon
as to whether or not Hampton had identified potential wit-
nesses for Rodgon, disputes that could only be resolved after
the court heard their testimony and assessed their credibil-
ity. See Bruce v. United States, supra, 256 F.3d at 598-99(district court abused its discretion in refusing to conduct
an evidentiary hearing on failure to investigate claim made
under 28 U.S.C. § 2255, where the affidavits of trial coun-
sel, defendant, and prospective alibi witnesses presented
questions of fact as to whether counsel adequately assessed
the potential testimony of these witnesses). Moreover, the
district court could not assess what impact the exculpatory
eyewitnesses likely would have had upon Hampton’s trial
without hearing their testimony. Id. at 600. We observed in
Matheny that “[a]n adequate record is imperative to
properly evaluate ineffective assistance claims,” 253 F.3d at1040 (citing United States v. Draves, 103 F.3d 1328, 1335
(7th Cir.), cert. denied, 521 U.S. 1127, 117 S. Ct. 2528(1997)), and in this case an evidentiary hearing was
necessary in order to supply such a record. See also United
States ex rel. Cosey v. Wolff, 682 F.2d 691, 693-94 (7th Cir.
1982) (per curiam).
B. Merits
“The Antiterrorism and Effective Death Penalty Act of
1996 modified a federal habeas court’s role in reviewing
46 No. 01-4186
state prisoner applications in order to prevent federal ha-
beas ‘retrials’ and to ensure that state-court convictions are
given effect to the extent possible under law.” Bell v. Cone,
535 U.S. 685, 693, 122 S. Ct. 1843, 1849 (2002), citing
Williams v. Taylor, 529 U.S. 362, 403-04, 120 S. Ct. 1495,
1518 (2000). In order to obtain habeas relief under the
AEDPA, a petitioner must establish that the proceedings in
state court resulted in a decision (1) “that was contrary to,
or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States,” or (2) “that was based on an unreason-
able determination of the facts in light of the evidence pre-
sented in the State court proceeding.” 28 U.S.C. § 2254(d).
The relevant decision, for purposes of this assessment, is
the decision of the last state court to rule on the merits of
the petitioner’s claim—here, the order of the Illinois Ap-
pellate Court. E.g., Schultz v. Page, 313 F.3d 1010, 1015
(7th Cir. 2002), cert. denied, 123 S. Ct. 2220 (2003).
Hampton appropriately does not contend that the Illinois
Appellate Court’s decision is “contrary to” clearly estab-
lished law; the court cited and applied the familiar rules
governing claims of attorney ineffectiveness as set forth
in the seminal Supreme Court precedent on that subject,
Strickland v. Washington, supra, 466 U.S. 668, 104 S. Ct.
2052. See Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357,
359-60 (2002) (per curiam). Instead, Hampton maintains
that the court unreasonably applied those standards.
“A state-court decision that correctly identifies the govern-
ing legal rule but applies it unreasonably to the facts of
a particular prisoner’s case certainly would qualify as a
decision ‘involv[ing] an unreasonable application of . . .
clearly established Federal law.’ ” Williams, 529 U.S. at 407-
08, 120 S. Ct. at 1520. “Unreasonable” means something
more than “mistaken,” however. Visciotti, 123 S. Ct. at 360,
361; Williams, 529 U.S. at 410, 120 S. Ct. at 1522;
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), cert.
No. 01-4186 47
denied, 123 S. Ct. 1802 (2003). A state court decision is
unreasonable for purposes of section 2254(d)(1) if its ap-
plication of Supreme Court precedent “l[ies] well outside the
boundaries of permissible differences of opinion.” Id., citing
Williams, 529 U.S. at 411, 120 S. Ct. at 1522; see also
Visciotti, 123 S. Ct. at 361 (“[t]he federal habeas scheme
. . . authorizes federal-court intervention only when a state-
court decision is objectively unreasonable”). “Our task is to
uphold those outcomes which comport with recognized con-
ventions of legal reasoning and set aside those which do
not.” Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003).
In relevant part, Hampton’s habeas petition contends that
he was denied his Sixth Amendment right to the effective
assistance of trial counsel. In order to succeed on a claim of
attorney ineffectiveness, a petitioner must demonstrate
both that his counsel’s conduct fell below an objective
standard of reasonableness and that his counsel’s sub-
standard performance prejudiced him. Strickland, 466 U.S.
at 687, 104 S. Ct. at 2064.
The first Strickland showing entails proof that the peti-
tioner’s trial attorney “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defen-
dant by the Sixth Amendment.” Ibid. In assessing the
adequacy of an attorney’s performance, the court’s scrutiny
of course must be “highly deferential,” id. at 689, 104 S. Ct.
at 2065, allowing ample room for differences of professional
opinion among attorneys as to how one might best represent
the defendant, id. at 689-90, 104 S. Ct. at 2065-66.
A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court
48 No. 01-4186
must indulge a strong presumption that counsel’s con-
duct falls within the wide range of reasonable pro-
fessional assistance; that is, the defendant must over-
come the presumption that, under the circumstances,
the challenged action “might be considered sound trial
strategy.” See Michel v. Louisiana, [350 U.S. 91, 101, 76
S. Ct.158, 164 (1955)].
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also
Cone, 535 U.S. at 698, 702, 122 S. Ct. at 1852, 1854.
The second prong of the Strickland inquiry requires a
demonstration of prejudice, that is, proof that “counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” 466 U.S. at 687, 104
S. Ct. at 2064. Prejudice is established when “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” Id. at 694, 104 S. Ct. at 2068. This standard does not
require the petitioner to convince the court that his attor-
ney’s ineffectiveness “more likely than not altered the out-
come in the case.” Id. at 693, 104 S. Ct. at 2068; see also
Visciotti, 123 S. Ct. at 359; Nix v. Whiteside, 475 U.S. 157,
175, 106 S. Ct. 988, 998 (1986); White v. Godinez, 301 F.3d
796, 804 (7th Cir. 2002). Rather, a “reasonable probability”
is one “sufficient to undermine confidence in the outcome.”
Id. at 694, 104 S. Ct. at 2068. Even if the odds that the
defendant would have been acquitted had he received
effective representation appear to be less than fifty percent,
prejudice has been established so long as the chances of ac-
quittal are better than negligible. Miller v. Anderson, 255
F.3d 455, 459 (7th Cir. 2001), judgment modified, 268 F.3d
485 (7th Cir. 2001).
1. Failure to Investigate Exculpatory Eyewitnesses
Hampton’s ineffectiveness claim is based primarily upon
what he contends was Rodgon’s failure to conduct a reason-
No. 01-4186 49
able pretrial investigation by contacting the occurrence
witnesses whose names had been give to him and by failing
make any effort of his own to locate and contact other eye-
witnesses.
The duty to investigate derives from counsel’s basic
function, which is “ ‘to make the adversarial testing
process work in the particular case.’ ” Kimmelman v.
Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574 (1986)
(quoting Strickland, 466 U.S. at 690, 104 S. Ct. 2052).
