Simpson, Robert v. Battaglia, Deirdre

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3044
ROBERT SIMPSON,
Petitioner-Appellant,
v.
DEIRDRE BATTAGLIA, Warden,1
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 3885—Matthew F. Kennelly, Judge.
____________
ARGUED FEBRUARY 10, 2006—DECIDED AUGUST 11, 2006
____________
Before POSNER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Proceeding pro se, Robert Simpson
was convicted by an Illinois jury of first degree murder and
armed robbery and sentenced to death. Simpson’s sentence
was later commuted to natural life imprisonment without
the possibility of parole by former Illinois Governor George
Ryan. After exhausting his appeals and collateral remedies
at the state level, Simpson filed a petition for habeas corpus
under 28 U.S.C. § 2254. The district court denied the
1
Deirdre Battaglia has been substituted for the original respon-
dent, Kenneth R. Briley, pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
2 No. 04-3044
petition on all the grounds Simpson alleged. On appeal
Simpson primarily takes issue with his waiver of counsel
and the performance of standby counsel. We affirm.
I. HISTORY
There is no dispute as to the factual background, with
each side citing to portions of the trial record and to
Simpson’s two appearances before the Illinois Supreme
Court, People v. Simpson, 665 N.E.2d 1228 (Ill. 1996)
(affirming Simpson’s conviction and death sentence on
direct appeal) (“Simpson I”), and People v. Simpson, 792
N.E.2d 265 (Ill. 2001) (upholding denial of collateral relief)
(“Simpson II”). We garnered the facts accordingly.
A. Robbery and Police Investigation
On May 10, 1992, Simpson and Carolyn LaGrone entered
the Fairway Food grocery store in Glenwood, Illinois but
soon left without making a purchase. A few minutes later
they reentered the store. Simpson, carrying a gun concealed
under a piece of newspaper, approached a service desk and
told a store employee he was robbing the store. The em-
ployee responded, “You must be kidding.” Simpson grabbed
the employee by her smock and forced her to the ground.
LaGrone approached the service area and held open a purse
into which Simpson started putting money. Barbara
Lindich, a store customer, walked up behind the woman
and peered over LaGrone’s shoulder. Simpson asked
Lindich if she wanted to help and then shot her in the neck,
a wound from which Lindich later died. Simpson and
LaGrone left the store and got into a car in the parking lot
in which Lurlarn Young was waiting. With Simpson at the
wheel, the three drove off.
Shortly after arriving at the store, Greenwood police
summoned Hayden Baldwin, a crime scene technician.
No. 04-3044 3
Baldwin obtained fingerprint impressions from various
objects and found a spent casing inside the service office.
Baldwin returned to the scene later that evening and
recovered a bullet fragment employees had discovered in a
door frame.
On May 25, the police arrested LaGrone, and she gave a
statement detailing the offense and the roles of Young and
Simpson. Later that day, the police arrested Young, who
was Simpson’s live-in girlfriend, as an accomplice to
murder. At the time of her arrest, Young was driving a
car matching a description of the getaway car.
While in custody, Young gave police two statements which
were reduced to writing. Young also signed a form consent-
ing to the search of the apartment she shared with
Simpson. That evening, the police used Young’s keys to
make a warrantless entry into the apartment. The police
found Simpson at the residence and arrested him. Early the
next morning, Simpson was placed in a lineup and was
identified by employees and customers as the man who they
saw commit the robbery.
The police further questioned Young, and on May 26, she
signed a second consent to search form. The police, accom-
panied by Young, returned to the apartment and searched
a storage locker in the basement where they found a .380
caliber semiautomatic pistol, a .25 caliber semiautomatic
pistol, ammunition, and other evidence linking Simpson
to the crime.
Forensic analysis revealed one of the pistols recovered
from Simpson’s storage locker produced characteristics that
matched the cartridge case and bullet fragment recovered
from the scene. The fingerprints lifted at the store were
LaGrone’s.
4 No. 04-3044
B. Simpson’s Waiver of Counsel
Simpson’s legal proceedings did not get off to a good start
in the Circuit Court of Cook County. On June 17, 1992,
Simpson, LaGrone, and Young were arraigned on charges
of first degree murder, armed robbery, aggravated battery,
and armed violence. Apparently while the court was making
a record of the charges, Simpson attempted to confer with
his co-defendants, leading to the following colloquy:
THE COURT: Move that defendant away from these
young ladies. Now Mr. Simpson, do you
have the funds to hire your own law-
yer?
SIMPSON: We haven’t had a chance to communi-
cate. You think maybe we can get that
opportunity?
THE COURT: I don’t know who you are talking about
communicating with?
SIMPSON: I’m talking about the three of us.
THE COURT: You’re not the spokesman for these
young ladies.
SIMPSON: I’m not saying I’m the spokesman. I
asked you a simple question and you
want to—
THE COURT: I asked you a question.
SIMPSON: I asked you could we have a conference.
. THE COURT: No, you cannot.
SIMPSON: Well, then, fuck what you talking
about. I talk to you like a man and you
want to talk to me like you don’t have
good sense.
