James Westray v. Deanna Brookhart

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐3260
JAMES WESTRAY,
Petitioner‐Appellant,
v.
DEANNA BROOKHART,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:19‐cv‐00728 — Nancy J. Rosenstengel, Chief Judge.
____________________
ARGUED OCTOBER 27, 2021 — DECIDED JUNE 10, 2022
____________________
Before MANION, WOOD, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. James Westray pleaded guilty to
the murder of Elizabeth Opatt. He received a death sentence
which was later commuted to life imprisonment. In a habeas
petition under 28 U.S.C. § 2254, he now challenges his con‐
finement, including its duration. He argues he received inef‐
fective assistance of counsel during sentencing and on
remand when he moved to withdraw his guilty plea. Accord‐
ing to Westray that claim also requires an evidentiary hearing.
2 No. 20‐3260
For the reasons below, we affirm the district court’s denial of
these claims.
I. Background
A. The Underlying Crime
Elizabeth Opatt worked at Hurley’s Show Bar in William‐
son County, Illinois. One morning in August 1998, she was
opening the bar by herself when two men, James Westray and
Keith Cook, walked in. Westray ordered a drink.
Unknown to Opatt, the men were armed with concealed
sawed‐off shotguns and planning to rob the bar. When Opatt
turned her back, Westray leapt over the counter and forced
her to the ground with his gun. Cook locked the front door
and guarded Opatt, who by that point was “laying facedown,
basically spread‐eagled.” This left Westray free to break into
the back office. After a minute or two, Westray emerged with
a rifle and two boxes, one of which contained money. Mean‐
while, Opatt remained on the floor in the same position.
According to Cook, Westray then found a broom and, with
its handle, began to choke Opatt. He threatened her and de‐
manded that she give him a set of keys to the building. Even‐
tually Opatt stopped moving, either because she had passed
out or because she was pretending to be unconscious. Westray
found the keys and the two men looked for a way out as they
were “done” robbing the place.
Cook and Westray dispute what happened next. Per Cook,
Westray told him they “were going to have to shoot” Opatt
because she had seen their faces. He suggested they “shoot
her at the same time,” in order to implicate themselves simul‐
taneously. Westray “counted to three” while Opatt laid mo‐
tionless “in the same spot” on the floor. He then shot Opatt in
No. 20‐3260 3
the back of the head. “Almost simultaneously,” but “immedi‐
ately after,” Cook pulled his trigger and fired a second shot.
According to Westray, Cook shot Opatt first, and Westray
shot her second solely to implicate himself in the crime as part
of the “code among criminals.” The two men fled.
Ten days later, Westray and Cook met with an associate
who was cooperating with police. During that meeting, they
planned another armed robbery. Westray said he would
“shoot the lady at the register” and kill a coconspirator to
obtain a greater share of the proceeds. When the police con‐
fronted them after the meeting, Westray fled. He was later dis‐
covered “laying in … some grass behind a building about a
block away.” He was generally “defiant and noncompliant”
throughout the arrest and “refused to show [the] police offic‐
ers his hands.”
Two months later, while awaiting trial, Westray tried to
escape from jail. He managed to climb through the jail’s duct‐
work and make it to the roof, where he was discovered by a
maintenance worker and eventually confronted by jail offi‐
cials. When confronted, Westray jumped off the roof, falling
three stories and injuring himself upon impact. He was then
caught and hospitalized.
B. Guilty Plea and Sentencing
Westray was charged with a series of crimes for the shoot‐
ing of Elizabeth Opatt. He was represented by Attorney Larry
Broeking throughout his plea and sentencing proceedings.
Westray entered an open guilty plea1 to the charges of first‐
1 “[A] plea made by the defendant without the benefit of a plea agree‐
ment entered into with the Government.” United States v. Mansfield, 21
4 No. 20‐3260
degree murder and felony murder. Cook also pleaded guilty
to first‐degree murder, but he did so in a negotiated plea,
which included an agreement to testify against Westray.
At the time Westray was sentenced, the state of Illinois
used a two‐phase process in death penalty cases. 720 ILCS 5/9‐
1 (1998). During the first phase, the jury determined “whether
someone [was] eligible for the death penalty.” People v. Todd,
607 N.E.2d 1189, 1198 (Ill. 1992). This step was “nonweigh‐
ing,” meaning the defendant would be eligible for death if the
jury unanimously found “at least one valid aggravating fac‐
tor.” Id. But if the jury found there were no enumerated ag‐
gravating factors, then the court “sentence[d] the defendant
to a term of imprisonment.” 720 ILCS 5/9‐1(g) (1998).
If the “defendant [was] found eligible for the death pen‐
alty,” the jury proceeded to the second phase. Todd, 607
N.E.2d at 1198. At this phase, the jury weighed the aggravat‐
ing and mitigating factors to “determine whether the death
sentence should in fact be imposed.” Id. The Illinois Supreme
Court “consistently held that the sentencing body [was] free”
during this step “to consider any relevant and reliable evi‐
dence in aggravation and mitigation, including the brutal and
heinous manner in which the defendant murdered his vic‐
tim.” Id. (citation omitted). “If the jury determine[d] unani‐
mously that there [were] no mitigating factors sufficient to
preclude the imposition of the death sentence, the court
[would] sentence the defendant to death.” 720 ILCS 5/9‐1(g)
(1998).
F.4th 946, 951 n.2 (7th Cir. 2021) (alteration in original) (quoting United
States v. Booth, 432 F.3d 542, 543 n.1 (3d Cir. 2005)).