“Because that testing process generally will not function
properly unless defense counsel has done some in-
vestigation into the prosecution’s case and into various
defense strategies, [the Supreme Court has] noted that
‘counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary.’ ” Id. (quoting Strickland,
466 U.S. at 691, 104 S. Ct. 2052).
Brown v. Sternes, 304 F.3d 677, 691 (7th Cir. 2002). The
Illinois Appellate Court characterized Rodgon’s decision not
to present testimony from eyewitnesses who might have
testified favorably for Hampton as a strategic decision that
“cannot” support a claim of attorney ineffectiveness. App.
Ct. Order at 6. The Supreme Court has, true enough, ob-
served that “strategic choices made after thorough investi-
gation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland, 466 U.S. at 690, 104
S. Ct. at 2066 (emphasis supplied). The Court added,
however, that “strategic choices made after less than com-
plete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limita-
tions on investigation.” Id. at 690-91, 104 S. Ct. at 2066(emphasis supplied). We also pointed out in Crisp v.
Duckworth that “[alt]hough there may be unusual cases
when an attorney can make a rational decision that inves-
tigation is unnecessary, as a general rule an attorney must
50 No. 01-4186
investigate a case in order to provide minimally competent
representation.” 743 F.2d 580, 583 (7th Cir. 1984), cert.
denied, 469 U.S. 1226, 105 S. Ct. 1221 (1985). Thus, among
the questions posed by Hampton’s claim are whether
Rodgon’s omission to contact and present exculpatory eye-
witness was indeed a strategic decision, whether that deci-
sion was based on a complete or incomplete investigation,
and whether, if based on an incomplete investigation,
“reasonable professional judgment” supported a limited
investigation. See Montgomery v. Petersen, 846 F.2d 407,
413 (7th Cir. 1988) (“counsel [has] a duty to contact a poten-
tial witness unless counsel ‘can make a rational decision
that investigation is unnecessary’ ”) (quoting Crisp, 743
F.2d at 583).
The district court made several threshold factual deter-
minations that have a substantial impact on our evaluation
of the ineffectiveness claim insofar as the claim rests on
Rodgon’s failure to investigate exculpatory eyewitnesses.
The court found first that Hampton had given Rodgon the
names of three eyewitnesses (Garner, Gregory Mallory, and
Williams), and in so finding rejected Rodgon’s testimony to
the contrary. 2001 WL 1518533, at *8. It found further that
Rodgon had not only failed to contact not only these wit-
nesses, but had also failed to independently pursue other
available eyewitnesses. Id. Third, except as to Garner, the
court found that Rodgon had no tactical or strategic reason
for not following up with such witnesses. Id. at *8, *16.
Although the State does not expressly challenge these find-
ings as clearly erroneous, see Foster v. Schomig, 223 F.3d
626, 634 n.4 (7th Cir. 2000), cert. denied, 532 U.S. 944, 121
S. Ct. 1407 (2001), it does nibble about their edges, taking
issue with the way in which the court evaluated some of the
evidence underlying its findings.
The State does not appear to quarrel with the district
court’s finding that Hampton gave the names of Garner,
No. 01-4186 51
Gregory, and Williams to Rodgon. In its recitation of the
evidence presented to Judge Kennelly, the State points out
that Rodgon denied having been given these names by
Hampton, insisting that he would have investigated had
he been given the names of such witnesses. State Br. at 25.
Hampton, on the other hand, testified that he did give
Rodgon this information. The choice of whom to believe fell
to Judge Kennelly, who heard them both testify. See Foster,
223 F.3d at 634 n.4; see also Sullivan v. Fairman, supra,819 F.2d at 1392-93. Rodgon’s 1987 letter to the ARDC,
which indicated that he and Hampton did discuss potential
(unnamed) witnesses, figured into the judge’s credibility
assessment. See 2001 WL 1518533, at *7. The State sug-
gests that the district court gave the ARDC letter too much
weight, noting that Rodgon’s mere reference to potential
witnesses “does not mean that he failed to investigate any
witnesses.” State Br. at 50. That is true enough. However,
the principal inference that Judge Kennelly drew from the
letter was that Hampton, contrary to Rodgon’s testimony,
had identified potential defense witnesses for Rodgon. 2001
WL 1518533, at *7. Considered along with Hampton’s
testimony, that inference was not unreasonable. Judge
Kennelly’s finding that Hampton did give the names of
Garner, Williams, and Gregory Mallory to Rodgon is amply
supported by the record and is not clearly erroneous.
The State appears to take some issue with the district
court’s next finding—that Rodgon made no attempt to con-
tact the witnesses whose names Hampton had given him or
to identify other potentially exculpatory eyewitnesses on his
own. The record, we should point out, is devoid of any evi-
dence that Rodgon actually did make such an attempt.
Rodgon himself simply denied that Hampton had given him
the names of any witnesses and said that he did not know
who, other than Hampton’s co-defendants, might be favor-
52 No. 01-4186
able occurrence witnesses.13 The district court found it
noteworthy that Rodgon’s trial file lacked any memoranda
or notations indicating that Rodgon (or an investigator) had
spoken with any witnesses. 2001 WL 1518533, at *7. The
State suggests that there may be explanations other than
a failure to interview witnesses for the lack of documenta-
tion in Rodgon’s file. State Br. at 49. Rodgon did testify that
he had made notes that, by the time of the hearing before
Judge Kennelly, were missing from the file. “I had notes. I
know I had notes. I don’t know where they are because the
file got split up, and it has been 20 years almost, 19 years.”
R. 59-1 at 93. But Rodgon did not specify what type of notes
these were, nor was he able to identify any occurrence
witness that he did contact. In the absence of any evidence
that Rodgon had spoken with such witnesses, Judge
Kennelly permissibly concluded that Rodgon made no effort
to locate and interview potentially exculpatory eyewit-
nesses. Again, his finding is amply supported by the record
and is not clearly erroneous.14
13
Garner, Gregory, and Williams each averred that Rodgon had
never contacted him.
14
The State suggests that “Rodgon would [not] have been able to
file numerous pretrial motions requiring extensive research, pre-
pare discovery requests, conduct pretrial hearings and conduct
lengthy and vigorous cross-examinations of all the State witnes-
ses” without having conducted a more extensive pretrial investiga-
tion than reflected in the documentation remaining in the case
file. State Br. at 49. This contention misses the point, however.
The district court never suggested, let alone held, that Rodgon’s
representation of Hampton was deficient in all respects. Consis-
tent with the ineffectiveness claim that Hampton asserted, the
court focused on Rodgon’s failure to look for eyewitnesses who
might have exonerated Hampton. Rodgon’s representation of
Hampton might well have been conscientious and effective in
other respects, and we are obliged to consider Rodgon’s perfor-
(continued...)
