Linda Sutton was last seen alive in Chicago at eleven o’clock on the night of May 23, 1981, and her body was found a week later in a field beside a motel in Villa Park, in Du Page County, her hands cuffed behind her back. Edward Spreitzer was one of four young men, with Robin Gecht and the brothers Andrew and Thomas Kokoraleis, who were charged in a series of abductions and mutilation murders of women in and around Chicago in 1981 and 1982, the group the press called the Ripper Crew. Spreitzer confessed in November 1982, pleaded guilty to four murders in Cook County, and admitted involvement in four more. For Sutton’s murder he was tried in Du Page County, convicted by a judge in March 1986 and sentenced to death.
The Supreme Court of Illinois affirmed his conviction and death sentence on March 23, 1988, in the opinion at the center of this collection, which sets out his statements, the evidence tying him to the other killings, and the mitigation case his lawyers built from his childhood, his schooling and his family. In 1991 the same court rejected his first petition for post-conviction relief.
The four Seventh Circuit opinions are from his federal habeas case. A district court granted him a new sentencing hearing because of the instructions his jury had received; on May 23, 1997, the Seventh Circuit reversed that grant and let the death sentence stand, and two short orders that year clarified what it had decided. In July 2000 it affirmed the denial of his remaining claims. His sentence was commuted to life in prison in January 2003, when the Governor of Illinois commuted every death sentence in the state.
These opinions describe the evidence as the court accepted it, and the facts of the other killings come largely from Spreitzer’s own statements and those of the other members of the group. The four Cook County murders he pleaded guilty to were not tried, and the courts refer to them only as part of his history. The commutation in 2003 came after these opinions and is not part of this record.
The six opinions are public records. Linda Sutton and the other victims the court names keep their names, and so do Spreitzer’s co-defendants, the police, prosecutors, public defenders, experts and judges. We have given initials to a woman who survived an attack the court describes, to two neighbors who gave statements, and to his mother, sister and family friends who testified in mitigation.
The Caselaw Access Project text is printed complete and in date order. The 1988 opinion is long and quotes the trial testimony at length; the capture renders one citation as “En Bane” for en banc and keeps a few other scanning errors, which are left as printed. We closed words split across lines only where the whole word appears elsewhere in the text.
(No. 63423.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EDWARD SPREITZER, Appellant.
Opinion filed March 23, 1988.
Rehearing denied May 31, 1988.
Charles M. Schiedel, Deputy Defender, of Springfield, and Charles Hoffman, Assistant Appellate Defender, of Chicago, of the Office of the State Appellate Defender, for appellant.
Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Roma Jones Stewart, Solicitor General, and Terence M. Madsen and Scott Graham, Assistant Attorneys General, of Chicago, of counsel), for the People.
[OPINION BY JUSTICE CLARK type=majority]
JUSTICE CLARK
delivered the opinion of the court:
Together with codefendants Andrew and Thomas Kokoraleis, the defendant, Edward Spreitzer, was indicted in the circuit court of Du Page County for the knowing murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)(2)) and aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10—2(a)(3)) of Linda Sutton. The circuit court granted the defendant’s motion for a severance and accepted his waiver of a jury trial. After a bench trial, the defendant was found guilty of both charges. The State then requested a death penalty hearing and the defendant elected to be sentenced by a jury. Upon proof that the defendant was 18 years of age or older at the time of the offenses and that he had committed multiple murders, a statutory aggravating factor (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(3)), the jury found the defendant eligible for the death penalty. After hearing evidence in mitigation, the jury found that there were no mitigating factors sufficient to preclude a sentence of death. The circuit court imposed a sentence of death and 60 years in prison for aggravated kidnapping. The death sentence has been stayed (107 Ill. 2d R. 609(a)) pending direct review by this court (Ill. Const. 1970, art. VI, §4(b); 107 Ill. 2d R. 603).
The Convictions
At the defendant’s bench trial, the State presented the following evidence. The victim, Linda Sutton, was last seen alive at 11 p.m. on May 23, 1981, in Chicago. Her partially decomposed body was found seven days later in a field east of the Brer Rabbit Motel in Villa Park, Illinois. Her breasts had apparently been amputated, and her hands were cuffed behind her back. A coroner’s autopsy established that her death was probably caused by several stab wounds in her chest.
In November of 1982, after an investigation by Chicago law enforcement authorities into a series of similar homicides, the defendant confessed to participating in the killing of Linda Sutton.
On November 5, 1982, the defendant spoke with Chicago Detective Thomas Flynn and Cook County Assistant State’s Attorney Richard Beuke. He gave them a statement which contained the following facts.
In May 1981, the defendant was living in the Brer Rabbit Motel and working at Winchell’s Donut Shop. While working there he met a man named Robin Gecht, who occasionally visited the shop, usually after midnight. On one particular night, when the defendant’s car would not start, the defendant left work after his supervisor, who had promised to give him a ride into Chicago, failed to show up. Seeing Gecht in the area, the defendant asked him for a ride into Chicago, and Gecht agreed.
After they had been riding together in Gecht’s van for some time, they decided to “pick up some whores.” When they reached the comer of Broadway and Addison streets in Chicago, Gecht “took him to the back of the van and told him that when they found a whore they wanted to get *** (the defendant) would get into the back of the van and stay there until he heard two taps to the side of the van, and when he heard the two taps, he was to get out of the van and come and help Gecht.” Gecht said that they would “take care of the whore.” He assured the defendant that the defendant would not “get into any trouble.”
After the defendant had entered the rear of the van he heard Gecht speaking with someone whom the defendant described as having a black female voice. She entered the front part of the van. After a brief discussion, overheard by the defendant, Gecht gave her “a couple of pills.” The three then drove west for approximately 30 minutes. When the van stopped, the defendant heard two taps and he left from the rear of the van, meeting Gecht outside the front passenger door. Gecht was holding a pair of handcuffs and a knife. A black woman, whom the defendant later identified from a photograph as Linda Sutton, was sitting in the front passenger seat. Gecht pulled her out of the van, handcuffed her wrists, and then pushed her into a wooded or “bushy” area a short distance from the van.
After Gecht and Sutton had been in the bushes for five minutes, the defendant heard Sutton moaning and saying: “What are you doing to me? Why are you doing this?” Hearing Gecht whistle, the defendant went over to the bushes, where he saw that Gecht had severed one of Sutton’s breasts and was “having sex” with the area where the breast had been severed. Sutton’s severed breast was lying next to her on the grass.
