Drew Terrell v. Randy Pfister , 443 F. App'x 188 ( 2011 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 2, 2011
Decided August 9, 2011
Before
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09-2793
DREW TERRELL, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 08 C 2328
RANDY PFISTER,
Respondent-Appellee. Matthew F. Kennelly,
Judge.
ORDER
In this proceeding under 28 U.S.C. § 2254, petitioner Drew Terrell is seeking to persuade
the court that he is not the person who in 1985 brutally murdered a 15-month-old little girl.
Initially, he was convicted after a bench trial of felony murder and aggravated sexual
assault and was sentenced to death. Many years later, former Governor George Ryan
commuted the death sentence and reduced it to life imprisonment without parole. Terrell
tried unsuccessfully to convince the state courts, and then the federal district court, that his
attorney provided constitutionally ineffective assistance by conducting an inadequate
investigation of the crime. Affidavits that Terrell has now collected show, he believes, that
No. 09-2793 Page 2
he falsely confessed to the crime in order to protect his mother, the true culprit. Presented
with this theory, the Illinois courts concluded with confidence that the new information
would not have made any difference to the outcome of the proceeding and that there was
no point in holding an evidentiary hearing to delve further into the matter. The district
court found that the decision of the state court was not unreasonable and denied Terrell’s
§ 2254 petition. Applying the deferential standard of review called for in these cases, we
too conclude that Terrell has not shown enough to earn relief. We therefore affirm the
judgment of the district court.
I
Because the governing law requires us to decide whether counsel’s alleged substandard
performance is enough to undermine our confidence in the outcome of the proceedings in
the state court, we must begin with a review of the crime and the proceedings that led to
Terrell’s conviction. At the time of the offense in August 1985, Terrell was living with
Elizabeth Terrell (his mother), Markeeter Hampton, and Hampton’s 15-month-old
daughter, Laura. People v. Terrell (Terrell I), 547 N.E.2d 145, 148 (Ill. 1989). One morning
Markeeter headed to work and left Laura in the care of Terrell and his mother. Id. Later that
morning Terrell called Markeeter to tell her that Laura had been injured when she pulled
a stereo down on top of herself and that she had been taken to the hospital. Id. Laura died
a few hours later. Id.Police questioned Terrell at the hospital, and he gave them the same story about the
falling stereo that he had given Markeeter. Terrell I, 547 N.E.2d at 148. He explained that
he was alone with Laura when the accident happened because his mother had stepped out
to cash a check at a currency exchange. Id. The police confirmed that Elizabeth had indeed
gone that morning to a nearby currency exchange. According to Terrell, his mother had
returned a few minutes after the accident and brought Laura to the hospital. Terrell I, 547
N.E.2d at 148-49. But the doctors’ examinations of Laura revealed injuries inconsistent with
the accident Terrell described. Id. at 149. Specifically, the doctors found evidence of sexual
assault, including lacerations on Laura’s vagina and anus, significant vaginal tearing, and
serious internal injuries, including a “huge tear” across her liver, collapsed lungs, and
internal hemorrhaging. Id.When the police brought Terrell into the station for questioning, he initially told the
same story he had at the hospital, but he later changed it. In the presence of a court
reporter, Terrell confessed—in detail. He said that after his mother had left for the currency
exchange, Laura had woken up and started crying. He admitted that he hit her—both with
an open hand and a fist—several times on her face, back, and stomach. He put the stereo
No. 09-2793 Page 3
equipment on the floor to create an alibi after he noticed bruises forming. Laura continued
to cry, though, and after changing her diaper, Terrell said, he inserted a Q-tip and then his
finger into her vagina all the way “up to the bone” because he was “looking for a pain
response.” According to Terrell’s statement, his mother arrived home shortly after that, and
he told her that Laura had pulled down the stereo on herself. Terrell later signed the
transcribed statement, which was used against him at trial. Terrell I, 547 N.E.2d at 148-49.