No. 01-4186 53
Notably, the State mounts no direct challenge to the dis-
trict court’s finding that Rodgon’s failure to pursue excul-
patory eyewitnesses was not a strategic decision.15 The
district court observed that although the Illinois Appellate
Court had labeled it as such, this finding “ ‘rests on thin
air’ ” and consequently was entitled to no deference. 2001
WL 1518533, at *15 (quoting Mendiola v. Schomig, 224 F.3d
589, 592 (7th Cir. 2000), cert. denied, 533 U.S. 949, 121
S. Ct. 2591 (2001)). “Neither the state trial court nor the
Appellate Court had any basis to determine why Rodgon
had not interviewed Hampton’s witnesses (either the occur-
rence witnesses or the ‘character’ witnesses); the finding
that it was a strategic move was entirely speculative.” Id.
14(...continued)
mance as a whole. See Miller v. Anderson, supra, 255 F.3d at 458-
59. But the possibility that Rodgon was competent in other
aspects of his lawyering by no means rules out the possibility that
his failure to investigate potential exculpatory defense witnesses
amounted to constitutional ineffectiveness. Cf. Bryant v. Scott, 28
F.3d 1411, 1418-19 (5th Cir. 1994).
15
The State does suggest that in making this determination, the
district court “closed its eyes” to the ramifications of one document
found in Rodgon’s trial folder—a copy of Ronald Mallory’s pretrial
statement to prosecutors. State Br. at 49. Among other things,
that statement asserts that Ronald Mallory did not see anyone
except his brother Gregory at the concert, that he did not see
Garner there at all, and that he never left the balcony of the
Amphitheatre. R.58 Petitioner’s Ex. 4 at 4-5. In these particulars,
Ronald Mallory’s statement is inconsistent with the accounts giv-
en by Williams, Garner, Gregory Mallory, and Hampton. (Mallory
admitted at trial that he had lied in his pretrial statement. R. 48-
3 at 1158, 1175.) But those inconsistencies in and of themselves
hardly would have justified a decision not to speak with the wit-
nesses whose names Hampton gave to Rodgon or to look for addi-
tional eyewitnesses. See, e.g., Bryant v. Scott, supra n.14, 28 F.3d
at 1418.
54 No. 01-4186
Our own review of the record confirms the district court’s
assessment: there is no evidence to support the notion that
Rodgon made a strategic decision not to look for exculpatory
eyewitnesses. As the district court put it, Rodgon’s omission
to pursue such witnesses was one that occurred by default
rather than design. Id. at *16.
In any case, an attorney’s decisions are not immune from
examination simply because they are deemed tactical.
Miller, 255 F.3d at 458; Crisp, 743 F.2d at 584. Strickland
itself makes clear that “strategic choices made after less
than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation.” 466 U.S. at 690-91, 104 S. Ct.
at 2066 (emphasis ours). Rodgon’s decision not to call
exculpatory eyewitnesses in Hampton’s defense—if it was
a decision at all—was necessarily one made after an in-
complete investigation, for Rodgon never spoke with such
witnesses to find out what they had to say. Only if it was
objectively reasonable for Rodgon to self-limit his investiga-
tion in this way may his “decision” not to present exculpa-
tory eyewitnesses itself be considered reasonable. Ibid.; see
also Montgomery, 846 F.2d at 413; Crisp, 743 F.2d at 584.
As we conclude below, given the circumstances confronting
Rodgon, it was not reasonable for Rodgon to believe that
it was unnecessary to identify and interview potentially
exculpatory eyewitnesses to the events underlying the
charges against Hampton.
Eyewitness testimony was the linchpin of the State’s case
against Hampton. There was no physical evidence tying
Hampton to the attack upon the three Latino concertgoers.
The only evidence implicating Hampton in the attack—
beyond Hampton’s conceded presence at the concert—came
from the three prosecution witnesses (victims Denise M.
and Martha N., and William Heinrichs, the security guard)
who identified Hampton as one of the attackers, and (to a
lesser extent) from Keith Powell, who identified Hampton
No. 01-4186 55
as among the group of individuals marching toward the
stage of the auditorium but had not seen Hampton attack
anyone. None of the three individuals who identified
Hampton as an assailant knew Hampton, and none of those
three witnesses had more than a momentary glimpse of the
assailant whom they identified as Hampton. They got that
look under conditions that were anything but ideal: the
attack was chaotic and perpetrated by a large group of
people, and the house lights in the Amphitheatre had been
dimmed for the concert. Moreover, by their own account,
none of the witnesses had, prior to seeing a line-up, pro-
vided a physical description of the assailant they identified
as Hampton to the authorities.
Under these circumstances, the first and most obvious
line of attack on the prosecution’s case was to emphasize
the vulnerabilities in the identification testimony; and this
Rodgon did with vigor. Through his cross-examination of
the State’s witnesses, Rodgon competently highlighted each
of the circumstances that might have given the jury reason
to doubt the ability of the State’s witnesses to identify
Hampton beyond a reasonable doubt as one of the assail-
ants.
But whatever the weaknesses in the State’s case that
Rodgon succeeded in exposing in this fashion, his defense of
Hampton did not elicit any testimony that Hampton
was not among the group of individuals who attacked the
three victims. The omission of such exculpatory evidence
cannot be discounted. None of the witnesses who identified
Hampton as an assailant was proven to be wholly incredi-
ble, and none of the weaknesses and inconsistencies in their
identifications was fatal to the State’s case. Each of them
testified that it was Hampton she or he had seen, notwith-
standing the difficult conditions under which they had seen
him. Opposing testimony from other eyewitnesses to the
attacks, positing that Hampton was not a participant,
would have given the jury a qualitatively different and more
56 No. 01-4186
powerful reason to believe that the State’s witnesses were
mistaken in their identifications of Hampton. See Washing-
ton v. Smith, supra, 219 F.3d at 634 (additional alibi
witnesses that attorney failed to contact “would have added
a great deal of substance and credibility to [petitioner’s]
alibi”); Wright v. Gramley, supra, 125 F.3d at 1042 (where
state’s case against petitioner relied almost exclusively on
testimony of two eyewitnesses who saw assailant only
briefly, occurrence witnesses who gave physical description
of assailant “radically different” from petitioner’s appear-
ance “would have transformed a relatively weak defense
into a far stronger one”); Crisp, 743 F.3d at 585 (“[h]aving
independent witnesses corroborate a defendant’s story may
be essential”); United States ex rel. Cosey v. Wolff, 727 F.2d
656, 658 n.3 (7th Cir. 1984) (witnesses whose names
petitioner had given to his counsel “would not only have
corroborated [petitioner’s] story and further impeached the
victim’s version, but . . . if the witnesses were believed, their
testimony alone would have entirely exculpated [peti-
tioner]”), overruled on other grounds, United States v.
Payne, 741 F.2d 887, 891 n.4 (7th Cir. 1984) (per curiam).
The Illinois Appellate Court’s assertion that such testimony
would have been “redundant” is plainly wrong; testimony by
one eyewitness to a crime that the perpetrator was not the
person named by another eyewitness is the antithesis of
redundancy. See Washington, 219 F.3d at 634; Montgomery,
846 F.2d at 415; Crisp, 743 F.2d at 585; Cosey, 727 F.2d at658 n.3. For that very reason, the Fifth Circuit has recog-
nized that “[t]he failure to interview eyewitnesses to a crime
may strongly support a claim of ineffective assistance of
counsel.” Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994)
(citing Gray v. Lucas, 677 F.2d 1086, 1093 n.5 (5th Cir.