No. 20‐3260 5
Here, the jury found Westray eligible for the death penalty
because he murdered Opatt during a robbery. Id. 5/9‐
1(b)(6)(c) (“A defendant who … has been found guilty of first
degree murder may be sentenced to death if: … (6) the mur‐
dered individual was killed in the course of another felony
if: … (c) the other felony was one of the following: armed rob‐
bery, armed violence, robbery.”) The jury therefore pro‐
ceeded to the aggravation‐and‐mitigation phase.
This second phase spanned three days, during which the
State presented aggravation evidence from nine witnesses.
The witnesses testified primarily to Westray’s extensive crim‐
inal history. For example, the State presented evidence that
when Westray was 18 years old he participated in a crime
spree as part of a group of young men “recruited” to steal. His
involvement included shooting a man and injuring a woman
during an attempted armed robbery, burglarizing three resi‐
dences and a hardware store, and discharging a firearm
toward an occupied Illinois home. Eventually, Westray coop‐
erated with police, assisting them in their investigation of the
group. He later pleaded guilty to attempted robbery, aggra‐
vated battery, and armed violence and was sentenced to six
years in prison.
The State also presented evidence that between 1997 and
1998, Westray committed two armed robberies before the
murder of Opatt, and that he planned to commit a fourth af‐
terward. This evidence included Westray’s statements volun‐
teering to “shoot” and kill multiple people associated with the
robbery. Finally, the State presented evidence that Westray
was noncompliant when confronted by police, showed no re‐
morse for his actions during a subsequent custodial interro‐
gation, and attempted to escape from jail after his arrest.
6 No. 20‐3260
Next, defense attorney Broeking presented mitigation ev‐
idence. He called three witnesses to the stand: Westray,
Westray’s mother, and a friend of Westray’s from high school.
Westray’s mother, Claudine Kalaboke, testified first. Among
other things, she testified that Westray did not know his bio‐
logical father growing up, and that Westray’s stepfather was
“physically” and “mentally” abusive to him. She recounted
one occasion on which Westray’s stepfather hit him so hard
he fell on a recliner and broke the back of the chair while
“beat[ing] him.” At least twice the abuse was so severe that
Children and Family Services had to intervene. Despite these
issues at home, Westray was able to develop a good relation‐
ship with one of his half‐brothers. Kalaboke also testified gen‐
erally about Westray’s marriage, children, and the different
jobs he had held. The State declined to cross‐examine
Kalaboke.
Beth Ann Kern, Westray’s high school friend, testified
next. She said that “it was common knowledge that [Westray]
had an abusive childhood” and an “abusive life at home.”
Kern also explained that she intersected with Westray later in
life when he became involved in the drama ministry at her
church. That ministry, Kern said, was used “to introduce peo‐
ple to the word of God and to bring people to God through
plays and comedy.” When asked whether Westray had an
“aptitude” for the drama ministry, Kern responded: “He was
called to do that by God. That is his—that’s what he’s to be
doing, is to reach people for Christ.” Kern also mentioned
Westray’s departure from the church and his marital strug‐
gles. The State again declined to conduct cross‐examination.
Westray took the stand as the final mitigation witness. He
testified about his abusive childhood, prior criminal activity,
No. 20‐3260 7
and subsequent cooperation with the police. He also dis‐
cussed his family, his attempts to rehabilitate his life, and his
eventual return to crime. Finally, Westray testified about
codefendant Cook’s role in the alleged crimes and his own re‐
morse for his actions. He said he was “ashamed” for what
happened and claimed he could not “even look people in the
face” knowing what he “did to [Opatt’s] family,” as well as
his own. For a third time, the state declined to question the
witness.
The hearing proceeded to closing arguments. The State
emphasized Westray’s criminal history, his attempts to elude
arrest and escape from jail, and his general lack of remorse.
On this last point, the State argued Westray still had “no le‐
gitimate remorse” when he took the stand at trial. Rather, his
attitude toward the crime and his decision to flee from the po‐
lice “show[e]d a lot more about him than [the] act that he put
on at the end” of his testimony “trying to convince” the jury
“he was so sorry about what he had done.”
Broeking made a closing argument on Westray’s behalf.
Among other things, he discussed Westray’s troubled child‐
hood, his criminal history, and the reforms he had made
throughout his life. Broeking also sought to rebut the State’s
claim that Westray’s remorse was merely an act. He told the
jury they were “the ones that decide whether what [they] saw
from [Westray] was some act or what [they] saw from
[Westray] was how [he] feels.” As evidence of Westray’s re‐
morse, Broeking pointed out that Westray pleaded guilty be‐
cause he had “no desire to put” Opatt’s family “through any
of this.” He had accepted responsibility for his actions by ad‐
mitting guilt and taking the stand to testify about Cook.
8 No. 20‐3260
Finally, the State offered its rebuttal argument. The State
focused on Westray’s lack of personal responsibility and re‐
morse. For example, it argued that Westray’s troubled child‐
hood and divorce were simply an “abuse excuse.” Westray,
the State urged, should start taking “responsibility for [his]
own actions and quit trying to blame other people.” The State
doubled down on its argument that Westray’s alleged re‐
morse was nothing more than an act, citing his past involve‐
ment in “[d]rama” and “[a]cting,” and stating that Westray
“does have some talent.” More broadly, though, the State em‐
phasized that Westray had a long criminal history and he
needed to be held accountable for his actions.
After a full day of deliberation, the jury found unani‐
mously that there were “no mitigating factors sufficient to
preclude imposition of a death sentence.” The court therefore
sentenced Westray to death.
C. First Direct Appeal and Remand
Westray appealed directly to the Illinois Supreme Court,
arguing, in part, that he had not been properly advised of his
appeal rights in accordance with Illinois Supreme Court Rule
605(b). The State conceded Westray was not properly admon‐
ished, and the case was remanded to the trial court in Septem‐
ber 2000.