Gecht told the defendant to get some wire from the van. The defendant returned from the van with the wire, which Gecht then used to sever Sutton’s other breast. The defendant then “had sex” with the area where the other breast had been severed. After the defendant had finished, Gecht picked up the wire and the two severed breasts. Sutton was still in the bushes with her hands cuffed behind her back. The two men left the scene, and Gecht drove the defendant to the defendant’s mother’s home.
In a second statement, the defendant gave a differing version of these events. This second statement was given to Assistant State’s Attorney Beuke on November 8, 1982. In this statement the defendant maintained that Andrew Kokoraleis was also present when Sutton was picked up. When Sutton began to scream, Kokoraleis punched her, knocking her into the rear of the van. As she continued to scream, Kokoraleis and the defendant “punched her several times in the face until she shut up.” They then drove to the Brer Rabbit Motel and took her to the defendant’s room. After she was gagged and handcuffed to the bedposts, Gecht, Kokoraleis, and the defendant each sexually assaulted her. At several points Kokoraleis stuck a “Coke” bottle into her vagina. Later they took her from the motel and killed her as the defendant had described in his earlier statement.
The defendant also testified in his own behalf. He admitted the truth of the statement of November 5, but retracted the statement of November 8. He admitted that he had, supposedly on Gecht’s orders, removed Sutton’s remaining breast with the wire he had taken from the van. He also admitted placing his erect penis in the wound on Sutton’s chest where her breast had been, and leaving it there for some period of time shorter than five minutes.
The circuit court judge found the defendant guilty of the murder and aggravated kidnapping of Linda Sutton.
The defendant raises only one challenge to his conviction. He claims that the prior involvement of Du Page County Public Defender Peter Dockery as a prosecutor in his case disqualified Dockery and all assistant defenders in his office from representing the defendant. The facts pertinent to this claim follow.
At the time of the defendant’s indictment, the Du Page County public defender, Frank Wesolowski, was appointed to represent the defendant. Wesolowski assigned the defendant’s case to Assistant Public Defender Edward Ward. On June 4, 1985, Ward advised the court that he had resigned his position as an assistant public defender but that he would continue to represent the defendant until a replacement had been hired. Two weeks later, on June 18, 1985, Wesolowski himself appeared on behalf of the defendant and informed the court that he would be assigning the defendant’s case to Assistant Public Defender Carol Anfinson. Wesolowski also informed the court that he had hired Peter Dockery, formerly an assistant State’s Attorney in the office of the State’s Attorney of Du Page County, to replace Ward. According to Wesolowski, Dockery was “very much involved” in the decision to charge Spreitzer for the murder of Linda Sutton. Wesolowski then stated, and the assistant State’s Attorney present agreed, that Dockery could not be assigned to the case because of a conflict of interest stemming from his former involvement in the case’s prosecution.
Ward continued to represent the defendant by special appointment until September 23, 1985. On that date, Ward was allowed to withdraw and the public defender’s office was reappointed to represent the defendant. Assistant Public Defender Anfinson then filed her appearance on the defendant’s behalf. By early February 1986, prior to the start of the defendant’s trial, Dockery had become the Du Page County public defender and his name began to appear as the defendant’s attorney on pleadings filed by the defense. His name first appeared on such a pleading on February 12,1986.
While the defendant claims he was deprived of the effective assistance of counsel by a conflict of interest, he has not made entirely clear the nature of the conflict being alleged. It is clear that the conflict is premised upon Dockery’s personal involvement in the decision to charge the defendant, and not merely upon his employment as an assistant State’s Attorney at the time the defendant was charged. However, the defendant has not made clear when Dockery’s association with the public defender’s office triggered the alleged conflict. At times, the defendant seems to be arguing that the conflict was created when Dockery was appointed to be an assistant public defender; more often he appears to be arguing that the conflict was created when Dockery became the public defender and the head of the public defender’s office. He explicitly divides his argument into the claim that Dockery’s status as the public defender disqualified “Dockery,” i.e., the office of the public defender, from appearing on his behalf, and into the separate argument that Anfinson’s status as Dockery’s employee disqualified her from representing the defendant. The defendant also claims that the conflict was “per se” and requires no showing of “prejudice”; in the alternative he claims that weaknesses in Anfinson’s performance as his attorney demonstrates that he was in fact “prejudiced” by her subliminal reluctance to attack her employer. Both sides agree that Dockery was disqualified from personally representing the defendant.
The prohibition against conflicts of interest is based upon the principle that “no man can serve two masters.” Such service by a criminal defense attorney may implicate his client’s constitutional rights. Persons accused of crime enjoy a sixth amendment right to the effective assistance of counsel. (Cuyler v. Sullivan (1980), 446 U.S. 335, 343, 64 L. Ed. 2d 333, 343, 100 S. Ct. 1708, 1715; Glasser v. United States (1942), 315 U.S. 60, 70, 86 L. Ed. 680, 699, 62 S. Ct. 457, 464-65.) Effective assistance means assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations. (People v. Washington (1984), 101 Ill. 2d 104, 110; see also People v. Franklin (1979), 75 Ill. 2d 173; People v. Kester (1977), 66 Ill. 2d 162; People v. Stoval (1968), 40 Ill. 2d 109.) So much is clear. What has been perhaps less clear, both for ourselves and for the United States Supreme Court, is when and under what circumstances conflicting interests will mandate the reversal of a conviction.
This lack of clarity has partially stemmed from a confusing, and sometimes inconsistent, use of such terms as “per se conflict,” “potential conflict,” “possible conflict,” “actual conflict,” “prejudice,” and “actual prejudice.” To clarify these terms, and to set the stage for our analysis, we review the relevant law.
The term “per se” conflict does not appear in the United States Supreme Court case law, or for that matter, in cases from our sister jurisdictions. Instead, it was a term invented by our court in People v. Coslet (1977), 67 Ill. 2d 127, 133, to describe the holding in Coslet and our prior holdings in People v. Kester (1977), 66 Ill. 2d 162, and People v. Stoval (1968), 40 Ill. 2d 109. Subsequently, People v. Fife (1979), 76 Ill. 2d 418, and People v. Washington (1984), 101 Ill. 2d 104, have also applied a per se conflict of interests rule.