1982), cert. denied, 461 U.S. 910, 103 S. Ct. 1886 (1983)).
As the evidence presented to Judge Kennelly makes
clear, there were such exculpatory eyewitnesses available
No. 01-4186 57
to the defense. Hampton provided Rodgon with the names
and means of contacting three of these witnesses—Garner,
Gregory Mallory, and Williams. Each of those witnesses
knew Hampton, had attended the concert, had witnessed
the attacks, and was prepared to testify that Hampton had
not participated in those attacks. Attorneys representing
Hampton’s co-defendants had located other eyewitnesses to
the attacks who resided at the public housing project where
Hampton lived and thus might have known or at least
recognized Hampton. As the district court pointed out,
Rodgon would have been able to identify those witnesses
simply by consulting with his colleagues and/or investigat-
ing the people identified on their witness lists. At least one
of those individuals, Gregory Hubbard, would have testified
that Hampton did not participate in the attacks.
Like the district court, we shall assume that Rodgon had
a valid reason not to contact Garner, who (unlike the other
prospective witnesses) had been charged with, and had
pleaded guilty to, participating in the attacks. Rodgon was
aware of Garner’s guilty plea, and he was also aware that
the proffer of evidence that the State recited each time one
of Hampton’s co-defendants pleaded guilty expressly im-
plicated Hampton in the attacks. Garner was not asked
to affirm the truth of the government’s proffer (neither
did he contest its accuracy). Nonetheless, Garner’s guilty
plea in the face of a proffer that expressly implicated both
Hampton as well as himself obviously diminished his utility
as a defense witness to some degree. But see Bryant, 28
F.3d at 1419 (without interviewing a co-defendant who had
pleaded guilty, petitioner’s trial attorney “was ill equipped
to assess his credibility or persuasiveness as a witness, de-
spite the objective factors tending to impugn [his] credibil-
ity”); cf. Cosey, 727 F.2d at 658 n.3 (although three of
potential witnesses had reason to be biased in petitioner’s
favor, “that alone is insufficient cause to automatically re-
ject them”).
58 No. 01-4186
But Rodgon had no reason not to contact and interview
the other eyewitnesses Hampton has identified. Those wit-
nesses were not implicated in the attacks, nor did they suf-
fer from any other disability that necessarily would have
impaired their credibility in the eyes of the jury. Although
the State has methodically identified various inconsisten-
cies and imperfections among the recollections of those
witnesses, such flaws—hardly surprising after the passage
of nearly twenty years—cannot excuse Rodgon’s failure to
contact and interview them. Certainly they would bear on
the weight that a jury assessing Hampton’s guilt might
have attached to their testimony, and to that extent they
are relevant to the assessment of prejudice from the failure
to contact them, an assessment we are about to make. But
they are not qualitatively different in kind from the weak-
nesses in the identification testimony of the State’s own
witnesses. A decision that it was unnecessary to look for
and contact such eyewitnesses cannot be described as rea-
sonable. See Washington, 219 F.3d at 632 (trial counsel’s
failure, inter alia, to ascertain what exculpatory evidence
defendant’s witnesses might have was a “flagrant exam-
ple[ ] of ineffectiveness”); Lord v. Wood, 184 F.3d 1083, 1095
(9th Cir. 1999) (counsel cannot assess credibility and de-
meanor of prospective witness without “looking him in
the eye and hearing him tell his story”), cert. denied, 528
U.S. 1198, 120 S. Ct. 1262 (2000). Notably, Rodgon himself
offered no strategic reason for the failure; he simply denied
having any leads on such witnesses—an explanation the
district court found incredible. 2001 WL 1518533, at *7-*8.
The Illinois Appellate Court also thought that testimo-
ny from exculpatory eyewitnesses would have posed
a problem of “guilt by association,” and for that reason it
was reasonable for Rodgon not to contact such witnesses.
App. Ct. Order at 7. Testimony from other eyewitnesses, the
court explained, would have “only serve[d] to emphasize the
fact that defendant went to the concert with the perpetra-
No. 01-4186 59
tors, was present during the assault, and left with the
perpetrators.” Id. The State sounds the same theme in its
briefs. “Petitioner’s potential witnesses all would place him
at the scene of the crime,” the State emphasizes. Reply Br.
at 14. “The testimony of Williams, Mallory and Garner
would have reinforce[d] the fact that Petitioner was [at the
concert] and would have taken away from Rodgon’s strategy
to distance Petitioner from the taint of association and vig-
orously pursue a misidentification theory.” State Br. at 54.
The “guilt by association” concern is altogether a red
herring, however, given the context in which the attacks
occurred. There was never any dispute, and the jury well
knew, that Hampton was present at the concert; so were
thousands of other people. Attending a rhythm and blues
concert is neither a crime nor suggestive of participation in
a crime; and the fact that a horrible assault occurred at the
concert does not cast a pall of suspicion upon everyone who
attended. Furthermore, only one of the four favorable eye-
witnesses that Hampton has identified—Garner—was
implicated in the attacks, and we have assumed that
Rodgon had a valid reason not to contact him. The other
three—Williams, Gregory Mallory, and Hubbard—were
simply bystanders to the assaults, and so would not have
fostered the notion that Hampton was linked to the perpe-
trators by testifying on his behalf. Even to the extent that
these witnesses would have testified that they, along with
Hampton, had attended and left the concert in the company
of other individuals who were perpetrators (which is not
surprising given that they all lived in the same neighbor-
hood), they were no different in that respect from Powell,
the State’s own witness, who knew and rode home on the
bus with the individuals he heard bragging about the
attacks.
For these reasons, we sustain the district court’s determi-
nation that Rodgon’s failure to investigate exculpatory eye-
60 No. 01-4186
witnesses was objectively unreasonable. Such witnesses
were readily available to Rodgon, the testimony of those
witnesses, if believed, would alone have given the jury a
reason to acquit Hampton, and Rodgon had no legitimate
strategic reason not to pursue such witnesses.
We further agree with the district court that Hampton
was prejudiced by his attorney’s ineffectiveness. In explain-
ing why it was unreasonable for Rodgon not to look for
exculpatory eyewitnesses, we have already highlighted sev-
eral of the circumstances that establish prejudice, so we will
briefly recite them again here with belaboring them. With
no physical evidence against Hampton, the prosecution’s
case against him depended entirely on witnesses
who testified that they saw him participate in the attacks.
Those witnesses saw the assailant they identified as
Hampton only briefly and under difficult circumstances,
rendering their identifications of Hampton vulnerable to
challenge. And although Rodgon effectively identified these
vulnerabilities, he presented no testimony to affirmatively
counter the prosecution’s witnesses—i.e., from eyewitnesses
who would have testified that Hampton did not participate
in the attacks. See, e.g., Wright, 125 F.3d at 1042-43; Cosey,
727 F.2d at 658 n.3.
Given the central role that eyewitness testimony played
in this case, the vulnerabilities in the testimony of the
State’s eyewitnesses, and the shortcomings in human per-
ception that so frequently render eyewitness testimony less
reliable than other types of evidence, see Wright, 125 F.3d
at 1043 n.4 (collecting cases), we are more than satisfied
that the failure to investigate exculpatory eyewitnesses
likely affected the outcome of Hampton’s trial. The eyewit-
nesses that Hampton has identified, and whose testimony
the district court found credible, would have given the jury
a powerful reason to doubt Hampton’s culpability.