On remand Westray had new legal representation, Brian
Lewis. After the trial court gave the instructed admonish‐
ments, Lewis filed a motion to withdraw Westray’s guilty
plea. As amended, the motion stated:
NOW COMES the Defendant, JAMES
L. WESTRAY, by and through his counsel,
BRIAN D. LEWIS, and pursuant to Ill. Sup.
No. 20‐3260 9
Ct[.] Rule 604(d), hereby respectfully re‐
quests this Court to allow him to withdraw
his plea of guilty to the charge of murder,
made on November 6, 1998, and in support
thereof, hereby states as follows:
1. The Defendant’s plea of guilty was
not knowingly and voluntarily made, be‐
cause the Defendant was acting on a mis‐ap‐
prehension [sic] of the facts and the law.
2. The Defendant, JAMES L.
WESTRAY, was denied the effective assis‐
tance of trial counsel, because trial counsel
failed to conduct a reasonable investigation
into mitigation evidence and circumstances
of the Defendant.
WHEREFORE, Defendant, JAMES L.
WESTRAY, respectfully requests this Court
to allow him [to] withdraw his plea of guilty,
entered in this case, and to set the case for
jury trial.
At a July 2001 hearing on this amended motion, Lewis
called Westray to the stand. Westray testified that when he
entered his guilty plea, he did not understand he was “admit‐
ting to being the person who actually committed the murder.”
According to Westray, he also did not know the State “would
be able to argue that [he] had admitted to being the cause of
death of Miss Opatt” afterward. Based on Broeking’s explana‐
tion of “accomplice theory,” Westray believed he was “plead‐
ing to facts that would show that Keith Cook was the actual
killer.” Additionally, had he been aware of additional
10 No. 20‐3260
evidence, such as the coroner’s report and a statement made
by Cook’s wife implicating Cook, he would not have entered
his plea. Both cross‐examination and redirect examination fo‐
cused on Westray’s knowledge and understanding of the
guilty plea.
Attorney Broeking testified next. Broeking stated he had
reviewed the evidence with Westray and informed him of the
penalties that could accompany a guilty plea. According to
Broeking, “early on” in his representation of Westray, he ex‐
plained that Westray’s claim that he shot Opatt “a fraction of
a second” after Cook could be an admission to felony murder
that would potentially subject him to the death penalty. He
also counseled Westray that “his best chance” of avoiding the
death penalty was to plead guilty, but he did not tell him such
a result was “probabl[e].” Broeking’s legal theory was that
given the “serious aggravating factors,” the “less a jury saw
and heard about the crime, the better off” Westray would be.
Broeking testified that Westray ultimately chose to plead
guilty.
The court denied Westray’s amended motion to withdraw
his guilty plea. Although the court provided no explanation
for its decision, neither party objected or had anything further
to add.
D. Second Direct Appeal, Commutation of Sentence,
and Postconviction Proceedings
Westray appealed to the Illinois Supreme Court for a sec‐
ond time. While his appeal was pending, then‐Governor
George Ryan commuted Westray’s death sentence to a sen‐
tence of natural life in prison. The Illinois Supreme Court ini‐
tially dismissed Westray’s appeal but then transferred the
No. 20‐3260 11
case to the Illinois Appellate Court. Before that court, Westray
argued again that his plea was not knowing or intelligent. But
the state appellate court rejected his arguments and affirmed
the order denying his motion to withdraw his guilty plea.
Westray petitioned for leave to appeal to the Illinois Supreme
Court, which was denied in January 2009.
Four years later, Westray filed an amended postconviction
petition in state court through appointed counsel. Before the
state trial court, Westray argued that Broeking was ineffective
for failing to investigate and present available evidence in
mitigation during sentencing, and that Lewis was ineffective
for failing to raise that claim against Broeking on remand. He
argued further that the commutation of his death sentence did
not render his case moot. The state trial court disagreed and
dismissed the postconviction petition. That court concluded
that the Governor’s commutation rendered moot Westray’s
claim of ineffective assistance of counsel during sentencing.
Westray appealed the dismissal of his postconviction peti‐
tion to the Illinois Appellate Court. The court affirmed the
state trial court on mootness grounds. In doing so it relied on
People v. Lucas, an Illinois Supreme Court case which stated
that the commutation of a death sentence renders moot any
sentencing challenges resulting from errors at the aggrava‐
tion‐and‐mitigation sentencing stage. See 787 N.E.2d 113, 119
(Ill. 2002). About five months later, the Illinois Supreme Court
denied Westray’s petition for leave to appeal.
In 2019, Westray filed a pro se federal habeas petition un‐
der 28 U.S.C. § 2254, asserting the same two ineffective assis‐
tance claims. He then requested an evidentiary hearing. After
determining that an evidentiary hearing was unnecessary, the
district court denied the petition. But the court granted a
12 No. 20‐3260
certificate of appealability on the claim that trial counsel
Broeking was ineffective for failing to investigate and present
mitigating evidence of his abusive childhood. Although the
court was “satisfied that its conclusions [were] correct,” it was
“possible that a reasonable jurist could conclude that the state
trial court’s denial of the ineffective assistance claim … with‐
out stating any reasoning, either should not be entitled to def‐
erential review or amounted to an incorrect or unreasonable
application of Strickland.”
Westray appealed, and this court appointed counsel.2 Our
court then granted appointed counsel’s request to expand the
certificate of appealability to include the following issues:
“(1) whether we should remand the case to the district court
for an evidentiary hearing on Westray’s theories; and
(2) whether the lawyer who filed Westray’s post‐sentencing
motion to withdraw his guilty plea rendered ineffective assis‐
tance by not also requesting resentencing on the basis of plea‐
and‐sentencing counsel’s ineffectiveness.”