In each of these cases certain facts about a defense attorney’s status were held to engender, by themselves, a disabling conflict. In every case the conflict was created by the defense attorney’s prior or contemporaneous association with either the prosecution or the victim. (See People v. Washington (1984), 101 Ill. 2d 104 (defense attorney simultaneously served as a part-time attorney for the municipality where the defendant was being prosecuted); People v. Fife (1979), 76 Ill. 2d 418 (defense attorney simultaneously served as a special assistant Attorney General handling unemployment compensation cases for the State on a part-time basis); People v. Coslet (1977), 67 Ill. 2d 127 (defense attorney simultaneously served as the attorney for the administrator of the victim’s estate); People v. Kester (1977), 66 Ill. 2d 162 (defense attorney had previously served as the assistant State’s Attorney in the State’s prosecution of the defendant and had made three court appearances on the State’s behalf); People v. Stoval (1968), 40 Ill. 2d 109 (defense attorney and his firm simultaneously represented the defendant, the corporation whose store had been burglarized and the store’s owner).) In each of these cases we have said that there is no need to show that the attorney’s actual performance was in any way affected by the existence of the conflict. (See People v. Washington (1984), 101 Ill. 2d 104, 109, 113 (conflict found where defense attorney was obliged to cross-examine police officers employed by the municipality he represented, even in absence of allegation that cross-examination was in any way defective); People v. Fife (1979), 76 Ill. 2d 418, 422 (conflict found even though “[t]he defendant does not believe that counsel here was anything less than diligent”); People v. Coslet (1977), 67 Ill. 2d 127, 135-36 (conflict found even though question of attorney’s performance is “not before us”); People v. Kester (1977), 66 Ill. 2d 162, 168 (conflict found despite absence of showing that “counsel did not represent the defendant in a competent and dedicated manner with complete loyalty to him”); People v. Stoval (1968), 40 Ill. 2d 109, 113 (conflict found despite absence of showing that “the attorney did not conduct the defense of the accused with diligence and resoluteness”).) Another way of expressing the same result has been to say that, as to per se conflicts, the defendant need not show “prejudice” or “actual prejudice” in order to secure a reversal of his conviction. See People v. Stoval (1968), 40 Ill. 2d 109,113.
The justification for treating these conflicts as per se has been that the defense counsel in each case had a tie to a person or entity — either counsel’s client, employer, or own previous commitments — which would benefit from an unfavorable verdict for the defendant. The existence of such a tie created, in each instance, several problems. First, the knowledge that a favorable result for the defendant would inevitably conflict with the interest of his client, employer or self might “subliminally” affect counsel’s performance in ways difficult to detect and demonstrate. (See People v. Washington (1984), 101 Ill. 2d 104, 113 (noting “possibility *** that the attorney’s duty of undivided loyalty to the accused was affected by contradicting obligations” to the municipality he served as a prosecutor, and “the subtle and subconscious pressure the suggested conflict may have had on counsel”); People v. Fife (1979), 76 Ill. 2d 418, 424 (noting “the possible, perhaps subliminal pressure a defense counsel who is also a special assistant for workmen’s compensation cases might receive from the Attorney General’s office”); People v. Kester (1977), 66 Ill. 2d 162, 167 (noting possibility that attorney “might be subject to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous manner,” and that “[i]t might be contended, for example, that the advice and performance of court-appointed counsel in such a situation was affected by a subliminal reluctance to attack pleadings or other actions and decisions by the prosecution which he may have been personally involved with or responsible for”); People v. Stoval (1968), 40 Ill. 2d 109, 113 (noting that representation by an attorney who labors under a possible conflict of interests is “unfair to the accused, for who can determine whether his representation was affected, at least, subliminally, by the conflict”).) A second consideration in per se conflict of interest cases has been the possibility that the conflict will unnecessarily subject the attorney to “later charges that his representation was not completely faithful.” (Stoval, 40 Ill. 2d at 113; see also Kester, 66 Ill. 2d at 168 (“a lawyer who may have provided an able and vigorous defense with complete loyalty to the defendant is placed in the difficult and unfortunate position of being subject to unfounded charges of unfaithful representation”).) In these situations, we have reversed convictions unless the record reflects that the defendant has been made aware of the conflict and has knowingly waived his right to conflict-free counsel. E.g., People v. Fife (1979), 76 Ill. 2d 418, 424.
In a second class of alleged conflicts, neither our court nor the United States Supreme Court has used the term per se, and have sometimes refused to reverse a conviction without a showing ..that the conflict actually affected the attorney’s performance. These conflicts have generally, although not exclusively (see People v. Banks (1987), 121 Ill. 2d 36), involved joint or multiple representation of codefendants. (See, e.g., Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; People v. Jones (1988), 121 Ill. 2d 21; cf. People v. Robinson (1979), 79 Ill. 2d 147; People v. Spicer (1979), 79 Ill. 2d 173.) Treating multiple representation as creating a per se conflict would put an end to multiple representation altogether, since a “possible conflict inheres in almost every instance of multiple representation,” and a per se rule would “preclude multiple representation even in cases where ‘[a] common defense *** gives strength against a common attack.’ ” (Cuyler, 446 U.S. at 348, 64 L. Ed. 2d at 346, 100 S. Ct. at 1718, quoting Glosser v. United States (1942), 315 U.S. 60, 92, 86 L. Ed. 680, 710-11, 62 S. Ct. 457, 475 (Frankfurter, J., dissenting).) In these situations, two distinct lines of analysis have been employed, depending upon whether the trial court was ever apprised of the possible or potential conflict.
If counsel brings the potential conflict to the attention of the trial court at an early stage, a duty devolves upon the trial court to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178.) If such steps are not taken, the fact of a “potential or possible conflict may deprive the defendant of the guaranteed assistance of counsel.” (Emphasis in original.) (People v. Jones (1988), 121 Ill. 2d 21, 28.) While this rule is not per se (since it is the attorney’s contemporaneous allegations of a conflict and not the mere presence of multiple representation which gives rise to the trial court’s duty), reversal of a conviction under this rule does not require a showing that the attorney’s actual performance was in any way affected by the purported conflict. In this sense, reversal for the trial court’s failure to alleviate possible or potential conflicts does not require a showing of “specific prejudice.” Holloway, 435 U.S. at 487, 55 L. Ed. 2d at 436, 98 S. Ct. at 1180.