Two separate acquittals lend support to this notion. First,
the jury acquitted Hampton of the attempted rape of
No. 01-4186 61
Martha N. Recall that according to a written report of a
line-up that Martha N. had viewed, she had picked Ezra
Garner rather than Hampton as her assailant. Detective
Ptak had characterized the report as inaccurate in this
respect. Nonetheless, the report stood as evidence that
Martha N., at least initially, had identified someone other
than Hampton as the person who attempted to rape her.
The jury’s decision to acquit Hampton on that charge, but
not others, suggests that the report gave it reason to doubt
the reliability of Martha N.’s identification in a way that
it did not doubt the other witnesses against Hampton.16
Second, Ronald Mallory ultimately was acquitted of all
charges. Recall that Denise M. had identified Mallory as
one of the men who attempted to place his penis in her
mouth. In his defense, Mallory had testified that he did not
participate in the attack, and he called three additional
witnesses who said the same thing (a fourth witness con-
firmed that he was not a gang member). Mallory’s acquittal
demonstrates the importance of exculpatory eyewitness
testimony and suggests that Hampton’s jury might have
been swayed by such testimony. We recognize that the case
against Mallory was not as strong as the case against
Hampton, in the sense that only one person—Denise M.—
identified him as an assailant. But the State’s case against
Hampton was not qualitatively different from the one
against Mallory; and Denise M., who was also one of
Hampton’s accusers, testified on cross-examination that
it was the men who attempted to put their penises in
her mouth (including Mallory) on whose faces she had
concentrated during the attacks. What substantively made
16
Recall that at one point during deliberations, the jury sent a
note to Judge Strayhorn indicating that it was deadlocked on four
of the charges against Hampton. R. 62 at 189. Although the dead-
lock obviously did not persist, it undercuts the notion that the
case against Hampton was overwhelming in all respects.
62 No. 01-4186
Mallory’s case unique, beyond his own (self-serving) testi-
mony that he did not participate in the attacks, was the
exculpatory eyewitness testimony that Mallory presented.
That testimony was virtually identical to the eyewitness
testimony on which Hampton bases his ineffectiveness
claim, and Mallory’s jury evidently found that testimony
sufficiently persuasive to doubt his accuser.17
The State latches onto a number of omissions, potential
biases, and inconsistencies in and among the testimonies
and affidavits of Garner, Gregory, and Williams, and con-
tends that in view of these vulnerabilities, the district court
was wrong to believe that their testimony likely would have
had any real impact on the outcome of Hampton’s trial. It
notes, for example, that Garner, Gregory, and Williams
were all long-time friends of Hampton’s who, like Hampton,
were present at the scene of the crime; and Garner, it re-
minds us, pleaded guilty to participating in the attacks. Cf.
Montgomery, 846 F.2d at 414 (stressing importance of
independent witnesses); Crisp, 743 F.2d at 585 (same). The
State also points to various incongruities among the af-
fidavits that these three witnesses submitted. Hampton
alleged in his affidavit that he snuck into the concert with
Gregory Mallory and then sat in the center of the theater
with Gregory and Garner until they left the concert.
17
The postconviction court suggested (R. 48-7 at C35), as has the
State (State Br. at 53, Reply Br. at 13) that the case against
Hampton was significantly stronger given that the witnesses
against him included William Heinrichs, the security guard who
testified that he saw an assailant he identified as Hampton as-
saulting Denise M. But Heinrichs’ credibility was far from unques-
tioned. Recall that Heinrichs, notwithstanding his employment
with the Cook County Sheriff, did not come forward as a witness
for more than a week after the attacks (after the police contacted
him), and that he identified Hampton the day after he had seen a
television news report featuring a photograph of Hampton.
No. 01-4186 63
However, Gregory’s affidavit did not mention that he and
Hampton had snuck into the theater together, nor did it
specify with whom Gregory sat during the concert. Garner’s
affidavit omitted any mention of Gregory. And Williams’
affidavit averred that Hampton snuck into the theater
with Garner, and like Garner’s affidavit, it omits mention
of Gregory. These omissions and inconsistencies, in the
State’s view, give reason to doubt the veracity and exculpa-
tory value of the eyewitnesses Hampton has identified.
Moreover, the State asserts that Gregory Mallory proved
himself to be a poor witness: as we have previously noted,
Gregory did not recall exactly where he sat during the
concert, did not remember that Hampton was tried along
with Gregory’s brother Ronald and that the case was tried
before three juries, and could not remember certain repre-
sentations he had made in his affidavit; he also answered a
number of the questions posed to him with answers like “I
don’t know” and “Okay.”
A number of these asserted weaknesses are unremark-
able. It is by no means surprising that the witnesses who
would have exonerated Hampton were his friends—they
were the people he was sitting with at the concert, and as
such they were in a superior position to know whether or
not he had joined the group of men who attacked the three
Latinos. Their friendship with Hampton certainly is a
circumstance that a factfinder would consider in weighing
their credibility, but it is not so impeaching that one can
wholly discount the import of their testimony and the effect
that it might have had on Hampton’s jury. As for the
asserted inconsistencies between the affidavits of Hampton
and the other eyewitnesses, these are by and large inconsis-
tencies of omission rather than outright conflicts. Because
the affidavits were prepared many years after the relevant
events took place, gaps and inconsistencies in the memory
of the affiants are to be expected. See, e.g., Brice v. Nkaru,
220 F.3d 233, 240 (4th Cir. 2000); Grebenick v. Chater, 121
64 No. 01-4186
F.3d 1193, 1200 (8th Cir. 1997). The district judge, who in
contrast to the state courts and to this court heard all but
Williams testify, found them to be credible witnesses.
Two of Hampton’s witnesses—Garner and Gregory
Mallory—did suffer from more serious credibility problems,
but the district court by no means overlooked these flaws as
the State suggests. The court agreed with the State that
Rodgon could not be faulted for failing to contact Garner,
who had pleaded guilty and in doing so had not contested
the evidentiary proffer that inculpated Hampton; Garner’s
testimony therefore played no role in the court’s decision to
grant relief to Hampton. Gregory Mallory’s testimony did
factor into the court’s assessment, but the court was candid
about his shortcomings as a witness. Years of drug abuse
may well have taken their toll on Gregory’s faculties, al-
though Mallory denied that his memory was impaired. But
the district court had to look backward and consider what
effect Gregory’s testimony might have had in 1982, when
Hampton and his co-defendants were tried. Gregory was not
yet a heroin user then; moreover, he had not only testified
in his brother Ronald’s successful defense, but he also had
testified at that time that Hampton had not participated in
the attacks. Under those circumstances, Judge Kennelly
had reason to believe that Gregory’s current testimony was
not the product of delusion or fabrication and that Gregory
would have made a credible witness for Hampton in 1982.