THE COURT: I assume, Mr. Simpson, you think you
have nothing to lose, but I can hold you
in contempt of court.
No. 04-3044 5
SIMPSON: It’s not what I think, motherfucka—
THE COURT: I hold you in contempt and I sentence
you to—
SIMPSON: I don’t care. Fuck you.
THE COURT: —six months.
SIMPSON: Sentence me to fifty fucking year. I
don’t care.
THE COURT: Six months Cook County Department of
Corrections.
SIMPSON: Right. Fuck what you talking about. I
talk to you like a man and you—
THE COURT: I tell you what I think, Mr. Simpson—
SIMPSON: You can’t tell me a motherfucking
thing, motherfucker.
THE COURT: Remove Mr. Simpson from the court-
room.
Simpson was removed from the courtroom and taken into
custody.2
Simpson appeared in court soon thereafter three times,
each time represented by a public defender. At these
appearances, Simpson said he was ready for trial and voiced
his desire to proceed pro se. The court informed Simpson
that he would need to formally waive counsel and that the
public defender would be appointed as standby counsel. At
the third appearance, on August 12, Simpson told the court
that he wanted to go to trial as soon as possible even if it
2
At a later hearing, Simpson contritely apologized, explaining
that he “was a little upset about a lot of little things,” i.e., his
incarceration. The judge accepted Simpson’s apology and told him
that he did not take Simpson’s remarks personally.
6 No. 04-3044
meant representing himself. When his appointed counsel,
Frank Rago, said he needed a continuance to prepare for
trial, Simpson petitioned the court to represent himself.
In response, the court said, “From looking at the charges
in this case, it’s a very complex case. I don’t know if the
State is going to be seeking the death penalty in this case,
but they may be and there may be certain matters that
you would not be able to handle if you do represent yourself
in these matters. The law is that you will [be treated] just
as if you were an attorney.”
The court asked Simpson for an explicit waiver of his
right to counsel. Simpson answered, “The problem is that
too many people running up here doing too many different
things and nobody is ever here that’s supposed to be here
each time. I want a jury trial and I’m ready for trial now.”
The court asked again for a waiver, and Simpson stated,
“The last time I think we had talked and you said you were
going to appoint him to act as co-counsel.” The court asked
a third time for a waiver, and Simpson said he wanted to go
to trial, saying, “I’m going to represent myself if that’s how
the Court feels.”
The court read the charges to Simpson and asked him if
he understood, saying “Do you still wish to give up your
right to a lawyer?” Simpson replied, “If that’s what it takes
to go to trial, yes.” The court then read the penalties and
asked Simpson if he understood, to which Simpson gave the
same answer. The court then instructed Simpson that he
had the right to a lawyer and that this right could not be
taken away without his consent or approval. When the
court asked Simpson if he understood, he said, “If I have a
right to an attorney and the Court appoints an attorney,
how come every time I step in here, somebody different
steps up and doesn’t know what’s going on?” The court
explained that Rago had lawyers assisting him, so that
Simpson actually had three lawyers. The court also ex-
No. 04-3044 7
plained that the public defenders needed time to investigate
in order to provide competent representation.
Should Simpson waive his right to an attorney, the
court explained, it would appoint standby counsel whose
role would be that of an observer. The court stated, “The
reason why I do that is if there’s some type of outburst or
some type of thing that prevents me from proceeding to
trial, because you have to be your own lawyer, then what
may happen is if I have to remove you from the courtroom,
then the stand-by counsel would then come in to represent
you . . . . I would let you confer with that standby counsel
if you wished to, but you would be representing yourself.
That person would not be actively engaged at all in your
trial. You would be representing yourself.” Simpson replied,
“Sounds fine.”
The court clarified that if Simpson wanted to be repre-
sented by a lawyer, the lawyer was duty bound to do so
effectively, which would require time to look at the case.
The court then explained what functions a lawyer would
perform and that if Simpson lacked the money, an attorney
would be appointed for him. The court asked, “Do you have
any questions about anything I have said to you?” Simpson
replied, “No.” The court then asked, “Knowing everything
that I have said, do you still wish to give up your right to
have a lawyer represent you in this case?” Simpson replied,
“Yes.”
The court then asked Simpson if he had graduated from
high school and his level of education. Simpson replied,
“I think I’m competent, Your Honor.” The court repeated its
question to ensure Simpson would not “have any problem
researching the law in this area.” Simpson responded that
he was ready for trial. The court asked again, “And you
want to represent yourself?” Simpson responded, “Yes. And
I want a jury.” The following colloquy ensued:
8 No. 04-3044
THE COURT: I feel that you understand your rights
under the law, under the possible pen-
alties involved here. Do you understand
what you’re giving up?
SIMPSON: Yes, sir.
THE COURT: And I believe that’s a free and volun-
tary decision on your part.
SIMPSON: It is.
THE COURT: Anybody force you to do this?
SIMPSON: No.
THE COURT: This is of your own free will?
SIMPSON: Well, not my free will, but didn’t no-
body force me.