However, if the trial court is not apprised of the potential conflict, then reversal of the conviction will only be had upon a showing that “an actual conflict of interest adversely affected” counsel’s performance. (Cuyler, 446 U.S. at 350, 64 L. Ed. 2d at 348, 100 S. Ct. at 1719.) What this means is that the defendant must point to some specific defect in his counsel’s strategy, tactics, or decision making attributable to the conflict. In this sense, proof of an actual conflict of interest requires proof of what we have sometimes referred to in our per se cases as “prejudice” or “actual prejudice.” On the other hand, it is also clear that the defendant is never required to prove that his attorney’s deficiencies did not constitute harmless error. He is not required, in other words, to prove that the conflict contributed to his conviction. This is what is meant by the statements that can be found in our cases and in United States Supreme Court cases to the effect that “a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.” (Cuyler, 446 U.S. at 349-50, 64 L. Ed. 2d at 347, 100 S. Ct. at 1719; see also People v. Washington (1984), 101 Ill. 2d at 110, 112 (“the defendant need not show prejudice in order to justify a reversal of his conviction if the attorney representing him has an actual or possible conflict of professional interests” and “[w]hen an actual conflict has been shown, it is unnecessary to demonstrate prejudice in order to sustain a claim of violation of the right to the assistance of counsel”).) Having hopefully clarified the meaning of key terms in our analysis, we proceed to the merits of the defendant’s claim.
As we have stated above, we proceed on the assumption that the defendant is basing his claim only on Dockery’s personal involvement in the decision to charge him, and not merely upon Dockery’s employment as an assistant State’s Attorney at the time of that decision. The latter claim would be utterly without merit. As the State cogently argues, it would be ludicrous to disqualify Dockery or the Du Page County public defender’s office from handling any cases which were initiated during Dockery’s employment as an assistant State’s Attorney and which were still pending at the time he became an assistant public defender or at the time he became the public defender. Such a rule would have the undesirable effect of discouraging public defender’s offices from hiring competent former prosecutors. Particularly in small counties where the entire criminal bar is itself not very large, a per se rule against assignment of an entire cohort of cases to a public defender who happens to employ a former prosecutor would be an administrative, and financial nightmare. The defendant has not identified any interest which would justify such a rule.
Proceeding on the assumption that the defendant is only arguing for the existence of a conflict in those cases where Dockery had some personal prosecutorial involvement, we next consider the broad claim that a conflict was created at the time he was hired as an assistant public defender. We find this claim also to be without merit.
Insofar as Dockery’s employment as an assistant public defender created any conflict at all, it could only have been because Anfinson might have been subliminally reluctant to attack the prior decisions or behavior of someone who was now her colleague and associate. In support of this argument, the defendant cites one of the ABA’s Standards for Criminal Justice which provides that “[i]t is unprofessional conduct for a lawyer to defend a criminal case in which the lawyer’s partner or other professional associate is or has been the prosecutor.” (ABA Standards for Criminal Justice (The Defense Function, Standard 4—3.5(d) (2d ed. 1986)).) A literal reading of Standard 4—3.5(d) would preclude Anfinson from defending a case in which her associate, Dockery, had been the prosecutor.
We are reluctant to apply Standard 4—3.5(d) to professional “associates” in a public defender’s office, at least as a flat prohibition or per se rule. Our reluctance stems from several sources. First, we are mindful of the fact that we have declined to create a per se rule in the analogous situation of two public defenders from the same office who represent codefendants. (See People v. Robinson (1979); 79 Ill. 2d 147; People v. Spicer (1979), 79 Ill. 2d 173.) Absent a showing of special circumstances which might engender an actual conflict, we have trusted to the naturally adversarial instinct of a public defender to put his client’s interests first.
The defendant counters that this case is more similar to our per se cases, since it involves a conflict between representation of interests which are irreconcilably divergent, those of the prosecution and the defense, rather than the possibly harmonious interests of codefendants. The defendant’s argument misses the point. The asserted danger in the Banks-Robinson-Spicer line of cases was not so much that a single lawyer would attempt to represent the conflicting interests of two defendants as that a lawyer’s loyalty to his client would be diluted by a conflicting allegiance to a fellow lawyer. Similarly, this asserted conflict also involves a choice between the interests of a client and the interests of a colleague. Unlike our per se cases, it does not involve a direct conflict between the interests of two opposing clients or between a present client and a past personal commitment. It is therefore more appropriate to apply the case-by-case analysis of the Banks-Robinson-Spicer line of cases rather than the per se approach of Stoval and its progeny.
Our conclusion in this respect is not affected by the decisions in United States v. Kitchin (5th Cir. 1979), 592 F.2d 900, and State v. Morelli (1977), 152 N.J. Super. 67, 377 A.2d 774. In each of those cases, the prosecution, rather than the defense, invoked Standard 4—3.5(d). In each case, the prosecution wished to prevent the representation of the defendant by an attorney associated in practice with a second attorney who had previously played a role in the prosecution of the defendant. Both of these cases were premised upon the prosecution’s interest in preventing the revelation of confidential information to the defense. The State has not invoked such an interest here.
We therefore hold, that insofar as the defendant’s claim is premised upon the mere employment of Dockery as an assistant public defender, it does not assert a per se conflict. We next consider whether a per se conflict was created by Dockery’s elevation to the post of public defender.
We do not agree with the defendant that Anfinson’s status as Dockery’s employee created a per se conflict. Unlike the conflicts posed in our other per se cases, the asserted disjunction between Anfinson’s duty to her client and her supposedly conflicting loyalty to Dockery is extremely speculative and remote. We are asked to believe that Anfinson would refrain from zealously representing her client because such representation might embarrass Dockery in some way. But Dockery’s tie to the prosecution, a tie which was itself fairly tenuous, would be counterbalanced by his present status as the public defender. Presumably he was more interested in winning cases currently assigned to his office than in protecting the integrity of the -decisions he had made when he was a prosecutor. Moreover, the subliminal reluctance felt by the prosecutor-tumed-defense counsel in Kester towards attacking his own personal decisions would not apply to Anfinson, who would not have to attack anything she had personally done.
Since there was no per se conflict it remains to be determined whether there was a potential conflict brought to the attention of the court or an actual conflict demonstrated by the performance of counsel at trial. Clearly, the potential conflict was not brought to the attention of the court. Anfinson made no motions for appointment of separate counsel after Dockery became the public defender and never raised the issue in any other form.
The defendant’s brief contains a number of eonclusory allegations to the effect that Anfinson’s performance at trial was hampered by an actual conflict of interest. However, the defendant fails to identify any specific deficiencies in Anfinson’s performance which might have stemmed from the alleged conflict.
We therefore affirm the defendant’s conviction, and move on to consider the alleged errors which relate to the defendant’s sentences.