At trial, the state also presented testimony from Laura’s mother, the medical examiner,
and several detectives who had interviewed Terrell. Terrell I, 547 N.E.2d at 148-49. Terrell
was the only witness for the defense, and this time he testified that after his mother left to
cash her check, he “stepped outside” the apartment for approximately 40 minutes. Id. at
149. He said that he didn’t see anyone while he was gone, yet also that he spoke with “quite
a few . . . associates,” though he couldn’t remember any of their names. Id. Terrell initially
testified that he noticed the fallen stereo and the injured child when he returned, but later
during cross-examination, he changed his story and claimed that the accident did not
happen until after he returned and that he heard the stereo fall while he was in a different
room (returning to his story that the injuries had been caused by Laura’s knocking over the
stereo). Id. He acknowledged that he confessed to police and that the signed statement
accurately reflected what he had said to the court reporter at the station. Id. On redirect
Terrell implied that police told him that he could not leave until he gave them a statement,
but he also swore that the statement was not true. During closing arguments Terrell’s
attorney proposed that someone else had entered the apartment while Terrell was out and
attacked Laura.
Terrell was convicted, and at his first sentencing three relatives testified on his behalf.
Terrell I, 547 N.E.2d at 150. All three testified that Terrell’s mother was a bad influence and
made Terrell feel responsible for her protection and welfare. Lottie Banks, Terrell’s cousin,
said, “I may be wrong . . . but I believe he is right here covering up for his mother.” The
Illinois trial court sentenced Terrell to death, but his case was remanded for resentencing.
Terrell I, 547 N.E.2d at 163-64. On resentencing, Terrell was appointed new counsel, who
sought to introduce evidence that his mother had committed the murder. People v. Terrell
(Terrell II), 708 N.E.2d 309, 325-26 (Ill. 1998). To support this theory, Terrell produced the
affidavits from eight relatives that are now at issue in his § 2254 petition, describing the
abusive relationship between Terrell and his mother, her control over him, and
conversations in which both Terrell and his mother said that he was covering up for her
because she believed that Terrell would not be punished as harshly for the crime because
of his age. The trial court did not allow Terrell to present these affidavits, however, and the
Supreme Court of Illinois affirmed this decision on appeal, holding that the evidence was
“too remote and speculative” to be admissible. Terrell II, 708 N.E.2d at 325.
No. 09-2793 Page 4
Terrell filed a postconviction petition in state court. His primary argument was that his
trial attorney was ineffective for failing to investigate and present the theory that Elizabeth
Terrell had committed the murder and that he had falsely confessed to cover up for her.
To support his petition Terrell submitted the same affidavits that he had attempted to
introduce at resentencing. Four of the affiants—Drew Terrell, Sr. (his father), Eloise
Chambers (his cousin), Madeline Terrell (his grandmother), and Banks (the cousin who
testified at his sentencing hearing)—all reported that Terrell told them he was taking the
rap for his mother. Chambers also reported that she overheard Markeeter (Laura’s mother)
telling Terrell during a prison visit that she did not believe that Terrell killed her daughter
and that she knew Terrell’s mother was to blame. Terrell’s maternal uncle also stated that
Elizabeth told him she asked Terrell to cover up for her because the police would go easy
on him because he was young and could handle prison better. Moreover, at least four of
the affiants stated that they heard from others that Elizabeth was very jealous of Markeeter
and wanted her and her daughter out of the apartment. Relying on the affidavits of his
father and Chambers, Terrell argued that his trial attorney was aware of the cover-up in
time to present the defense. And because counsel’s trial strategy had been to show that the
confession was a lie and to create doubt by showing that someone else could have killed
Laura when Terrell left the apartment, Terrell argued that presenting evidence that his
mother was that person and that there was a motive for the false confession was consistent
with this strategy. Thus, Terrell concluded, it was unreasonable for counsel not to follow
up with his relatives to determine if it was possible to present this additional information
at trial.
Commenting that he could not conceive of how a jury could accept a “diametrically
opposed statement by the defendant which contradicts everything that was said at trial,”
the trial court dismissed Terrell’s petition and denied his request for an evidentiary
hearing. The judge continued that “there’s no indication in any way, shape, or form, what
would cause the mother to do such a thing if she were present,” and concluded that there
was no “hope at all of there being a different verdict” if the new evidence were presented
to a trier of fact, because the evidence would be offset by Terrell’s testimony under oath
and his statement to police.