II. Ineffective Assistance of Trial Counsel
We first review whether Westray is entitled to habeas relief
for his claim that trial counsel was constitutionally ineffective
by failing to investigate and present additional mitigating ev‐
idence regarding his abusive childhood. We review “a district
court’s denial of a petition for habeas corpus de novo and find‐
ings of fact for clear error.” Felton v. Bartow, 926 F.3d 451, 464
(7th Cir. 2019) (citation omitted).
2 We thank Westray’s court‐appointed counsel J. Benjamin Aguiñaga,
Noel J. Francisco, and Brett J. Wierenga of Jones Day for their excellent
advocacy on his behalf.
No. 20‐3260 13
A. AEDPA Deference
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a federal court owes substantial deference
to a state court’s decision on a state prisoner’s federal claims.
28 U.S.C. § 2254(d)(1), (2). Our court will not set the state
court’s decision aside unless it “was contrary to, or involved
an unreasonable application of, clearly established Federal
law” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court pro‐
ceeding.” Id.; see Hartsfield v. Dorethy, 949 F.3d 307, 312 (7th
Cir. 2020).
A threshold question for us is whether the district court
correctly applied AEDPA’s deferential standard. This bench‐
mark “is deliberately difficult, setting a high bar for relief; the
prisoner must demonstrate that the state court’s ruling was
‘so lacking in justification that there was an error well under‐
stood and comprehended in existing law beyond any possi‐
bility for fairminded disagreement.’” Adorno v. Melvin, 876
F.3d 917, 921 (7th Cir. 2017) (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). It “demands that state‐court decisions be
given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam); see Cullen v. Pinholster, 563 U.S. 170,
181 (2011). And the petitioner bears the burden of proof. Pin‐
holster, 563 U.S. at 181. Importantly, AEDPA deference applies
only to claims that were “adjudicated on the merits in State
court proceedings.” 28 U.S.C. § 2254(d); see Minnick v. Win‐
kleski, 15 F.4th 460, 467 (7th Cir. 2021), cert. denied, No. 21‐1042
(U.S. Mar. 21, 2022) (citation omitted). Otherwise, our review
is de novo. Cone v. Bell, 556 U.S. 449, 472 (2009); Adorno, 876
F.3d at 921.
14 No. 20‐3260
The Supreme Court has instructed that “[w]hen a federal
claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court ad‐
judicated the claim on the merits in the absence of any indica‐
tion or state‐law procedural principles to the contrary.”
Harrington, 562 U.S. at 99. Additionally, when a “state court
rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume” the same. John‐
son v. Williams, 568 U.S. 289, 301 (2013). This is known as the
Harrington presumption, under which a federal court will pre‐
sume a state court adjudicated a claim on its merits in the ab‐
sence of an indication to the contrary, or when the claim has
not expressly been addressed. This presumption “can in some
limited circumstances be rebutted.” Id. For example, “[w]hen
the evidence leads very clearly to the conclusion that a federal
claim was inadvertently overlooked in state court, § 2254(d)
entitles the prisoner to an unencumbered opportunity to
make his case before a federal judge.” Id. at 303.
So, the question is whether a state court adjudicated
Westray’s claim that Broeking provided ineffective assistance
of counsel during sentencing on the merits. On federal habeas
review, the district court applied AEDPA deference after it
concluded the claim was raised in Westray’s amended mo‐
tion. That motion made two claims: (1) Westray’s guilty plea
was neither knowing, nor voluntary; and (2) Westray was de‐
nied the effective assistance of trial counsel. This second
claim, the district court reasoned, referred to Broeking’s per‐
formance at sentencing. Because the state trial court denied
the amended motion without comment, the district court pre‐
sumed, under Harrington, that the claim was adjudicated on
its merits. Westray submits the district court erred because his
No. 20‐3260 15
ineffective assistance claim referred solely to Broeking’s per‐
formance during plea proceedings, not during sentencing.
We agree with the district court’s analysis and characteri‐
zation of the amended motion for several reasons. First, the
text of the amended motion states that Westray’s second claim
challenged the effectiveness of trial counsel during sentenc‐
ing:
2. The Defendant, JAMES L. WESTRAY, was
denied the effective assistance of trial counsel,
because trial counsel failed to conduct a reason‐
able investigation into mitigation evidence and
circumstances of the Defendant.
The phrase “reasonable investigation into mitigation evi‐
dence” regularly refers to the mitigation‐and‐aggravation
stage of a sentencing proceeding. That expression rarely de‐
scribes the pleading stage of a trial. Therefore, based on the
plain text of his amended motion, Westray has raised his in‐
effective assistance of counsel claim before a state court.
Second, Westray’s arguments on federal habeas review
support this understanding. Before our court, Westray argues
he is entitled to habeas relief because, among other things,
trial counsel:
said mitigation would not make a difference; he
passed off his duty to investigate [a potential
witness]; he brought a grand total of one wit‐
ness to sentencing; he refused to obtain readily
available records and to interview witnesses
flagged for him; and in a costly move, he put
[Beth Ann] Kern on the stand even though he
had never interviewed her.
16 No. 20‐3260
In other words, Westray argues before this court that his trial
counsel failed to conduct a reasonable investigation into mit‐
igation evidence for sentencing. This argument matches the
language used in the amended motion. Westray has not pro‐
vided an alternative explanation for the meaning of this text.