The Sentences
Following the defendant’s conviction, the State requested a death penalty hearing, citing the “multiple murder conviction” aggravating factor (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(b)(3)), and the defendant elected to be sentenced by a jury.
At the death qualification phase of the hearing, the State introduced a certified copy of the defendant’s conviction for the murder of Linda Sutton. The State also proved that the defendant was 20 years old at the time of the murder. Through the testimony of Assistant State’s Attorney Joel Goldstein, the State established that in April 1984, the defendant had pled guilty to four murders in Cook County. The victims were Shui Mak, Rose Davis, Sandra Delaware, and Raphael Tiradao. The jury found the defendant eligible for the death penalty.
At the second phase of the death penalty hearing, the State presented the following evidence in aggravation.
Du Page sheriff’s Detective Warren Wilcosz and Investigator Thomas Vosburgh described the discovery of Linda Sutton’s body on June 1, 1981, near the Brer Rabbit Motel. Wilcosz further testified that in October 1982 he learned of a similar incident in which a black woman named B.W. had been found in an alley in Chicago. Her breasts had been mutilated, but she was alive. W. told Chicago police that she had entered a van, had been given pills, and had lost consciousness. She described the van as a Red Dodge with blue and white feathers hanging from the rear view mirror and a wooden partition which separated the front of the van from the rear. Upon learning these facts, Wilcosz contacted Chicago police and told them of the facts of the Sutton case.
On October 20, 1982, Chicago police detective Thomas Flynn stopped a van which fit the description given by B.W. and which was being driven by the defendant. The defendant told Flynn that the van belonged to his employer, Robin Gecht. The defendant then took Flynn to Gecht, who produced registration for the van. Gecht and the defendant were then taken to Area Five Police Headquarters and released.
On October 26, and November 5, 1982, Du Page Detective Wilcosz spoke with the defendant at the defendant’s home. The defendant acknowledged that he had been to the field east of the Brer Rabbit Motel many times to take drugs, have sex with girls, and to ride his motorcycle. He also told Wilcosz that he had ridden with Gecht in Gecht’s van on May 23, 1981, and that they had picked up a black prostitute. However, they had become involved in a fight with some pimps and the prostitute had left. The defendant failed to identify a photograph of Sutton as the prostitute.
On the evening of November 5, 1982, the defendant agreed to come to Area Five for further questioning. There he admitted to Detective Flynn his involvement in the Sutton and W. cases. Later that night, the defendant made additional statements to Flynn and to Assistant State’s Attorney Beuke, in which the defendant further admitted involvement in a number of other unsolved killings and maimings. According to the defendant, the first killing he had been involved in was that of Linda Sutton.
Evidence of the defendant’s statement about Sutton was the same as that presented at trial, discussed earlier in this opinion. The defendant’s account of the other killings follows in chronological order.
The second killing took place on July 1, 1981, slightly over one month after the murder of Linda Sutton. The defendant and Gecht picked up a black female hitchhiker near North Avenue and Route 83. She took some pills and became “spacey.” Gecht then drove to a cemetery where he parked, pulled the woman out of the car, and struck her twice with a baseball bat. Five minutes later, Gecht returned to the van with the bat and with one of the woman’s breasts. The identity of this woman is unknown.
The third killing took place in August of 1981. Gecht gave the defendant a ride to Winchell’s Donuts to pick up the defendant’s paycheck. They saw a black female hitchhiker. Gecht told the defendant to get into the rear of the van. Gecht picked the hitchhiker up and drove to a forest preserve. He stopped the car, and tapped twice on the floor of the van. The defendant then left the van through the rear door, taking a knife and a pair of handcuffs with him. Meeting Gecht at the front passenger door, he gave the knife and handcuffs to Gecht, who put the handcuffs on the woman.
Gecht told the defendant to stay near the van while he took the woman into a wooded area. As the defendant sat in the van, he saw Gecht knock the woman down. Five minutes later, Gecht returned to the van with one of the woman’s breasts. The identity of this woman is also unknown.
The third victim was Lorraine Borowski, who was last seen alive on the morning of May 15, 1982, walking to her job at Remax Realtors in Elmhurst. The State presented evidence that her skeletonized remains were found on October 20, 1982 in an undeveloped area of Clarendon Hills Cemetery. A physical anthropologist testified that her left nipple was missing. Wounds to her ribs and breastbone indicated that she had been stabbed several times.
In his statement, the defendant told Beuke that in mid-May 1982 he and Gecht went out in the van, looking for a girl. When they did not find a girl, they stopped to eat and drink beer. At 7 a.m. the defendant went to sleep in the rear of the van. He later heard noises and saw that the van was parked in a cemetery. Looking out of the van, he saw Gecht near a tombstone stabbing a white woman. The defendant then walked over to Gecht and told him to return to the van. Five minutes later, Gecht returned to the van, holding a knife and a severed breast.
The fourth victim was Shui Mak. She was last seen alive at 1 a.m. on May 29, 1982, when she left her brother’s car on Barrington Road. Her body was found several months later in a construction area in South Barrington, Illinois. The cause of her death was determined to be fractures to her skull and ribs.
According to the defendant, he was riding in the van with Gecht at 2 a.m. some time in late May 1982. After they spotted a woman at the side of the road, Gecht told the defendant to go to the rear of the van. The woman, who spoke with an Oriental accent, entered the van. Gecht drove for 15 or 20 minutes, then tapped twice on the floor. The defendant left the rear of the van with a knife and a roll of wire.
Gecht pulled the woman out of the van, punched her in the face and ribs, and dragged her to some bushes. The defendant held a wire around her neck while Gecht cut her breasts. Gecht then told the defendant to get a jagged-edged knife from the van. When the defendant returned with the knife, Gecht had his penis in the woman’s chest wounds. Gecht then took the knife from the defendant and used it to repeatedly cut the woman’s abdomen. Feeling nauseated, the defendant returned to the van. Gecht soon returned and they drove away together.
The fifth victim was Sandra Delaware. On August 27, 1982, her body was found under the Fullerton Avenue Bridge at the Chicago River. Her wrists and ankles were bound with shoelaces and a ligature was around her neck. An autopsy revealed that the cause of her death was ligature strangulation and an abdominal stab wound which penetrated her liver.
According to the defendant, he and Gecht were driving in the van on August 27, 1982, looking for a prostitute. When they were near North Avenue and the Chicago River, Gecht told the defendant to get into the rear of the van. A black woman entered the van and spoke with Gecht about sex. The van stopped and the defendant heard two taps. He left the van holding a knife and met Gecht at the front passenger door.