Simpson elaborated that he had a problem with one of the
public defenders who appeared on his behalf at a previous
hearing. The court told Simpson that the lawyer could be
removed from the case if Simpson so desired, or that he
could represent himself. Simpson said he would represent
himself. The court appointed Rago to serve as standby
counsel after Rago moved to withdraw from representing
Simpson.
At two subsequent pretrial hearings the court asked
Simpson if he wished to stick with his decision to waive
counsel. The court explained to Simpson that while
Simpson’s waiver of counsel was not set in stone, he would
not be able to use the retraction of waiver as a litigation
strategy or delay tactic. The court said that at some point,
Simpson’s representation would have to be finalized.
Simpson did not equivocate on his waiver.
No. 04-3044 9
C. Simpson’s Trial and Sentencing
At trial, three employees present in the Fairway Food
store identified Simpson as the man who was behind the
service desk holding a gun. A customer in the store that day
also identified Simpson as the man she saw passing in the
lane next to her after she heard a male say, “This is a stick-
up,” and heard a loud “pop.” Two of the employees and the
customer identified one of the guns recovered from
Simpson’s storage locker as the weapon they saw him
holding during the robbery.
Simpson called several witnesses who were present in the
store at the time of the crime. Their versions of events
differed from the prosecution witnesses’ accounts, but did
not contradict them. Simpson called co-defendant Young
to the stand, but she invoked her right against self-incrimi-
nation and did not testify. Against the advice of the trial
judge and at Simpson’s request, the custodial statements of
Young and LaGrone were published to the jury. Simpson
did not testify. At the close of the evidence, the jury re-
turned a verdict finding Simpson guilty of first degree
murder and armed robbery. At the first stage of capital
sentencing, the jury found Simpson to be eligible for the
death penalty. Sentencing proceeded to the second stage,
and Simpson continued to represent himself.
When it came time for Simpson to introduce mitiga-
tion evidence, he sought to call three judges to testify on his
behalf. The court instructed Simpson’s standby counsel to
locate the judges and ask them if they knew of Simpson.
None of the judges were able to remember Simpson. At
Simpson’s request, the trial judge contacted each of the
judges on more than one occasion. Two judges stated their
willingness to come to court but neither could remember
Simpson. Simpson contacted one of the judges himself in
order to refresh the judge’s recollection. Simpson also
requested and received various transcripts from witnesses.
10 No. 04-3044
The trial court repeatedly advised Simpson that he should
present some other mitigation evidence to sway the jury not
to impose death. Simpson declined, explaining that a death
sentence would allow him to “bypass the Illinois Appellate
Court” and go “directly to the Illinois Supreme Court.” The
trial court questioned Simpson’s strategy of relying on post-
trial motions or appeal and pointed out that if one member
of the jury disagreed with the death sentence, it would not
be imposed.
Simpson presented no mitigating evidence. The jury found
no mitigating factors were present to preclude a death
sentence. Rago, Simpson’s standby counsel, did nothing on
his own with regard to performing a mitigation investiga-
tion, nor did he examine the prosecution’s aggravating
evidence.
The court appointed counsel to represent Simpson on his
post-trial motion. Simpson’s counsel obtained Simpson’s
prison medical file which indicated he suffered from
headaches, dizziness, fainting spells, and bad eyesight, and
noted he had survived a gunshot wound to the head from a
prior incident.3 At the post-trial hearing, Simpson’s counsel
3
Specifically, Simpson’s counsel obtained the affidavits of three
“experts” which stated the following:
! Mr. Simpson’s difficulty focusing, rapid speech,
impulsive decision making, and apparent inability to
fully comprehend the mitigation process are possible
indicators that he suffers from Attention Deficit
Disorder or Attention Deficit Disorder with Hyperac-
tivity. This DSM-IV condition is a neurocognitive
deficit that indicates neurological damage.
! I strongly suspect that Mr. Simpson has prefrontal
cortex insufficiency. This leads to hyperactivity,
inability to control rage and anger, and, most trou-
blesome, poor judgment.
! The likelihood of organic brain syndrome is
(continued...)
No. 04-3044 11
argued Simpson was not competent to waive his right to
counsel. The trial court denied Simpson’s motion and
sentenced him to death for murder and 30 years’ imprison-
ment for armed robbery.
Simpson appealed directly to the Illinois Supreme Court
which affirmed both his convictions and death sentence.
Simpson I, 665 N.E.2d 1228. Then Simpson sought collat-
eral relief in state court, the denial of which was affirmed
by the Illinois Supreme Court. Simpson II, 792 N.E.2d 265.
On May 31, 2002, Simpson filed an application and notice
of intent to file a federal habeas corpus in United States
District Court for the Northern District of Illinois. Simpson
then filed a petition for executive clemency on August 19,
2002. On September 26, 2002, Simpson filed a petition for
writ of habeas corpus. Governor Ryan commuted Simpson’s
death sentence to life imprisonment on January 10, 2003.