Third, courts within our circuit have consistently used the
phrase “mitigation evidence” to refer to sentencing proceed‐
ings, not plea proceedings. A review of 155 criminal and ha‐
beas cases from this circuit dating back to 1996 shows that all
but one of them used the phrase “mitigation evidence” to re‐
fer to sentencing or sentencing proceedings. On the other
hand, in only two unreported orders did a court use “mitiga‐
tion evidence” to refer to the stage of the proceeding adjudi‐
cating guilt or innocence.3 Importantly, both of these cases
had distinguishing circumstances—one used the phrase in
reference to an insanity defense, and the other used it to
describe inculpatory evidence that later overlapped with sen‐
tencing evidence. Even more to the point, of the cases re‐
viewed, every case from the Southern District of Illinois used
“mitigation evidence” exclusively in the sentencing context.
This review is not necessarily exhaustive, but it is representa‐
tive.4 Judges overwhelmingly use and understand the phrase
3The unpublished orders are United States v. Christensen, No. 17‐cr‐
20037, 2019 WL 1569348 (C.D. Ill. Apr. 11, 2019), and Ballard v. Pierce, No.
06 C 711, 2006 WL 1519580 (N.D. Ill. May 30, 2006). For purposes of our
research, the second case is counted twice, once for sentencing and once
for guilt.
4
The review was limited to the phrase “mitigation evidence” in the
criminal and habeas corpus context. It did not account for variations of the
word “mitigation” or its use in the civil context, for example.
No. 20‐3260 17
“mitigation evidence” to refer to sentencing rather than plea
proceedings.
Fourth, the judiciary’s use of “mitigation evidence” aligns
with the ordinary use of that phrase. For example, as a legal
term, “mitigation” is defined as “[t]he portrayal of a crime,
mistake or misjudgment as being less than complete, as by
pointing to other contributory causes or to the person’s own
background of adversity as a factor.” Mitigation, BLACK’S LAW
DICTIONARY (11th ed. 2019);5 see BRYAN A. GARNER, GARNER’S
DICTIONARY OF LEGAL USAGE 584 (3d ed. 2011) (“mitigate”
means “to make less severe or intense”). Outside of law, “mit‐
igation” means “the action of reducing the severity, serious‐
ness, or painfulness of something.” Mitigation, NEW OXFORD
AMERICAN DICTIONARY (3d ed. 2010) (the phrase “in mitiga‐
tion” is used to “make something esp[ecially] a crime, appear
less serious and thus be punished more leniently”); see Miti‐
gate, MERRIAM‐WEBSTER’S COLLEGIATE DICTIONARY (11th ed.
2003) (“to make less severe or painful”). Each definition indi‐
cates that “mitigation evidence” would be used to lessen the
portrayed severity of a crime, not to adjudicate an individ‐
ual’s culpability. That is, in a trial, “mitigation” better de‐
scribes the sentencing stage than the guilt stage. Westray has
failed to rebut this usage or present an explanation of how the
phrase could be used to describe plea proceedings.
Fifth, the Supreme Court’s case law presumes that a claim
was adjudicated on its merits if it was properly raised before
a state court. Johnson, 568 U.S. at 301. So, if a claim is presented
5 Black’s Law Dictionary also defines “mitigation” as “[a] reduction in
how harmful, unpleasant, or seriously bad a situation is; a lessening in
severity or intensity.” Id.18 No. 20‐3260
before a state court and dismissed without explanation, the
dismissal is still entitled to AEDPA deference on federal ha‐
beas review, provided that evidence does not clearly indicate
the claim was overlooked by the state court. Id. at 303. Here,
Westray does not claim the state court overlooked the
amended motion’s second claim, nor does he present any ev‐
idence to rebut the Harrington presumption. Instead, Westray
argues only that the ineffective assistance claim must have re‐
ferred to his guilty plea because that is what the amended mo‐
tion sought to withdraw. For the reasons stated above, we do
not agree with Westray’s cramped interpretation of the
amended motion. It would be perfectly reasonable for counsel
to submit a motion to withdraw a guilty plea that includes an
alternative claim regarding sentencing. The text of the motion,
the common usage of the phrase “mitigation evidence,” and
Westray’s arguments in support of habeas relief confirm this
understanding.
Supreme Court precedent generally instructs federal
courts to afford state courts deference. That is because the
“AEDPA recognizes a foundational principle of our federal
system: State courts are adequate forums for the vindication
of federal rights.” Burt v. Titlow, 571 U.S. 12, 19 (2013); see Min‐
nick, 15 F.4th at 468 (“AEDPA’s strictness is grounded in com‐
ity.”) Federal courts “reviewing state criminal convictions on
collateral review” are “required to afford state courts due re‐
spect by overturning their decisions only when there could be
no reasonable dispute that they were wrong.” Woods v. Don‐
ald, 575 U.S. 312, 316 (2015) (per curiam). The presumption
that state courts know and follow the law is “particularly true
when state courts adjudicate ineffective assistance of counsel
claims.” Minnick, 15 F.4th at 468 (citing Titlow, 571 U.S. at 19).
Considering this precedent and the record before us, the
No. 20‐3260 19
district court correctly concluded that when the state court de‐
nied Westray’s motion to withdraw his guilty plea, the state
court adjudicated Westray’s ineffective assistance of trial
counsel claim on the merits. This ineffective assistance claim
referred to trial counsel’s performance during sentencing. It
is not our role to “second‐guess” the state court’s reasoning
after the fact. Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015)
(citation omitted).
For these reasons, we conclude that the ineffective assis‐
tance of trial counsel claim was presented to the Illinois trial
court in Westray’s amended motion. The state court then de‐
nied the amended motion without comment. It is therefore
presumed that the claim was adjudicated on its merits and
AEDPA deference applies. As a result, the state court’s deci‐
sion is not set aside unless it “was contrary to, or involved an
unreasonable application of, clearly established Federal law”
or “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed‐
ing.” 28 U.S.C. § 2254(d)(1), (2).