Gecht pulled the woman out of the van, removed her clothes, and handcuffed her while the defendant held her arms. Gecht then had vaginal intercourse with the woman while she performed an oral sex act on the defendant. Gecht asked the defendant if he was “having fun.” The defendant replied: “No.” Gecht then asked the defendant what he was going to do about it. The defendant then stabbed the woman twice in the chest with his pocket knife. Feeling nauseated, he returned to the van. Gecht then returned to the van with the handcuffs and the knife.
The sixth and seventh victims were Rafael Tirado and Alberto Rosario. They were both shot on October 6, 1982, while standing near the corner of Damen and Lemoyne in Chicago. Rosario was taken to the hospital and survived. Tirado, shot once in the head and once in the neck, died from these wounds.
According to the defendant, on October 6, 1982, the defendant was driving the van with Gecht near North Avenue and Damen Street, when they saw three men near a phone booth. Gecht told the defendant, who was driving, to slow down. Gecht then took a .38-caliber pistol and a rifle from the rear of the van and told the defendant to stop. Gecht then fired several shots with the pistol and the rifle and told the defendant to drive away.
The eighth victim was B.W. On the same day as the shooting of Tirado and Rosario, and shortly after it, Gecht told the defendant to get into the rear of the van. Gecht again picked up a woman. The defendant heard two taps and met Gecht at the passenger door. The woman was “high” and they removed her clothes. Under a bridge near some railroad tracks, Gecht cut off one of her breasts and placed his penis in the wound. The defendant took a jagged-edged knife from the van and gave it to Gecht. He then returned to the van. Ten minutes later, Gecht returned and they drove away.
In his second statement, given to Assistant State’s Attorney Beuke on November 8, 1982, the defendant contradicted his earlier assertions about the murders in several respects. As was stated earlier, he implicated Andrew Kokoraleis in the murder of Linda Sutton. He also stated that Kokoraleis accompanied Gecht and the defendant when Lorraine Borowski and Shui Mak were killed. The defendant also stated that it was Kokoraleis, and not Gecht, who was present when the unidentified woman was killed in August of 1981. Finally, according to this statement, it was Kokoraleis, and not Gecht, who shot Tirado and Rosario. Prior to the shooting, Kokoraleis, the defendant, and Gecht, had discussed “getting some niggers.” As in the defendant’s first statement, the defendant drove the van, but it was Kokoraleis who was the passenger, while Gecht followed the van in a car.
In a third statement, also given to Assistant State’s Attorney Beuke on November 8, 1982, the defendant admitted his participation in the killing of Rose Beck Davis.
On September 8, 1982, the body of Rose Beck Davis was found between two buildings on Lake Shore Drive in Chicago. A stocking was tied around her neck, and her breasts were slashed. She had multiple skull fractures. A four-inch piece of wood was removed from her vagina, which had been lacerated. The cause of death was strangulation.
The defendant stated to Beuke that he and Andrew Kokoraleis pulled the victim into a van driven by Gecht. She was taken to a courtway near the lakefront. While Gecht raped her and cut her chest with a small axe, the defendant held a stocking around her neck and strangled her. After she stopped breathing the defendant became nauseated and returned to the van.
R.S., a woman who had known the defendant for six or seven years, testified to the following incident. She saw the defendant filling a gasoline can with gas. She told him that she did not feel comfortable with him filling the can “because if something were to happen, he would be a sissy and run, and other people would suffer the consequences.” The defendant replied that he was not a “sissy” and that he had “killed somebody before.” He went on to say that he had killed a “couple of broads,” that he had “cut their tit off,” and that it was “very messy.”
The defendant presented the following evidence in mitigation.
The defendant’s mother, Mrs. J.G., gave birth to the defendant at age 16. She testified that the defendant’s father treated the defendant very poorly as a child. He ignored the defendant because the defendant was “slow.” Mrs. G. divorced the defendant’s father when the defendant was seven.
The defendant was made to repeat kindergarten because he was not mature enough to advance to the first grade. Mrs. G. described him as shy, withdrawn, and without friends. His grades in school were very poor. He preferred helping the janitor sweep the floor to attending classes.
E.P., a close friend of the defendant’s mother, testified that she had known the defendant since he was 10 years old: She described him as a shy, backward, pathetic child, who she always felt was being punished and “whipped” a lot. A.Z., the defendant’s classmate in the fourth through eighth grades, described the defendant as a “slow, weird, uncoordinated” kid, who did not stand up for himself, often “got beat up,” and cried a great deal.
One of the defendant’s teachers in seventh grade, Father George Jendrach, described the defendant as docile, cooperative, and extremely slow. Because of his poor grades, the defendant was .not accepted into the local Catholic or vocational high school.
The defendant’s younger sister, J.M., testified that she and the defendant were in the same level throughout grammar school. She described him as “very slow” in school. The other students often “picked on” him and made fun of him. She tutored him, helping him to graduate from eighth grade.
The defendant’s mother, Mrs. G., remarried when the defendant was 12. She described the defendant’s stepfather as a stern man, who nevertheless treated the defendant with compassion, but could not give him a father’s love. E.P. described the defendant’s stepfather as “a good man, but very, very strict.”
Robert Hecker, who had been the assistant principal at Fenger Public High School when the defendant was a freshman, testified that the defendant’s attendance was very poor. He failed all of his classes. At the start of his second year, despite counselling with his parents, the defendant “completely fell apart” and again passed no courses. He did not return to high school for his third year.
When the defendant was 18 he had an accident in the family car and was told by his stepfather to move out of the house. He then lived with his father for a while, and later with his grandmother, until she also told him to leave. He then moved from friend to friend, “making the rounds.”
W.R., who lived one house away from defendant’s parents, had known the defendant for 12 years. When the defendant lived at his parent’s home, he and R. walked their dogs together three times a week. R. described the defendant as “slow in intelligence” and courteous. When the defendant was 18, R. encouraged him to learn a trade.
The defendant attempted to work in his stepfather’s scrap iron business, but quit when the work proved too strenuous. He then worked at Burger King and Winchell’s Donuts, before finally taking a job with Robin Gecht, who was an electrician. He told others that he enjoyed working for Gecht because he was learning skills. When the defendant later told R. that he had gotten a job with an electrical contractor, R. congratulated him and told him to “stick with it.” The defendant also told his sister, J.M., about the job with Gecht. She congratulated him and testified that she felt good that he had found a job with a future. She told him to “get all he could” out of the job with Gecht.