For all of these reasons, Hampton was prejudiced by his
attorney’s failure to look for and interview exculpatory oc-
currence witnesses. A diligent attorney would have made an
effort to locate such witnesses and, upon learning what they
had to say, surely would have put them on the witness
stand to testify on Hampton’s behalf. Although we cannot
say with confidence that it is more likely than not that
Hampton would have been acquitted had such witnesses
been presented, his chances of acquittal with the support of
No. 01-4186 65
those witnesses certainly would have been better than neg-
ligible. The State’s case, although more than sufficient to
convict Hampton, was not so overwhelming that the
outcome of the trial was a foregone conclusion.
Although we have concluded that Hampton’s claim of
ineffective assistance of counsel is meritorious, our work
does not end there. Hampton is entitled to relief in habeas
corpus only if the Illinois Appellate Court’s rejection of his
ineffectiveness claim amounts to an objectively unreason-
able application of Strickland. See Visciotti, 123 S. Ct. at
361; Williams, 529 U.S. at 411, 120 S. Ct. at 1522; ante at
46-47. For the reasons that follow—reasons that we have
already touched upon—we believe that the Illinois Appel-
late court unreasonably applied both prongs of the Strick-
land test for ineffectiveness.
The Illinois Appellate Court recognized that Hampton’s
trial counsel was required either to undertake a reasonable
investigation or to make a reasonable decision that an in-
vestigation was unnecessary. App. Ct. Order at 6. As found
by Judge Kennelly, Rodgon made no effort to locate and
speak with potentially favorable occurrence witnesses. 2001
WL 1518533, at *8. Under Strickland, that failure to in-
vestigate can be excused only if the decision not to look
for such witnesses was itself reasonable. 466 U.S. at 690-91,
104 S. Ct. at 2066. Yet, neither of the two explanations that
the state court posited for Rodgon’s failure to pursue ex-
culpatory eyewitnesses—(1) those witnesses would place
Hampton at the scene of the crime and link him to the
perpetrators of the assaults, and (2) their testimony would
be redundant (App. Ct. Order at 7)—is plausible, as we
have pointed out. It was never in dispute that Hampton
attended the concert, and testimony that he did so would
not have incriminated him any more than it would have
incriminated the thousands of other people who attended
but did not participate in the attacks. Nor would such
testimony have linked Hampton to the other perpetrators.
66 No. 01-4186
With the exception of Garner, whom we have assumed
Rodgon was not obligated to contact in view of his guilty
plea, none of the exculpatory witnesses Hampton has
identified was implicated in the offenses. At the same time,
eyewitness testimony to the effect that Hampton did not
participate in the assaults logically cannot be written off
as redundant. Whatever ammunition Rodgon had amassed
against the State’s witnesses, he had no witness pointing
affirmatively to Hampton’s innocence. In short, the record
supplies no sound reason for Rodgon to have concluded
that it was unnecessary to investigate eyewitnesses who
would have exculpated Hampton. The Illinois Appellate
Court’s contrary assessment was therefore unreasonable. It
is wholly inconsistent with the facts of the case. See, e.g.,
Rice v. McCann, 339 F.3d 546, 549 (7th Cir. 2003) (state
court’s application of federal law is reasonable where it is
“ ‘at least minimally consistent with the facts and circum-
stances of the case’ ”) (quoting Sanchez v. Gilmore, 189
F.3d 619, 623 (7th Cir. 1999), cert. denied, 529 U.S. 1089,
120 S. Ct. 1724 (2000)). It also stands in such tension with
the duty to investigate acknowledged in Strickland that it
was not only erroneous, but unreasonable. See Ward v.
Sternes, supra, 334 F.3d at 705.
As for prejudice, the Illinois Appellate Court character-
ized the proof against Hampton as overwhelming, so that
even if Rodgon had looked for, contacted, and presented
exculpatory eyewitnesses on Hampton’s behalf, there is no
reasonable probability that the outcome of the trial would
have been different. Again, we do not doubt that the trial
record as it stands supports Hampton’s conviction. But as
we have emphasized, the case against Hampton rested en-
tirely on the testimony of eyewitnesses who said that he
participated in the assaults, and the identification testi-
mony of these witnesses was by no means invulnerable.
Against that backdrop, one cannot summarily discount the
possibility that the outcome of the trial might have been
different had the jury heard credible testimony from other
No. 01-4186 67
eyewitnesses that Hampton was not one of the assailants.
Recall that under Strickland, Hampton need not convince
the court that such testimony more likely than not would
have resulted in his acquittal; he need only establish that
this is a reasonable probability, a better than negligible
likelihood. 466 U.S. at 693-94, 104 S. Ct. at 2068; Miller v.
Anderson, supra, 255 F.3d at 459. The exculpatory eyewit-
nesses whom Rodgon never pursued have now been located,
examined under oath, and found credible by the district
judge. Obviously, we cannot predict how the jury would
have resolved the credibility contest between the State’s
witnesses and Hampton’s, but nothing in the record permits
one to say that the jury inevitably would have discredited
the exculpatory eyewitnesses. The appellate court’s one-
sentence holding that Hampton could not establish preju-
dice (App. Ct. Order at 5) was not a reasonable application
of Strickland.
The Illinois Appellate Court’s decision turned a blind eye
both to the nature of the State’s case and to the importance
of the eyewitnesses that Rodgon failed to locate and inter-
view. Those witnesses, if believed, would alone have given
the jury a reason to acquit Hampton, see Cosey v. Wolff,
supra, 727 F.2d at 658 n.3, and given the vulnerabilities in
the testimony of the State’s witnesses, would have in-
creased the odds of an acquittal. See Washington v. Smith,
supra, 219 F.3d at 634; Wright v. Gramley, supra, 125 F.3d
at 1042-43. Rodgon’s failure to seek out exculpatory eye-
witnesses who were readily available to him cannot fairly
be described as a reasonable decision. Nor can the possibil-
ity of a different outcome had Rodgon pursued this line
of defense reasonably be quantified as no better than neg-
ligible. See Miller, 255 F.3d at 459. The state court’s
application of Strickland was therefore unreasonable, and
Hampton is entitled to relief.
68 No. 01-4186
2. Failure to Fulfill Promises Made in Opening
Statement
In his opening statement, Rodgon made two representa-
tions that form the basis for Hampton’s second claim of
ineffectiveness. He promised the jury first that “Mr.
Hampton will testify and tell you that he was at the concert.
Mr. Hampton will tell you that he saw what happened but
was not involved with it.” R. 48-2 at 543. He went on to
promise the jury that “[t]he evidence will show that my
client is not a member of any gang nor a part of a gang . . .
.” Id. at 544. Rodgon did not deliver on either prom-
ise—Hampton did not testify, and the jury never heard any
evidence establishing that Hampton lacked a gang affilia-
tion.