The Illinois Court of Appeals affirmed, focusing on the reasonableness of counsel’s
actions. The appellate court did not cite Strickland, but it referred to Illinois state cases that
did discuss the Strickland standard. Explaining that the Illinois courts require petitioners
seeking postconviction relief to support their claims with “affidavits, records, or other
evidence,” see 725 ILCS 5/122-2, the court focused on whether the affidavits from Terrell’s
family showed that counsel never contacted them and thus was unaware of the possible
defense. None did, the court concluded, because two of the affiants said that they talked
No. 09-2793 Page 5
to counsel about the cover-up and four said only that they were not asked to testify at
Terrell’s trial, not that trial counsel never contacted them. As for the remaining two affiants,
the court noted that Earline Wadlington said that counsel never contacted her but did not
mention anything about a false confession or that Terrell’s mother was involved, and so her
testimony would not have helped to establish a cover up. And although the last affiant,
Lottie Banks, asserted that counsel never spoke to her, that statement was contradicted by
the fact that she testified at both sentencing hearings. Citing Illinois cases holding that
contact with potential witnesses constitutes adequate investigation and affidavits silent as
to this contact will not support a failure-to-investigate claim, the appellate court concluded
that Terrell had not met his burden of proof to show that his attorney’s performance was
deficient. The appellate court, however, did not address the broader question whether
counsel’s investigation was sufficient under the circumstances or whether it was reasonable
for counsel not to pursue a defense based on the alleged cover up. Because Terrell did not
make a substantial showing that his constitutional rights were violated, the appellate court
also determined that he was not entitled to an evidentiary hearing.
After Terrell’s PLA was denied, Terrell filed his § 2254 petition in the district court. He
argued that the Illinois courts erred by denying him a hearing, unreasonably determining
the facts and mischaracterizing the affidavits, and misapplying Strickland. The district court
first determined that it could not review the state court’s decision to dismiss Terrell’s
postconviction petition without a hearing because that raised only a state-law issue. On the
merits, the court concluded that the Illinois Appellate Court’s determination was not an
unreasonable application of Strickland. As the district court saw it, if Terrell was claiming
that his attorney failed to conduct an adequate investigation, the threshold question was
whether counsel had contacted the identified witnesses, and it was not unreasonable for
the appellate court to evaluate Terrell’s claim by asking whether his affidavits supported
that assertion. Although the state court did not cite Strickland, the district court continued,
that was not required so long as the holding did not contradict Supreme Court precedent.
II
We granted Terrell a certificate of appealability and appointed counsel. On appeal
Terrell argues that the state courts misapplied Strickland and that his trial attorney was
ineffective for not adequately investigating and pursuing a defense that Terrell had falsely
confessed to cover up for his mother. Terrell insists that this theory is consistent with
counsel’s trial strategy that someone else abused and murdered Laura. He also contends
that the district court erred in determining that his request for an evidentiary hearing was
a noncognizable, state-law claim because his hearing request in federal court had been
based on federal law. At oral argument, it became clear that there is really no dispute about
No. 09-2793 Page 6
the evidentiary hearing. Both parties recognize that the question whether Terrell was
entitled to a hearing in the district court is one of federal law, and that the federal court has
nothing to say about the state court’s procedures. On this point, our only comment is that
Terrell’s right to a federal hearing is governed by Cullen v. Pinholster, 131 S. Ct. 1388 (2011),
and, because Terrell’s claims were adjudicated on the merits by the state courts, he must
proceed on the basis of the record those courts created.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254,
we may issue a writ of habeas corpus if the state court’s merits decision on Terrell’s claim
was either “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” Id. § 2254(d)(1); see
Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). To constitute an “unreasonable
application” of clearly established federal law, the state court’s decision must correctly
identify the correct governing legal rule for Terrell’s ineffective-assistance claim, and
unreasonably apply it to the facts of his case. Muth v. Frank, 412 F.3d 808, 813-14 (7th Cir.
2005). Put another way, Terrell must show that the Illinois Appellate Court’s decision falls
“well outside the boundaries of permissible differences of opinion.” Raygoza v. Hulick, 474
F.3d 958, 963 (7th Cir. 2007) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).
To prevail on a claim of ineffective assistance, Terrell must establish that (1) his
attorney’s representation “fell below an objective standard of reasonableness” and (2) he
was prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 687. Great
deference is given to counsel in recognition of the fact that there is a wide range of
reasonable defense strategies, and the reasonableness of counsel’s conduct must be
assessed as a whole. Id. at 689; United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009). To
show prejudice, Terrell must establish that there is a reasonable probability that, absent
counsel’s errors, the outcome of the trial would have been different. Adams v. Bertrand, 453
F.3d 428, 435 (7th Cir. 2006). State petitioners like Terrell face an additional burden because
on top of the deference that we give counsel’s strategic litigation choices, AEDPA adds
another layer of deference to the state court’s application of the legal standard. Harrington
v. Richter, 131 S. Ct. 770, 788 (2011); Toliver v. McCaughtry, 539 F.3d 766, 774 (7th Cir. 2008).