After the defendant’s arrest, the defendant’s mother and sister both visited him at Stateville penitentiary. Ms. M. described him as “scared but trying to be comfortable.” She saw no difference in his personality since 1980; he was still “calm, friendly, weak, and slow.”
The defendant also offered the testimony of clinical psychologist Kent Mohr. In 1986 Mohr visited the defendant in jail and administered a series of diagnostic tests. Mohr testified that the defendant’s I.Q. was 76, which put the defendant in the seventh percentile of population. The defendant’s intellectual ability was “borderline defective.”
Mohr diagnosed the defendant as a “schizoid personality.” He had basic feelings of inadequacy and insecurity and related to people in a very inferior, withdrawn way. The defendant responded to his environment in a very impulsive manner, lacking the ability to weigh details and evaluate their relative importance. In new or unique situations the defendant would be immobilized or respond in a very immature way. He was likely to follow other people’s directions as to what to do. His was a basically passive personality, dependant on others. He did, however, have an underlying anger and a potential for explosiveness which could be dangerous.
The defendant also testified in his own behalf. He stated that he did not know beforehand that Gecht planned to murder Linda Sutton. According to the defendant, Gecht was supposed to drive the defendant to Chicago to pick up some tools and then drive the defendant back to Winchell’s Donuts to fix his car. Later that night, when Gecht took Sutton into the bushes and the defendant heard her moaning, he felt scared and did not know what to do. He admitted, however, that he did not call the police or an ambulance when he saw Sutton lying on the ground bleeding. He explained that he took the wire from the van and severed Sutton’s breast because Gecht told him to do it.
The defendant claimed that in the weeks following the murder of Sutton, he tried to avoid Gecht, who kept urging the defendant to go “driving around” with Gecht. After repeatedly refusing, the defendant finally agreed. On these excursions, he and Gecht would pick up prostitutes; many times Gecht would merely have sex with them.
During this period Gecht offered the defendant a job in Gecht’s electrical business. The defendant accepted because he wanted to learn a trade.
The defendant explained that he continued to associate with Gecht despite the killings because he wanted to keep his job and continue learning a trade. He enjoyed working although, because of the murders, he “knew he was in deep trouble.” At that time, the defendant was 20 years old and Gecht was 28 or 29. Admitting that he never did anything to stop the murders, the defendant claimed that he felt very guilty about his participation in them.
The defendant had been incarcerated at Stateville since 1984, where he worked repairing engines and cutting grass. He was visited by his family and a couple of friends and had no disciplinary problems.
The defendant makes the following claims of error with respect to his sentence: (1) that the prosecutor deprived the defendant of a fair sentencing hearing by cross-examining him about “devil worshipping,” in violation of a stipulation against such examination; (2) that the prosecutor deprived the defendant of a fair trial by statements in summation which: (a) referred to the victims’ families, (b) attempted to elicit sympathy for the victims, (c) appealed to the fears of the jurors, (d) argued that the defendant was racially prejudiced against blacks, Asians, and Hispanics, (e) attempted to dehumanize the defendant in the eyes of the jurors, (f) misstated the applicable burden of proof, and (g) speculated as to the personality traits and character of the defendant and Robin Gecht; (3) that the trial court erred by refusing an instruction tendered by the defendant which would have told the jury to consider as mitigating the hypothesis that the defendant’s criminal conduct was induced or facilitated by another; (4) that the trial court erred by instructing the jury that its decision about the death penalty should not be influenced by sympathy; (5) that the trial court erred by refusing to allow evidence of the mandatory alternative sentence of natural life imprisonment; (6) that the trial court erred by refusing to consider evidence that the Du Page County State’s Attorney applied the death penalty in an unconstitutionally arbitrary manner; (7) that the Illinois death penalty statute is unconstitutional because it gives Illinois State’s Attorneys unlimited and unguided discretion to choose which defendants among those convicted of capital murder will be subject to the death penalty; (8) that the Illinois death penalty is unconstitutional because, under its aegis, death penalties are imposed more frequently for the killings of whites than for the killings of blacks; (9) that the Illinois death penalty statute violates due process and equal protection because it fails to adequately narrow those persons eligible for death to a unique and cognizable group; (10) that the Illinois death penalty statute is unconstitutional because it does not contain adequate safeguards to prevent arbitrary or capricious imposition of death sentences; and (11) that the Illinois death penalty statute is unconstitutional because it limits the imposition of death to defendants who do not require special provisions or assistance.
The defendant first alleges a number of instances of prosecutorial misconduct, most of them in summation. The vast majority of these errors were not the subject of contemporaneous objections, although most of them, including all of the alleged summation errors, were raised in the defendant’s motion for a new sentencing hearing. As will be shown, some, but not all, of the prosecutorial statements challenged are instances of genuine error. We need not reach the argument that these errors have been waived, however, or if they are “plain error,” because we find that they did not, either singly or cumulatively, so infect the sentencing hearing with unfairness as to make the resulting death sentence a denial of due process. See Darden v. Wainwright (1986), 477 U.S. 168, 91 L. Ed. 2d 144, 106 S. Ct. 2464.
The defendant first argues that the prosecutor was guilty of misconduct when he violated a stipulation agreed upon by the prosecution and the defense prior to trial. Prior to the commencement of the death penalty hearing, the defendant had moved in limine to bar evidence of his alleged membership with Robin Gecht and others in a “religious cult” in which ritualistic ceremonies were performed with amputated human breasts in Gecht’s attic. The prosecutor agreed to the motion and stipulated that the State would offer no such evidence. During the sentencing hearing, the defendant testified that he felt remorse during and after the killings and that he would eventually have gone to the police. On cross-examination the prosecutor asked the defendant, without objection, whether he had ever taken any of the severed breasts up to Gecht’s attic and whether he had ever been involved in “Devil Worshipping.” The defendant answered “no” to both questions.
While conceding that evidence of devil worship might have been relevant to the second phase of the sentencing hearing, the defendant contends that the prosecutor’s stipulation precluded any questioning about this subject. In response, the prosecution contends that the defendant opened the door to this line of questioning by claiming that he would have gone to the police.
We agree with the defendant that this reference constituted prosecutorial misconduct. The mere fact that the defendant claimed he would have eventually informed the police did not justify the violation by the prosecution of its own agreement not to raise the issue of devil worship. However, we note the prosecution’s argument that this issue was waived by the defendant’s failure to raise it at any time prior to this appeal.