B. Commutation
Next, we consider the proper legal framework under
which to consider Westray’s claim of ineffective assistance of
trial counsel. Specifically, we examine how the commutation
of Westray’s sentence from death to life imprisonment affects
how we apply the legal standard.
To prevail on an ineffective assistance of counsel claim, a
petitioner must show both deficient performance and result‐
ing prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). A petitioner needs to demonstrate that: (1) “counsel’s
representation fell below an objective standard of
20 No. 20‐3260
reasonableness,” and (2) “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 687–88, 694. “A
petitioner is entitled to habeas relief only if he satisfies both of
Strickland’s prongs.” Karr v. Sevier, 29 F.4th 873, 880 (7th Cir.
2022) (quoting Thill v. Richardson, 996 F.3d 469, 476 (7th Cir.
2021)). Importantly, “there is no reason for a court deciding
an ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.”
Strickland, 466 U.S. at 697.
In keeping with this precedent, we assess whether
Westray can satisfy Strickland’s prejudice prong. Before that,
though, we must understand how the commutation of his
sentence impacts the applicable legal standard. In a death
penalty case, prejudice occurred if “there is a reasonable prob‐
ability that, but for [the] counsel’s ineffectiveness, the jury
would have made a different judgment about whether [the
petitioner] deserved the death penalty as opposed to a lesser
sentence.” Andrus v. Texas, 140 S. Ct. 1875, 1885–86 (2020) (ci‐
tations omitted).
The question for us then is whether a commutation alters
the prejudice inquiry. The State argues that when a “death
sentence is subsequently commuted to life imprisonment,” a
petitioner “must show not only a reasonable probability that
the jury would not have found death to be the appropriate
sentence, but also a reasonable probability that the judge
would have then sentenced him to a term more favorable than
life imprisonment.” To do so the State relies on pair of cases
from this court: Richardson v. Lemke, 745 F.3d 258 (7th Cir.
2014), and Mertz v. Williams, 771 F.3d 1035 (7th Cir. 2014).
No. 20‐3260 21
Westray, on the other hand, argues that under the prejudice
prong he need show only that “but for counsel’s unprofes‐
sional errors, the result of the proceeding would have been
different.” See Strickland, 466 U.S. at 694. He relies on an earlier
case from this court, Griffin v. Pierce, 622 F.3d 831 (7th Cir.
2010), to argue that despite the commutation, he needs to
show only that but for his counsel’s ineffective assistance, he
would have been sentenced to less than death.
In Griffin, this court considered a petitioner’s claim that
“his counsel was ineffective for failing to investigate and pre‐
sent” several pieces of “mitigation evidence” at sentencing. Id.
at 838. The petitioner was sentenced to death after being con‐
victed for murder, solicitation to commit murder, and con‐
spiracy to commit murder. Id. at 833. But his sentence was
later commuted to life imprisonment. Id. at 837. The court
ruled that the commutation did “not moot the habeas peti‐
tion” because the petitioner still could have sought “a lower
sentence.” Id.How the commutation affects the prejudice analysis was
never squarely presented to the court in Griffin. When evalu‐
ating prejudice, Griffin determined that the Illinois Supreme
Court had unreasonably applied Strickland because “[t]he
question is not whether a particular judge would have im‐
posed a different sentence, but rather whether there was a
‘reasonable probability’ that the sentence would have been
different.” Id. at 845–46. After identifying several errors—in‐
cluding counsel’s failure to investigate and to proffer evi‐
dence, and the Illinois Supreme Court’s failure to properly
evaluate the totality of the mitigation evidence—the court re‐
versed the district court’s denial of the habeas petition. Id. at
844–46.
22 No. 20‐3260
Four years later in Richardson, this court addressed the
question more directly. There, a petitioner appealed, among
other things, the “district court’s denial of his claim that he
received ineffective assistance of counsel during the sentenc‐
ing phase.” Richardson, 745 F.3d at 276. As in Griffin, the peti‐
tioner’s sentence had been commuted to life in prison without
the possibility of parole. Id. This court noted that the commu‐
tation did not necessarily render the petitioner’s claim moot
because the petitioner was still “entitled to relief if adequate
representation would have resulted in a sentence to a term of
years.” Id.
The court affirmed the “denial of [the petitioner’s] claim
because a reasonable jurist could certainly conclude, as did
the Illinois Supreme Court, that the introduction of the evi‐
dence [the petitioner] sought would not have changed the
sentence handed down by the trial court.” Id. at 277 (citing
Strickland, 466 U.S. at 694; Griffin, 622 F.3d at 844). In doing so,
the court noted that “due to the commuting of his sentence,
[the petitioner] would not be entitled to relief unless the trial
court would have handed down a sentence to a term of
years.” Id. at 277 n.9. Under Strickland’s prejudice prong, the
court reasoned, the petitioner would need to show he would
have received less than life imprisonment had his counsel ef‐
fectively assisted him. See id.Later that year in Mertz, this court considered another
Strickland claim from an Illinois prisoner whose sentence had
been commuted to life imprisonment without the possibility
of parole. 771 F.3d at 1037. The court affirmed the district
court’s denial of the habeas claim because the petitioner
“could not show the necessary prejudice” under Strickland. Id.
Relying on the recent decision in Richardson, this court
No. 20‐3260 23
decided that the “district court correctly used a term of years
sentence as the benchmark for Strickland prejudice in Mertz’s
case.” Id. at 1044. Once again, the court applied Strickland’s
prejudice prong in this commutation context to require that a
petitioner show he would have received a sentence of less
than life imprisonment but for the ineffectiveness of his coun‐
sel.