In light of the commutation, the district court inquired
whether Simpson wished to proceed with his habeas
petition despite the risk that the award of a new trial
reopened the possibility of a death sentence.4 Simpson
3
(...continued)
suggested . . . . There is clear evidence of agitation
and this examiner agrees with others that there is at
least an ADHD, though he favors a Bi-Polar Disor-
der . . . . Simpson was not mentally fit to proceed to
trial or sentencing and is not presently mentally
competent to be sentenced to death because he can’t
assist in his defense.
4
The Illinois Supreme Court has recently held that former
Governor Ryan’s clemency orders would preclude a death sentence
for defendants like Simpson even in the event of a retrial. See
People v. Morris, 848 N.E.2d 1000, 219 Ill.2d 373 (Ill. 2006)
(explaining that the clemency orders “relieve[d] defendant ‘of the
death penalty as a legal consequence of the offenses he had
(continued...)
12 No. 04-3044
elected to continue and filed an amended petition on June
27, 2003. On February 5, 2004, the district court issued an
order denying relief on ten of Simpson’s claims and direct-
ing supplemental briefing on Simpson’s remaining claims,
which were denied on June 28, 2004. Pursuant to the
district court’s certification, Simpson raises the following
issues on appeal:
1. Whether Simpson’s waiver of his right to counsel
was valid;
2. Whether Simpson was entitled to standby counsel
with a duty to investigate potential mitigation
evidence for presentation at sentencing;
3. Whether the trial court was obligated to appoint
a mitigation expert in light of Simpson’s alleged
invalid waiver of counsel and purported ineffective
standby counsel; and
4. Whether evidence of Simpson’s identity was the
fruit of an illegal search because Lurlarn Young’s
consent was allegedly coerced and evidence of the
coercion was suppressed.
II. ANALYSIS
As with all habeas appeals, “we review a district court’s
findings of fact for clear error and its rulings on issues of
law de novo.” Foster v. Schomig, 223 F.3d 626, 634 n.4 (7th
Cir. 2000) (citing Warren v. Richland County Circuit Court,
223 F.3d 454, 456-57 (7th Cir. 2000)); see Barrow v.
Uchtman, 398 F.3d 597, 602 (7th Cir. 2005). The Anti-
terrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”) requires a petitioner to “establish that the state
4
(...continued)
committed’ ”).
No. 04-3044 13
court proceedings in his case resulted in a decision (1) ‘that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,’ or (2) ‘that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’ ”
Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006) (quot-
ing 28 U.S.C. § 2254(d)); see Williams v. Davis, 301 F.3d
625, 631 (7th Cir. 2002). A state court’s determination of a
federal constitutional issue is unreasonable only if it is
objectively unreasonable. Williams v. Taylor, 529 U.S. 362,
409 (2000). In other words, a state court’s application of
federal constitutional law will be upheld if it is “at least
minimally consistent with the facts and circumstances of
the case.” Rice v. McCann, 339 F.3d 546, 549 (7th Cir. 2003)
(quoting Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir.
1999)).
The parties do not dispute the facts; the only issues raised
are questions of law. Simpson does himself no favors by not
referring to the applicable state court decisions. “The
relevant decision for purposes of our assessment is the
decision of the last state court to rule on the merits of the
petitioner’s claim.” Charlton, 439 F.3d at 374 (citing
McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003)).
Some of the issues Simpson raises were last reviewed by the
Illinois Supreme Court in his direct appeal (Simpson I) and
others on collateral review (Simpson II). Simpson merely
argues what the trial court should have done, but that is
not the proper basis of habeas review under the AEDPA.
A. Simpson’s Waiver of Counsel
Simpson argues that he was incompetent to stand trial
and, therefore, incompetent to waive his right to counsel.
And if he was competent, Simpson alternatively main-
tains his waiver of counsel was not made knowingly and
voluntarily. According to Simpson, his inappropriate
14 No. 04-3044
behavior at his arraignment (and a similar blowup after he
had been sentenced) called into question his competence.
Had the trial court conducted a meaningful competence
inquiry, Simpson argues, it would have learned of
Simpson’s medical and mental histories which were consis-
tent with the affidavits later obtained in preparation for his
post-trial motion.
The Supreme Court has held that for a criminal defen-
dant to waive the right to counsel, he must be competent to
waive the right and do so knowingly and voluntarily.
Godinez v. Moran, 509 U.S. 389, 400-01 (1993). “The focus
of a competency inquiry is the defendant’s mental capacity;
the question is whether he has the ability to understand the
proceedings. The purpose of the ‘knowing and voluntary’
inquiry, by contrast, is to determine whether the defendant
actually does understand the significance and consequences
of a particular decision and whether the decision is
uncoerced.” Id. at 401 n.12 (citations omitted) (emphasis in
original). A court is not required to make a competency
determination in every case a defendant seeks to waive
counsel; “[a]s in any criminal case, a competency determina-
tion is necessary only when a court has reason to doubt the
defendant’s competence.” Id. at 401 n.13 (citation omitted).