Terrell tries to pick apart the appellate court’s decision, arguing that the court never
cited Strickland and thus misapplied its standard. But the appellate court’s failure to cite
Strickland is neither here nor there. See Early v. Packer, 537 U.S. 3, 8 (2002). All that is
required is that neither the reasoning nor the result of the state court’s decision contradicts
Supreme Court precedent. Id. Here, although the appellate court narrowly construed
Terrell’s claim, the court’s assessment of counsel’s performance is consistent with the
standards set forth in Strickland. Attorneys have a duty “to make reasonable investigations
No. 09-2793 Page 7
or to make a reasonable decision that makes a particular investigation unnecessary.”
Strickland, 466 U.S. at 691. But trial counsel is not obligated to chase down every lead or
“engage in a scavenger hunt for potentially exculpatory information” without direction
from a client, and counsel’s decision to avoid pursuing investigations that would be
fruitless cannot be considered unreasonable. United States v. Farr, 297 F.3d 651, 658 (7th Cir.
2002); see Strickland, 466 U.S. at 691; Brown v. Sternes, 304 F.3d 677, 691-92 (7th Cir. 2002).
Even if Terrell’s relatives told his attorney about the possibility that Terrell had falsely
confessed to cover for his mother, it was reasonable for counsel not to pursue this line of
defense. Although Terrell changed his story several times, in each account he consistently
said that his mother had left him alone in the apartment and did not return until after the
incident happened. Moreover, counsel knew that the police had confirmed at least a partial
alibi for his mother, having spoken with the manager of the currency exchange who said
that she had been in two or three times that morning to cash her check.
Terrell also contends that the appellate court evaluated his affidavits too narrowly,
considering them only to see if they showed whether counsel contacted each person
without assessing their exculpatory significance or asking if it was reasonable for counsel
not to pursue the cover-up defense based on this information. But the significance of the
affidavits is questionable, and Terrell’s argument is based on the faulty assumption that the
cover-up defense was plausible and consistent with the strategy counsel used at trial. All
the statements Terrell produced were from family members who clearly disliked his
mother and blamed her for his problems and misconduct. It is unlikely that such testimony
would have been persuasive, see Woods v. Schwartz, 589 F.3d 368, 377 (7th Cir. 2009), even
considering the cumulative impact of multiple relatives telling essentially the same story,
see Raygoza, 474 F.3d at 964. Moreover, on the key points relating to the allegedly false
confession—i.e., the way Terrell’s mother controlled him, any motive she had to harm
Laura or Markeeter, and acknowledgments of the cover-up by Terrell, Elizabeth, and
Markeeter—the weight of the affidavits was diminished by the fact that they were based
on hearsay, or double hearsay, and would likely be inadmissible in the form they presently
had. Even though hearsay theoretically might help counsel to find admissible evidence, the
Illinois courts were entitled to take the position that Terrell had plenty of time to find better
evidence during the postconviction period, and that he had failed to do so. Notably, the
Supreme Court of Illinois characterized Terrell’s affidavits as “too speculative and remote”
to support a contention that his mother was the real perpetrator. Terrell II, 708 N.E.2d at
500. Although it is true that admissibility issues alone do not excuse an attorney from
pursuing potentially exculpatory information, it was not beyond the pale for the Illinois
courts to infer that counsel had permissible strategic reasons not to spend time
investigating this defense.
No. 09-2793 Page 8
Even if we were to accept Terrell’s argument that the Illinois Appellate Court’s
application of Strickland was too narrowly focused on a supposed failure to investigate and
that this was enough to show substandard performance, Terrell would not be entitled to
prevail. He would still have to show that he was prejudiced by counsel’s failure to pursue
this alternate theory. But the Illinois courts squarely rejected any possibility of prejudice,
concluding to the contrary that the outcome of the case would not have been affected at all
if the possibility that Terrell was taking the rap for his mother had been explored. Put in
Strickland’s terms, the state judge made it clear that his confidence in the result was not
shaken in the least by this new line of inquiry. The most damning evidence against Terrell
was his signed confession to police, which described in detail abuse that was consistent
with the medical examiner’s findings of Laura’s injuries. Although Terrell implied that the
statement had been coerced, there was little, if any, evidence to support this theory, and
his own divergent accounts of what happened undermined his credibility.
We conclude, for these reasons, that the district court correctly found that Terrell is not
entitled to relief. The judgment of the district court is AFFIRMED .