Richardson and Mertz provide the proper framework to ap‐
ply the prejudice analysis following a commutation. These
cases are more recent than Griffin and they directly address
the question at hand. Westray contends the State’s position
fails as a matter of constitutional first principles and that Grif‐
fin is binding precedent that “displace[s]” our more recent
case law. Although Griffin focused on Strickland’s prejudice
prong, it never expressly considered the effect a commutation
might have on the prejudice evaluation. At best, Griffin can be
read to imply that any sentence other than death satisfies the
prejudice prong. Richardson and Mertz, on the other hand, ex‐
pressly considered the effect of a commuted death penalty.
Together, those cases hold that to establish prejudice, the pe‐
titioner must prove there is a reasonable probability that, but
for counsel’s unprofessional errors, the petitioner would have
received less than the commuted sentence.
We reaffirm that rule today. A defendant whose death
sentence is commuted to life imprisonment must show not
only a reasonable probability that the jury would not have
found death to be the appropriate sentence, but also a reason‐
able probability that the judge would have sentenced him to
a term more favorable than life imprisonment.
24 No. 20‐3260
C. Prejudice Prong
AEDPA deference applies, and we have clarified the
proper prejudice inquiry after a commutation. We turn now
to the merits of Westray’s Strickland claim, and first evaluate
whether he was prejudiced by the alleged ineffectiveness of
his trial counsel. Specifically, the question is whether Westray
would have been sentenced to a term of years, rather than life
imprisonment, but for his trial counsel’s allegedly deficient
performance.
As stated above, our decision is subject to AEDPA defer‐
ence. When applying that deference to an ineffective assis‐
tance of counsel claim such as this, “[t]he federal courts as a
whole engage in ‘doubly deferential’ review.” Wilborn v. Jones,
964 F.3d 618, 620 (7th Cir. 2020) (quoting Knowles v. Mirza‐
yance, 556 U.S. 111, 123 (2009)). “Deference is layered upon
deference in these cases because federal courts must give
‘both the state court and the defense attorney the benefit of
the doubt.’” Minnick, 15 F.4th at 468 (quoting Titlow, 571 U.S.
at 15).
Strickland’s prejudice prong requires that a petitioner
show “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. A “reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Id. Courts assess this probability by evaluat‐
ing “the totality of the available mitigation evidence—both
that adduced at trial, and the evidence adduced in the habeas
proceeding—and reweigh[ing] it against the evidence in ag‐
gravation.” Porter v. McCollum, 558 U.S. 30, 41 (2009) (per cu‐
riam) (internal quotation marks omitted) (quoting Williams v.
Taylor, 529 U.S. 362, 397–98 (2000)).
No. 20‐3260 25
This standard “does not require a showing that counsel’s
actions ‘more likely than not altered the outcome,’” but the
difference between the “reasonable probability” standard and
the “more‐probable‐than‐not” standard “is slight and matters
‘only in the rarest case.’” Harrington, 562 U.S. at 111–12 (quot‐
ing Strickland, 466 U.S. at 693, 697). A decision is unreasonable
and warrants a writ of habeas corpus only if it “was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair‐
minded disagreement.” Id. at 103.
Westray believes that with effective assistance of trial
counsel, at least one juror could have been convinced not to
impose the death penalty. Yet as discussed above, that is not
the proper question in a commutation case. Instead, Westray
must demonstrate that, but for Broeking’s allegedly deficient
performance, he would have received a sentence less than life
imprisonment. See Strickland, 466 U.S. at 694; Mertz, 771 F.3d
at 1044–45.
Westray fails to prove prejudice for several reasons. To
start, Westray’s codefendant Cook received a sentence of life
in prison, despite entering into a negotiated plea with a sig‐
nificantly less egregious criminal history. This is a strong in‐
dication that a jury would have sentenced Westray to life in
prison as well, regardless of Broeking’s performance during
the sentencing phase. Given Westray’s extensive criminal his‐
tory, his equal if not greater involvement in Opatt’s murder,
and his less favorable plea, it is difficult to conceive how
Westray would have received a lighter sentence than Cook.
While Cook’s life sentence is not dispositive, it is strong evi‐
dence against a finding of prejudice on Westray’s claim. It is
thus highly unlikely, even with additional mitigating
26 No. 20‐3260
evidence, that Westray would have been sentenced to a term
of years.
Further, the quantity and nature of the aggravation evi‐
dence was overwhelming. The State presented nine witnesses
during the aggravation‐and‐mitigation phase, most of whom
focused on Westray’s extensive criminal history. They testi‐
fied to Westray committing multiple burglaries in his youth,
as well as an attempted armed robbery that resulted in the
shooting of a man and the injury of a woman. This evidence
included that Westray committed two armed robberies in the
two‐year period before the murder of Opatt, and that Westray
was planning to commit a fourth robbery afterward, for
which he stated he would be willing to use lethal force. Evi‐
dence was also presented that Westray failed to comply when
confronted by police, he attempted to escape from jail after his
arrest, and he generally showed no remorse. Given the extent
and nature of this aggravation evidence, it is very unlikely
that a jury would have sentenced Westray to a term of years,
even if it had heard the mitigation evidence from which
Westray now seeks to benefit.
Finally, the mitigation evidence Westray says the jury
should have heard was redundant. Westray contends his trial
counsel should have obtained school, medical, and legal rec‐
ords detailing his stepfather’s abuse. He further argues that
trial counsel should have interviewed more family and
friends, and better prepared Kern (Westray’s high school
friend) before putting her on the stand. Some of these alleged
facts—such as trial counsel’s lack of effort to investigate miti‐
gation evidence, and his willingness to put a witness on the
stand despite only being “barely acquainted” with her—are
troubling. But our review at this point is confined to
No. 20‐3260 27
Strickland’s prejudice prong. Strickland, 466 U.S. at 697.
Westray’s trial counsel placed three witnesses on the stand, all
of whom testified about the abuse Westray suffered as a child.