The state maintains that because Simpson did not argue
that his outbursts were part of his competency claim to
the Illinois Supreme Court, he has procedurally defaulted
this claim. Alternatively, the state argues that Simpson did
not make this argument to the district court, causing him
to forfeit this claim.
To avoid procedural default, “[t]he petitioner must
establish that he fully and fairly presented his claims to the
state appellate courts, thus giving the state courts a
meaningful opportunity to consider the substance of the
claims that he later presents in his federal challenge.” Bintz
v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005) (citing Harris
No. 04-3044 15
v. McAdory, 334 F.3d 665, 668 (7th Cir. 2003)). “Fair
presentment in turn requires the petitioner to assert his
federal claim through one complete round of state-court
review, either on direct appeal of his conviction or in post-
conviction proceedings.” Lewis v. Sternes, 390 F.3d 1019,
1025 (7th Cir. 2004) (citing O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999)). To do so requires a petitioner to “put
forward operative facts and controlling legal principles.”
Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004).
Although the state concedes Simpson has “fairly pre-
sented the legal principles controlling” his waiver of counsel
claim, the state asserts nevertheless we cannot reach the
merits of the issue. The state argues that Simpson’s
outbursts constitute operative facts which were not fairly
presented to the Illinois Supreme Court or the district court
to support his invalid waiver claim. It is agreed that
Simpson did present the legal issue of the defective waiver
of counsel. Given the abundance of additional factual
support relied upon by the lower courts to deny this claim,
as we discuss below, Simpson’s outburst can hardly
be considered to be “operative,” so that its omission would
cause procedural default of an entire issue.
Simpson points to identical language in both his peti-
tion for collateral relief on direct appeal to the Illinois
Supreme Court and his petition for habeas corpus in the
district court wherein he alleged in the factual background,
“After launching into an obscenity-filled tirade against the
trial court, [Simpson] was cited for contempt and removed
from the courtroom.” But Simpson did not argue specifically
that his outburst evidenced his incompetence, and neither
court made any mention of it. In any event, it would do
Simpson no good if we were to give him the benefit of the
doubt.
Although Simpson’s outburst demonstrates ill will, bad
manners, and certainly poor litigation strategy, it does not
16 No. 04-3044
exhibit Simpson’s incapacity to waive his right to counsel.
In some instances, the use of profanity can be compulsive so
that the utterance could be considered to be involuntary,
but Simpson does not fit into this category. Simpson’s tirade
actually proved him to be quite responsive to the judge.
When the court said “you think you have nothing to lose,”
Simpson replied, “It’s not what I think.” After the court
sentenced Simpson to six months’ imprisonment, Simpson
asked for fifty years. And when the court said “I tell you
what I think,” Simpson interrupted and said, “You can’t tell
me a motherfucking thing, motherfucker.” A hothead
Simpson may be, but legally incapacitated he was not.
The other incident of Simpson’s misbehavior occurred at
a post-trial hearing on November 30, 1993, six months after
he was convicted and sentenced to death. The prosecutor
informed the court of his suspicion that Simpson had
surreptitiously filed a motion to withdraw Young’s guilty
plea on her behalf. Simpson then called the prosecutor a
“liar,” a “bitch,” and a “motherfucker” before being escorted
from the courtroom. As with the earlier blowup, we reject
Simpson’s claim that this is indicative of incompetence.5
For Simpson’s argument that he did not knowingly
waive counsel, relevant is the Illinois Supreme Court’s
review of the record in Simpson I. In Simpson I, the court
noted Simpson “raises several arguments to support his
contention he did not make a knowing and understanding
waiver of counsel.” 665 N.E.2d at 1237. The court referred
to the Sixth Amendment’s implicit right of self-representa-
5
We note that during Simpson’s post-conviction proceedings, the
trial court did make a determination as to whether there was
a bona fide issue with Simpson’s competency. Simpson II, 792
N.E.2d at 276-77. Noting that Simpson’s condition had not
deteriorated, the trial court found no reason existed to order
a competency exam, and the Illinois Supreme Court affirmed. Id.No. 04-3044 17
tion afforded to criminal defendants, as recognized by
Faretta v. California, 422 U.S. 806, 821 (1975). Id. The
court then described, properly, the governing legal stan-
dards, citing Godinez for the waiver of counsel and Johnson
v. Zerbst, 304 U.S. 458 (1938), for the waiver of a constitu-
tional right, and its own consistent precedent.
The court proceeded to address Simpson’s many argu-
ments which asserted, in essence, that the trial court did
not go far enough in probing the validity of his waiver
before and during trial, and at sentencing. Id. at 1237-39.
The court thoroughly discussed the trial record and agreed
with the trial judge that Simpson “ ‘knew what he was
doing’ when he waived his right to counsel and chose to
represent himself.” Id. at 1237. The court also concluded
that there were no subsequent developments during trial or
sentencing to require the court to appoint counsel. Id. at
1238-39. The court’s analysis is supported by our own
review of the record.
We conclude, therefore, that the district court’s denial of
Simpson’s claims regarding his waiver of the right to
counsel was appropriate.