It bears noting that the foundation for this claim is the
broken promise as opposed to the decision not to pursue
a particular line of testimony. We may assume, without
deciding, that it was reasonable for Rodgon to advise
Hampton not to testify and not to present testimony from
other witnesses about his lack of gang ties; such decisions
are often motivated by strategic considerations that com-
mand deference from the judiciary. E.g., Taylor v. United
States, 287 F.3d 658, 662 (7th Cir. 2002); Foster v. Schomig,
supra, 223 F.3d at 631. But Rodgon promised the jury that
it would hear from Hampton and that it would also hear
evidence that he had no gang involvement, and he reneged
on his promises without explaining to the jury why he did
so. Turnabouts of this sort may be justified when “unex-
pected developments . . . warrant . . . changes in previously
announced trial strategies.” Ouber v. Guarino, 293 F.3d 19,
29 (1st Cir. 2002) (citing Dutton v. Brown, 812 F.2d 593, 598
(10th Cir.), cert. denied, 484 U.S. 836, 870, 108 S. Ct. 116,
197 (1987)); see also, e.g., Drake v. Clark, 14 F.3d 351, 356
(7th Cir. 1994). However, when the failure to present the
promised testimony cannot be chalked up to unforeseeable
No. 01-4186 69
events, the attorney’s broken promise may be unreasonable,
for “little is more damaging than to fail to produce impor-
tant evidence that had been promised in an opening.”
Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988); see also
Washington v. Smith, supra, 219 F.3d at 634 (failure to
produce witness identified in notice of alibi and mentioned
during voir dire gave rise to “negative inference” against the
defendant). The damage can be particularly acute when it
is the defendant himself whose testimony fails to material-
ize:
When a jury is promised that it will hear the defen-
dant’s story from the defendant’s own lips, and the
defendant then reneges, common sense suggests that
the course of trial may be profoundly altered. A broken
promise of this magnitude taints both the lawyer who
vouchsafed it and the client on whose behalf it was
made.
Ouber, 293 F.3d at 28.
In this case, the Illinois Appellate Court ascribed the
unfulfilled promise that Hampton would testify to a change
in trial strategy. App. Ct. Order at 8. In the postconviction
proceeding, Rodgon had testified that at the time of opening
statements, he believed that Hampton would take the stand
in his own defense. Subsequently, however, he raised with
Hampton the possibility that his testimony might aggravate
the possibility of the jury thinking him guilty by associa-
tion. He therefore communicated this concern to Hampton,
and Hampton made the decision not to testify. The
postconviction judge found Rodgon credible on this point. R.
48-7 at D58-59. In the Appellate Court’s view, this change
of strategy “cannot support an ineffective assistance of
counsel claim.” App. Ct. Order at 8.
The potential disadvantages of Hampton’s testimony were
ones that would have been obvious from the outset of the
case, however, and thus do not justify Rodgon’s decision to
70 No. 01-4186
promise the jury that Hampton would testify and then
renege on that promise. We have already voiced our skep-
ticism of the validity of the “guilt by association” theory;
and the record does not shed any light on the reasons why
Rodgon thought that Hampton otherwise might not hold
up on cross-examination. But we may put these points aside
and assume that Rodgon legitimately concluded that
Hampton’s testimony posed a substantial risk to the defense
for the reasons he cited. Nonetheless, the circumstances
that gave Rodgon pause were entirely foreseeable at the
time he made his opening statement. Hampton himself was
obviously available to Rodgon before the trial started, such
that Rodgon could have assessed his strengths and weak-
nesses as a prospective defense witness. If Hampton was a
weak witness, Rodgon should have ascertained that before
he announced that Hampton would take the stand; nothing
in the record suggests that anything material to Hampton’s
worth as a witness remained a secret until after Rodgon
had made that promise. See Oubler, 293 F.3d at 29. Nor did
the guilt by association issue emerge unexpectedly later in
the trial. It was never a secret that Hampton was present
at the concert, that he attended the concert with friends, or
that he knew other individuals (for example, Garner) who
were implicated in the attacks.
Thus, to the extent that Rodgon had legitimate reasons to
conclude that Hampton should not testify, it was unreason-
able for him to tell the jury that Hampton would take the
stand. Nothing was to be gained from making that promise,
only to renege upon it later without explanation. The jury
was lead to believe that Hampton had a story to tell that
was diametrically opposed to that of his accusers; it was
told, in essence, that there were two versions of what oc-
curred and that it would have the opportunity to evaluate
Hampton’s own credibility in choosing between those ver-
sions. In the end, however, the jury never heard a second
version of what occurred—from Hampton or any other
No. 01-4186 71
eyewitness; it heard only the State’s account of events. And
in that context, Hampton’s unexplained failure to take the
witness stand may well have conveyed to the jury the im-
pression that in fact there was no alternate version of the
events that took place, and that the inculpatory testimony
of the prosecution’s witnesses was essentially correct. See
Harris v. Reed, supra, 894 F.2d at 879 (failure to present
exculpatory testimony as promised “left the jury free to
believe [the prosecution’s witness’s] account of the inci-
dent as the only account”); see also Ouber, 293 F.3d at 34.
Rodgon’s decision to promise Hampton’s testimony and then
to break with that promise was objectively unreasonable.
Although less important, we also cannot ignore the failure
to present testimony that Hampton was not involved with
a gang, an omission that the state appellate court noted
(App. Ct. Order at 8) but did not explicitly address (see id.
at 7-9). Powell’s testimony that the group of men who
perpetrated the attacks had approached the stage of the
theater chanting “Third World Disciple Nation” and making
apparent gang signals with their hands suggested that the
attacks were gang-related. Against that backdrop, evidence
that Hampton was neither a gang member nor involved
with a gang arguably was relevant to an assessment of
Hampton’s guilt or innocence in the sense that it tended to
make his participation in the attacks less likely. Just as a
defendant’s affiliation with a gang may be probative of his
relationship with other participants in a crime and his
connection to the charged offense, see United States v.
Thomas, 86 F.3d 647, 652 (7th Cir.), cert. denied, 519 U.S.
967, 117 S. Ct. 392 (1996), proof that the defendant lacks
any gang affiliation may bear on the likelihood that he
participated in criminal activity with unmistakable gang
overtones. To be sure, evidence of a defendant’s gang af-
filiation or lack thereof is by no means dispositive of his
guilt or innocence. But to the extent it sheds light upon
72 No. 01-4186
the defendant’s relationship with other perpetrators of the
crime, and perhaps on his motive to commit the crime, it is
relevant nonetheless. Rodgon himself plainly recognized as
much when he informed the jury that Hampton was not a
gang member and, more to the point, told jurors that they
would hear evidence to that effect. As the record reveals
and as Judge Kennelly found, testimony along these lines
was readily available to Rodgon; he simply failed to pursue
it. We may assume that it would have been entirely rea-
sonable for Rodgon not to look for and introduce such
evidence in the absence of a promise that such evidence
would be presented. But having created an expectation that
the jury would hear evidence tending to disassociate
Hampton from the group of men who perpetrated the at-
tack, it was unreasonable for Rodgon not to follow through
by eliciting testimony on this point. His failure to do so
could only have undercut the credibility of the defense with
the jury.