There is no indication that the jury did not credit this evi‐
dence. Indeed, the State did not even cross‐examine these wit‐
nesses. Reports from school counselors, family friends, and
legal documents corroborating the abuse of Westray may
have bolstered his mitigation argument but would not have
materially strengthened it. Instead, such evidence risked in‐
troducing inconsistencies, which could have undermined his
witnesses’ credibility.
As to Kern’s testimony, it is not apparent how better prep‐
aration would have changed Westray’s sentence. Among
other things, Kern testified about Westray’s abusive child‐
hood and the reforms he made by becoming more involved in
the drama ministry at their church. When asked if Westray
had an “aptitude” for the drama ministry, she responded that
he “was called to do that by God. That is his—that’s what he’s
to be doing, is to reach people for Christ.” The State asserted
in its closing argument that Westray’s signs of remorse were
nothing more than an act. While preparation may have given
the State less quotable lines, Kern’s testimony was still favor‐
able. Kern provided the jury with evidence of how Westray
had reformed his life through his faith. It is unlikely that the
State’s argument would have materially changed, regardless
of Kern’s testimony. And even if the State’s closing argument
did change, it is unlikely to have resulted in Westray receiving
a sentence of less than life in prison.
Westray has not shown that but for his trial counsel’s al‐
legedly deficient performance, he would have been sentenced
to a term of years. As a result, Westray cannot prove prejudice,
28 No. 20‐3260
and his claim for ineffective assistance of trial counsel fails.
We need not also consider whether his trial counsel’s perfor‐
mance was deficient, Strickland, 466 U.S. at 697, and we affirm
the district court’s denial of this claim.
III. Ineffective Assistance of Counsel on Remand
Next, we consider whether Westray is entitled to habeas
relief for his claim of ineffective assistance on remand.
Westray argues that Lewis, his counsel on remand, did not
raise Broeking’s ineffectiveness in the amended motion to
withdraw guilty plea. Again, we review “a district court’s de‐
nial of a petition for habeas corpus de novo and findings of fact
for clear error.” Felton, 926 F.3d at 464 (citation omitted).
Both parties agree that this second Strickland claim rises
and falls with Westray’s first Strickland claim. The district
court rejected this second claim, stating that counsel “did in
fact raise the issue” in the amended motion to withdraw
guilty plea, which states that Westray “was denied the effec‐
tive assistance of trial counsel, because trial counsel failed to
conduct a reasonable investigation into mitigation evidence
and circumstances of the Defendant.” The court dismissed
this ground for relief because it was factually incorrect and
Westray offered no reasoned explanation for his argument.
We agree with the district court that Lewis raised
Broeking’s alleged ineffectiveness in the amended motion to
withdraw Westray’s guilty plea. As discussed above, the
amended motion’s second claim states that trial counsel
“failed to conduct a reasonable investigation into mitigation
evidence and circumstances” of Westray. Lewis raised the ex‐
act claim Westray now argues he is ineffective for having
failed to raise. His argument is thus factually inaccurate.
No. 20‐3260 29
Further, the claim that Lewis was ineffective on remand
necessarily fails because the underlying claim for ineffective
assistance of trial counsel fails. Simply put, Lewis cannot be
ineffective for failing to raise what would have been an un‐
successful ineffective assistance of counsel claim. We agree
with both advocates in this case—the two Strickland claims
rise and fall together. Because Broeking was not ineffective,
Lewis also was not ineffective. The district court correctly de‐
nied this second ineffective assistance of counsel claim.
IV. Evidentiary Hearing
Finally, we consider the district court’s denial of Westray’s
motion for an evidentiary hearing. We review a “district
court’s denial of a habeas petitioner’s request for an eviden‐
tiary hearing for an abuse of discretion.” Coleman v. Hardy, 628
F.3d 314, 318 (7th Cir. 2010) (citation omitted). The “AEDPA
governs the availability of evidentiary hearings on federal ha‐
beas review, and generally bars them except in narrow excep‐
tions.” Ward v. Jenkins, 613 F.3d 692, 698 (7th Cir. 2010).
Review “under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the
merits.” Pinholster, 563 U.S. at 181. In other words, “no federal
evidentiary hearing is permitted when the state court has al‐
ready addressed the issue; rather, ‘the record under review is
limited to … the record before the state court.’” Stechauner v.
Smith, 852 F.3d 708, 721 (7th Cir. 2017) (alteration in original)
(quoting Pinholster, 563 U.S. at 182). If the AEDPA poses no
bar to an evidentiary hearing, then the petitioner is entitled to
a hearing in federal court “if (1) he has alleged facts which, if
proved, would entitle him to habeas relief and (2) the state
courts, for reasons beyond his control, never considered his
claim in a full and fair hearing.” Ward, 613 F.3d at 698
30 No. 20‐3260
(citations omitted). But “[i]f a claim has been adjudicated on
the merits by a state court, a federal habeas petitioner must
overcome the limitation of § 2254(d)(1) on the record that was
before that state court.” Pinholster, 563 U.S. at 185.
As discussed above, the state court adjudicated Westray’s
ineffective assistance of trial counsel claim on its merits. See
Harrington, 562 U.S. at 99. The AEDPA therefore bars an evi‐
dentiary hearing. See Stechauner, 852 F.3d at 722. The analysis
need go no further. Westray “must overcome the limitation of
§ 2254(d)(1) on the record that was before that state court.”
Pinholster, 563 U.S. at 185. A “straightforward application of
Pinholster precludes an additional evidentiary hearing in this
case,” so we affirm the district’s denial of an evidentiary hear‐
ing. Stechauner, 852 F.3d at 722.
* * *
For these reasons, we AFFIRM the district court’s judgment.