B. Simpson’s Sentencing Issues
Simpson brings two claims related to his sentencing.
First, Simpson argues that he received inadequate assis-
tance of standby counsel for his failure to act during the
mitigation phase of Simpson’s death sentence proceedings.
Second, in light of the alleged defective counsel and his own
purported incompetence, Simpson maintains the court erred
by failing to appoint a mitigation expert.
1. Justiciability
Before we address the substance of Simpson’s sentencing
claims, the state effectively raises three distinct justici-
18 No. 04-3044
ability issues relating to Governor Ryan’s grant of clemency.
The state argues there is significance to Simpson’s less-
severe resulting sentence, the executive nature of his
confinement, and the affirmative act of his filing a peti-
tion for clemency. The state argues these circumstances
have either rendered Simpson’s sentencing claims moot or
show that he has abandoned them.
With respect to mootness, this case is governed by the
result we reached in Madej v. Briley, 371 F.3d 898 (7th Cir.
2004). In Madej, a federal district court issued a writ of
habeas corpus (due to ineffective assistance of counsel at
sentencing—an allegation Simpson makes here) ordering
the state of Illinois to conduct another sentencing hearing
for a death-row inmate. Id. at 899. The state took no ac-
tion until Governor Ryan commuted the petitioner’s sen-
tence to natural life. Id. Rather than comply with the writ,
the state sought vacatur, claiming the commutation ren-
dered the re-sentencing hearing moot. Id. The district court
disagreed because the petitioner’s conviction for first degree
murder subjected him to a statutory mandatory minimum
sentence of 20 years’ imprisonment, allowing him “to seek
a term lower than the natural-life sentence that the
Governor substituted for the death penalty.” Id. Affirming,
we noted, “A full remedy for the constitutional shortcoming
at the original sentencing hearing entails allowing [the
petitioner] to seek that lower sentence now.” Id.Simpson’s circumstances are virtually identical to the
petitioner’s in Madej. Simpson’s death sentence was
commuted to natural life by the Governor, and his statutory
minimum sentence is for a term of 20 years, see 720 ILCS
5/9-1(b)(6); 730 ILCS 5/5-8-1(a)(1)(a). Therefore it is possible
for Simpson to obtain relief, and his sentencing claims are
not moot.
The state argues Simpson’s clemency petition caused him
to abandon his state court sentencing remedies. Resolving
No. 04-3044 19
the issue requires two considerations: first, whether
Simpson satisfied the AEDPA’s exhaustion requirement,
and if so, whether Simpson’s subsequent petition for
executive clemency effected a waiver of these issues.
Federal habeas relief is not available if the petitioner has
not exhausted his state court remedies. See 28 U.S.C. §
2254 (b)(1)(A). “Failure to exhaust available state court
remedies constitutes a procedural default.” Chambers v.
McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001) (citing
Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir. 1999)).
Following the standards of procedural default we previously
explained, whether Simpson has exhausted his state
remedies for his sentencing claims turns on whether he ever
fairly presented the issues to the Illinois Supreme Court.
Simpson asserts two federal claims regarding his sentenc-
ing: ineffective assistance of counsel and the failure to
appoint a mitigation expert. Although Simpson did not raise
his defective counsel claim on direct appeal, he did include
the issue in his post-conviction petition, and the Illinois
Supreme Court rejected it on the merits. See Simpson II,
792 N.E.2d at 283-86. However, it is doubtful that Simpson
fairly presented a distinct claim that the trial judge erred
by denying him the services of a mitigation expert. But we
need not dig too deep: This claim is predicated upon our
concluding that Simpson received ineffective assistance of
standby counsel, which, as we explain below, we will not do.
Next we consider the effect of Simpson’s bid for clemency.
Simpson’s petition for clemency was filed on August 19,
2002, after his two trips to the Illinois Supreme Court, and
so it had no bearing upon which issues were before the
Illinois courts. Moreover, Simpson’s clemency bid had no
discernable substantive effect because Governor Ryan
commuted death sentences whether or not commutation
was sought. See Madigan v. Snyder, 804 N.E.2d 546, 554
(Ill. 2004) (“[I]t is apparent that [Governor Ryan] intended
20 No. 04-3044
to grant blanket clemency because he believed that Illinois’
death penalty system was broken. Thus, in this instance,
the failure of certain inmates to consent to their petitions
was irrelevant to the Governor.”).
The state argues the petition for clemency and its grant-
ing replaced the judicial remedy (death) with an executive
remedy (natural life imprisonment) under Illinois law,
putting the issue beyond our review. For this proposition,
Illinois cites to Johnson v. Murphy, 100 N.E. 980, 981 (Ill.
1913). We disagree. First, Johnson merely states that the
executive has discretion to carry out a commuted sentence
within the confines of applicable criminal statutes. Id. More
importantly, Illinois does not point to a federal standard in
which executive clemency at the state level operates to limit
the reach of federal habeas review. Cf. Burris v. Parke, 116
F.3d 256, 258-59 (7th Cir. 1997) (expressing principle that
the manipulation of state procedural mechanisms cannot be
used to insulate state decisions from collateral attack in
federal court).