The Illinois Appellate Court’s determination that it was
reasonable for Hampton Rodgon to make and then break
these promises as a matter of evolving trial strategy was
unreasonable. Making such promises and then abandoning
them for reasons that were apparent at the time the prom-
ises were made18 cannot be described as legitimate trial
strategy. Promising a particular type of testimony creates
an expectation in the minds of jurors, and when defense
counsel without explanation fails to keep that promise, the
jury may well infer that the testimony would have been
18
The record is silent as to Rodgon’s reasons, if any, for abandon-
ing the promise to present evidence that Hampton was not affil-
iated with a gang. In the absence of any indication that some sub-
sequent development rendered Rodgon unable to present such evi-
dence, we shall assume that Rodgon decided not to present such
testimony for reasons akin to the concerns that led him not to call
Hampton himself to the stand.
No. 01-4186 73
adverse to his client and may also question the attorney’s
credibility. In no sense does it serve the defendant’s in-
terests. Abandoning the promise may be necessary when
things do not pan out as the attorney reasonably expected
or the detriments of the promised evidence become clear
only later. But for the reasons we have discussed, that was
not the case here. Rodgon’s failure to call Hampton as a
witness or to establish his lack of gang ties cannot be
chalked up to a change in trial strategy. The Illinois
Appellate Court’s effort to do so is inconsistent with the
facts of the case, and unreasonable in that regard. See Rice
v. McCann, supra, 339 F.3d at 549.
Although we agree with the district court that Rodgon’s
breach of the promises he made in the opening statement
was not so prejudicial that it would support relief in and of
itself, the breach serves to underscore the more important
failure to investigate exculpatory occurrence witnesses. Al-
though Rodgon exploited what weaknesses there were in
the State’s case, he elicited no affirmative evidence that
Hampton did not participate in the attacks. The jury was
given reason to question how good of a look the State’s
witnesses had gotten of the assailant they identified as
Hampton, but was presented with no evidence that the as-
sailant was not Hampton. What is more, Rodgon promised
the jury that it would hear Hampton testify to his inno-
cence, and then failed to deliver on that promise. He pro-
mised the jury that it would hear evidence that Hampton
was not involved in any gang, and then failed to deliver on
that promise as well. Those broken promises themselves
supplied the jury with reason to believe that there was no
evidence contradicting the State’s case, and thus to doubt
the validity of Hampton’s defense. See Harris, 894 F.2d at
879.
74 No. 01-4186
IV.
For the reasons we have identified, we conclude Hampton
was deprived of the effective assistance of trial counsel, in
violation of the Sixth and Fourteenth Amendments to the
Constitution. The Illinois Appellate Court’s contrary con-
clusion was the result of an unreasonable application of the
principles identified in Strickland v. Washington. After
careful review of the record, we are left with the definite
and firm conviction that the result of Hampton’s trial is not
reliable. We therefore agree with the district judge, who
handled this case with commendable thoroughness, that
Hampton is entitled to a writ of habeas corpus.
AFFIRMED
MANION, Circuit Judge, dissenting. Twenty-one years ago
Patrick Hampton began to serve a sixty-year sentence for
deviate sexual assault, attempted rape and related crimes.
At his trial, the prosecution presented the testimony of two
of the three victims, Martha N. and Denise M., who clearly
identified and implicated Hampton in the brutal crimes. In
addition, the prosecution presented the testimony of a se-
curity guard at the concert, who unequivocally identified
Hampton as the person he saw actively participating in the
sexual assault of Denise M. Despite this evidence, the court
has held that primarily because Hampton’s attorney failed
to interview several of Hampton’s friends who were also at
the concert, and possibly present their testimony, his repre-
sentation of Hampton at trial was constitutionally deficient.
However, even if we assume that Hampton’s attorney could
No. 01-4186 75
have performed better in his service, because of the strong
evidence of Hampton’s guilt it is not reasonably probable
that the outcome of the trial would have been different.
Therefore, because the Illinois Appellate Court reasonably
applied relevant federal law to the facts of this case, I re-
spectfully dissent and would reverse the district court’s
grant of habeas corpus.
In order to succeed on a claim of ineffective assistance of
counsel, a petitioner is required to demonstrate that his
counsel’s conduct fell below an objective standard of rea-
sonableness and that he was prejudiced by that sub-stan-
dard performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). Strickland’s prejudice inquiry looks at whether
“counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Strickland,
466 U.S. at 687. This requires the defendant to show “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” Id. at 694. A reasonable probability, under Strickland,
“is one sufficient to undermine confidence in the outcome of
the trial.” Id. Additionally, under the AEDPA, a federal
habeas court must consider whether the state court’s
decision was an objectively unreasonable application of
Strickland regarding the prejudice prong. Roche v. Davis,
291 F.3d 473, 481 (7th Cir. 2002). Here, Hampton cannot
meet the Strickland requirements for demonstrating preju-
dice and therefore the Illinois state court’s application of
those requirements was not unreasonable.
Although Hampton’s attorney Rodgon failed to investigate
three of Hampton’s friends who may have testified that
Hampton did not participate in the crime, this does not
necessarily demonstrate prejudice. Even if we assume that
all three witnesses would have testified at trial, it is likely
that their testimony would have been conflicting, as demon-
strated by their conflicting affidavits, and could have been
more of a hindrance than a help.
76 No. 01-4186
Additionally, the court relies on the fact that because one
of Hampton’s codefendants, Ronald Mallory, was acquitted,
it demonstrates that further investigation into defense wit-
nesses may have produced a different result for Hampton.
Such reliance is misplaced. Ronald Mallory only had to
contend with the identification of one victim, whereas three
individuals—the two victims and one security guard—
clearly and concisely identified Hampton.
Finally, his attorney’s failure to present Hampton’s own
testimony to the jury or present evidence of his lack of gang
affiliation, after promising to do both in his opening state-
ment, similarly does not rise to the level of prejudice under
Strickland. The court does not hold that the testimony that
Hampton would have delivered in his defense could have
swayed the jury, but instead holds that Rodgon should have
explained why his client did not testify. But any explana-
tion could be complicated and risky, and might have simply
underscored the fact that he did not testify. The court also
does not mention that Rodgon did not need to present evi-
dence as to Hampton’s gang affiliation, despite his promise
in his opening statement, because the State did not present
any evidence with regard to Hampton’s gang affiliation.
Without such evidence, Rodgon did not have anything to
rebut. In fact, without the State’s evidence, it would have
been potentially damaging for Rodgon to broach the issue of
Hampton’s possible gang affiliation.
II
Therefore, because of the questionable prejudice caused
by Rodgon’s alleged errors and the strong evidence of his
guilt, Hampton has failed to demonstrate a reasonable
probability that, but for counsel’s unprofessional errors, the
result of his trial would have been different. These deficien-
cies similarly preclude a finding that the Illinois Appellate
Court’s dismissal of Hampton’s claims of ineffective assis-
No. 01-4186 77
tance of counsel was an objectively unreasonable applica-
tion of Strickland. I would, therefore, reverse and remand
to the district court with instructions to deny the petition
for habeas corpus, and I respectfully dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-14-03