Therefore, after exhausting his state court remedies,
Simpson’s subsequent clemency bid did not undo what his
two appearances before the Illinois Supreme Court accom-
plished, and we conclude it is proper to resolve Simpson’s
defective counsel claim on the habeas merits.
2. Standby Counsel
Simpson argues that the failure of standby counsel to
assist in the mitigation phase of capital sentencing consti-
tutes ineffective assistance of counsel. The state court
decision relevant for discussion is Simpson II. 792 N.E.2d
at 283-285.
In Faretta v. California, the Supreme Court recognized a
criminal defendant’s Sixth Amendment right to represent
himself pro se (the “Faretta right”). 422 U.S. at 819-20. The
No. 04-3044 21
Court noted, “Of course, a State may—even over the
objection by the accused—appoint a ‘standby counsel’ to aid
the accused if and when the accused requests help, and to
be available to represent the accused in the event that
termination of the defendant’s self-representation
is necessary.” Id. at 834 n.46 (citation omitted) (emphasis
added).
In McKaskle v. Wiggins, 465 U.S. 168 (1984), the Court
elaborated on the interplay of the role of standby counsel
and a criminal defendant’s Faretta right of self representa-
tion. The Court noted the Faretta right serves two objec-
tives: to preserve a defendant’s autonomy and, occasionally,
to present the best possible defense. Id. at 176-77. The
Court stated that the ends of the Faretta right may be
served without barring outright the participation of unsolic-
ited standby counsel. Id. On the other hand, to give effect to
the Faretta right, the Court established limits: “the pro se
defendant is entitled to preserve actual control over the case
he chooses to present to the jury,” and “participation by
standby counsel without the defendant’s consent should not
be allowed to destroy the jury’s perception that the defen-
dant is representing himself.” Id. at 178.
Simpson couches his argument in the wrong terms
(beyond foregoing any discussion of the Illinois Supreme
Court’s decision in Simpson II). Rather than assert his is
the case directly contravening Supreme Court precedent, he
merely maintains that some level of involvement by standby
counsel, both before the jury’s presence and beyond it, is
within the contemplation of the Supreme Court’s precedent.
Simpson ignores our limited standard of review under
§ 2254 and urges us to extend the Sixth Amendment right
of effective assistance of counsel to include a right to
standby counsel, with the duty in a death penalty case to
reasonably investigate mitigating evidence. See Homan v.
Gilmore, 126 F.3d 876, 885 (7th Cir. 1997) (“No such
principle has been adopted to date by the Supreme Court,
22 No. 04-3044
so § 2254(d)(1) precludes its recognition for the first time on
collateral review.”).
The Faretta right and the appointment of standby counsel
inherently conflict which, taking into account that hybrid
representation is not required, McKaskle, 465 U.S. at 183,
supports the conclusion that there is no right to standby
counsel. Certainly there is no Supreme Court precedent
clearly establishing such a right. See United States v.
Windsor, 981 F.2d 943, 947 (7th Cir. 1992) (“This court
knows of no constitutional right to effective assistance of
standby counsel.”). When standby counsel is appointed, the
primary concern is that appointed counsel does too much, so
as to abrogate the Faretta right to self-representation, not
too little. See McKaskle, 465 U.S. at 177 (“[T]he objectives
underlying the right to proceed pro se may be undermined
by unsolicited and excessively intrusive participation by
standby counsel.”). Therefore, the inadequacy of standby
counsel’s performance, without the defendant’s relinquish-
ment of his Faretta right, cannot give rise to an ineffective
assistance of counsel claim under the Sixth Amendment.
See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)
(citations omitted) (holding no deprivation of effective
assistance was possible where there was no constitutional
right to counsel); accord Coleman v. Thompson, 501 U.S.
722, 752 (1991) (citations omitted). Simpson does not
provide, nor could we find, a Supreme Court case holding
standby counsel in a capital case should be treated any
differently.
With that understanding, we proceed to the Illinois
Supreme Court’s consideration of Simpson’s claim. Simpson
II, 792 N.E.2d at 283-86. The court cited its own precedent
to state, consistent with the Supreme Court’s rulings, that
“[t]he right of self-representation does not carry with it a
corresponding right to legal assistance; one choosing to
represent himself must be prepared to do just that.” Id. at
283 (citation omitted). The court then correctly relied upon
No. 04-3044 23
McKaskle to describe the duties of standby counsel. Id.Finally the court, again applying state law congruous with
federal law, noted the trial court had broad discretion to
appoint standby counsel and to delineate his role. Id.(citation omitted).
The Illinois court continued to address Simpson’s argu-
ments supporting his claim of ineffective assistance
of standby counsel. The court applied the two-prong test
established in Strickland v. Washington, 466 U.S. 668(1984), and, in the context of Simpson’s case, concluded that
Simpson was “required to establish that the actions of
standby counsel prevented [Simpson] from accomplishing
something he otherwise intended to accomplish or would
have been able to accomplish if standby counsel had not
prevented him from doing so, either through unreasonable
advice or direct action.” Id. at 285. Because standby coun-
sel’s primary duty is not to interfere with a defendant’s
Faretta right of self-representation, the standard set by the
Illinois court in no way amounts to an unreasonable
application of clearly established federal law. The court
found that Simpson had not explained in any way how
standby counsel prevented him from introducing evidence
in mitigation and concluded that Simpson’s claim had “no
merit.” Id. at 286.
Our review of the record brings us to a conclusion consis-
tent with the reasoning of the Illinois Supreme Court. The
trial judge appointed standby counsel to allow the trial to
continue should another outburst cause Simpson to be
removed from the courtroom. In addition to normal standby
duties, the trial court directed standby counsel to assist
Simpson, who was incarcerated during all phases of the
proceedings, in the discovery of items Simpson sought.
During trial, Simpson was never removed from the court-
room, and so standby counsel was never required to take
the reins of Simpson’s defense. Moreover, Simpson does not
argue that standby counsel did not follow the trial court’s or
24 No. 04-3044
Simpson’s instructions. In fact, Simpson concedes he never
asked for standby counsel to conduct a mitigation investiga-
tion or to present mitigation evidence to the capital sentenc-
ing jury.
It was Simpson’s own decision not to provide the jury with
mitigation evidence. The goal of this strategy, for better or
worse, was to obtain an avenue of appeal directly to the
Illinois Supreme Court that a death sentence would bring.
The deficiencies of which Simpson now complains were
products of his self-representation and do not constitute
defective assistance of counsel. See McKaskle, 465 U.S. at177 n.8 (“[A] defendant who exercises his right to appear
pro se ‘cannot thereafter complain that the quality of his
own defense amounted to a denial of effective assistance of
counsel.’ ” (quoting Faretta, 422 U.S. at 834 n.46) (internal
quotation omitted)). Moreover, standby counsel, under
Faretta, was bound not to interfere with Simpson’s pro se
efforts. The Illinois Supreme Court was not unreasonable to
summarize, “Here, [Simpson] seeks to avoid the conse-
quences of his decision to represent himself during the
second stage of the sentencing hearing.” Simpson II, 792
N.E.2d at 285.
3. Appointment of a Mitigation Expert
Simpson argues, given the ineffective assistance of
standby counsel and his own incompetence, it was error for
the trial court not to appoint a mitigation expert. However,
as previously noted, this claim by its own terms presup-
poses our finding in Simpson’s favor on the two previous
questions on appeal. Because we answered them in the
negative, we need not consider whether Simpson exhausted
this claim in the state courts or, for that matter, the merits
of this claim.
No. 04-3044 25
C. The Court’s Evidentiary Rulings
Finally, Simpson alleges police coerced his co-defendant,
Lularn Young, into consenting to the first search of her (and
Simpson’s) apartment by denying her access to diabetic
supplies until she signed the consent to search form.
Simpson contends that the prosecution withheld evidence
of the coercion, in violation of Brady v. Maryland, 373 U.S.
83, 87 (1963). Simpson claims that Young’s consent allowed
police to conduct an illegal search of Simpson’s home, the
fruits of which include: all the evidence arising from the
initial search of Simpson’s apartment, Simpson’s
warrantless arrest, the lineup identification of Simpson,
and the testimony of witnesses who observed the lineup.
The district court found Simpson objected to the search in
state court but did not argue Young’s consent was coerced.
Simpson admits he defaulted this claim by not raising it in
state court but maintains he did not learn of the coercion
until 2002, when his attorney interviewed Young in connec-
tion with his habeas petition. The district court determined
Simpson had sufficiently shown that the state’s alleged
concealment of the coercion was the cause of the default.
However, the district court found that Simpson was not
prejudiced by the state’s alleged withholding of evidence
because the state otherwise had presented ample evidence
to support a conviction. The court pointed to evidence of
Simpson’s guilt which he did not contest to be fruits of an
illegal search, such as LaGrone’s testimony that she
committed the robbery with Simpson and that Simpson shot
the murder victim; forensic evidence linking the spent
cartridge and bullet fragment recovered from the scene to
a gun found in the storage locker in Simpson’s basement;
and the custodial statements of LaGrone and Young
implicating Simpson.
The court found that the prejudice required to prevail on
Simpson’s Brady claim was merged with the prejudice he
26 No. 04-3044
needed to show to excuse his procedural default. The court
concluded Simpson had not shown why his procedural
default should be excused or, alternatively, that the with-
held evidence cleared Brady’s materiality threshold.
There are a number of reasons to affirm the district
court’s denial of Simpson’s Brady claim. Suffice it to say,
there is no clear error with the district court’s determina-
tion that Simpson was not prejudiced; the district court
appropriately found ample evidence existed upon which a
jury could convict. The court’s denial of Simpson’s Brady
claim was correct.
III. CONCLUSION
For the reasons set forth above, the district court’s denial
of Simpson’s § 2254 petition is AFFIRMED.
No. 04-3044 27
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-11-06