The defendant next argues that the prosecutor in his summation improperly dwelled on the victims and their families. The prosecutor stated on summation:
“Eight human beings — Dan said it. I won’t say it again, viciously and randomly selected. Lives of their own. Walking down the street. Plucked away from their families, never to be seen again. ***
And (the defendant’s mother) also told you about jail, and I think you got a little telling insight into it. She visits him at jail. Jail is just fine. He watches T.V. He reads magazines. He’s got the run of the place, a nice cell mate, calls his mother everyday. He likes jail. Jail is okay with him.
Do you think Lori Borowski would like to watch T.V. today? Do you think Shui Mak would like to read a few magazines today? Do you think their mothers would like to call them on the phone everyday?
They want you to send him back to the country club. Send him back to jail where he’s happy. What do you think the families would think of that? *** There are so many victims in this case, there is a tendency to forget they were people, and there is a tendency to forget they had lives and they had dreams and they had hopes and they had families. And as Dan said before, they didn’t do anything to deserve this. Nothing.”
In a related series of remarks, the prosecutor repeatedly referred to victims:
“You heard a lot about this case, poor Ed, poor Ed’s rights. He is sitting in the little room with a little window.
What about Lori Borowski’s rights? What about Rose Beck Davises’ rights. What about Sandra Delaware’s rights. Those individuals have rights too, and as jurors, we ask you to consider their rights.
What about their right to have a future, to have families, to get married and have kids? They had a right to those lives on that day, and he gave them the death sentence every time he went out with his buddies.”
We agree with the defendant that these statements were improper. Under Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, references to the crime’s impact upon the victim and the victim’s family are prejudicial because they tend to distract the jury from its proper focus upon the character of the defendant and the circumstances of the crime.
However, these statements do not rise to the level of error which is so prejudicial as to affect the overall fairness of the sentencing hearing. The prosecution’s references to the victims and to the families of the victims were general and vague. Unlike the situation in People v. Simms (1988), 121 Ill. 2d 259, where the prosecution presented copious evidence of bereavement, here no family member actually testified.
The defendant next argues error as to a series of remarks which supposedly “appealed to the fears of the jurors.” In one remarkable passage, the prosecutor asked the jurors to put themselves “in the shoes” of the victims and to imagine their feelings:
“Think of it. You, any of us walking down a street, being grabbed by one, two or three individuals like this man, who have one intent, to kill somebody, to kill you. ***
Please attempt to place yourselves in the shoes of Linda Sutton, in the shoes of Lori Borowski, in the shoes of Sandra Delaware, in the shoes of Rose Beck Davis, in the shoes of Shui Mak, in the shoes of Rafael Tirado, in the shoes of B.W., and into the shoes of these other two unknown victims that we still haven’t found.
Place yourself in their shoes and think what they must have been thinking about at the time they were murdered. ***
Place yourself in the shoes of these individuals at the time this started occurring to them.
What went through their minds when they were shot, stabbed, mutilated, handcuffed.”
The State does not attempt to defend these remarks, and we agree with the defendant that they were highly improper. The State was free to argue, as it did, that the incredibly cold-blooded and horrific way in which these crimes were planned and executed made the defendant a fit subject for retribution. The State was not free, however, to invite the jurors to enter into some sort of empathetic identification with the victims. We agree with the State, however, that these remarks also were not so prejudicial as to deprive the defendant of a fair sentencing hearing.
Along the same lines, the defendant also cites the argument that “the people in your community have a right to live free from the fear of guys like Edward Spreitzer.” An objection to this statement was overruled, and it was raised in the defendant’s post-trial motion. Had this remark been an attempt to suggest, like the similar remarks in People v. Szabo (1983), 94 Ill. 2d 327, that the jury was to speculate on the possibility that Spreitzer might eventually be freed, it would have been clearly improper. However, the remark could also be interpreted as a proper invocation of the State’s legitimate interest in deterring “guys like” the defendant from committing similar crimes. We therefore do not find that it deprived the defendant of a fair sentencing hearing.
The defendant next argues that the prosecutor erred by arguing to the jury that the defendant was racially biased against blacks, Asians, and Hispanics. We do not agree. The prosecutor’s remarks were fairly based upon the evidence, particularly the defendant’s admission that the shootings of Tirado and Rosario were motivated by the defendant’s desire to “get some niggers.”
The defendant next argues that he was prejudiced by the prosecutor’s remark that he “should not be considered human,” and that to call him “an animal or names would be an insult to the animals, and I won’t do that.” This court has repeatedly disapproved of similar remarks (see People v. Tiller (1982), 94 Ill. 2d 303; People v. Elder (1962), 25 Ill. 2d 612), but has generally declined to reverse without some indication that they have resulted in substantial prejudice to the accused. We do not find any substantial prejudice to the accused in this instance.
The defendant next argues, and the prosecutor concedes, that it was error for the prosecutor to claim in summation that the defendant had the burden to prove mitigating factors sufficient to preclude death, and that if they found no mitigating factors, the defendant should be sentenced to death. Since, however, the jury was properly instructed as to burden of proof, we decline to reverse on this ground.
Lastly, the defendant argues that he was prejudiced by the prosecutor’s comments regarding the intellectual and moral qualities of Robin Gecht. In response to the defendant’s argument that Spreitzer was the stupid and cowardly dupe of Gecht, the prosecutor responded that Gecht was also stupid and cowardly. We believe that this comment was a fair inference from the evidence in the case, and we see no support for the defendant’s contention that the jury could have been led to believe that the prosecutor was basing his comments upon some private information about Gecht which had not been introduced into evidence.
The defendant next argues that the trial court erred by refusing to instruct the jury that nonstatutory mitigating factors could include the fact that “the Defendant’s criminal conduct was induced or facilitated by someone other than the Defendant.” Instead the trial court instructed the jury:
“Mitigating factors are any facts or circumstances that provide reasons for imposing a sentence less than the death penalty. Mitigating factors include that: the defendant has no significant history of prior criminal activity; or the defendant was not personally present during the commission of the act or acts causing death; or the defendant may be rehabilitated or restored to useful citizenship; or any other facts or circumstances that provide reasons for imposing less than the most severe sentence.” (Emphasis added.)
The defendant argues, on the basis of People v. Davis (1983), 95 Ill. 2d 1, that it is improper to refuse such an instruction on the sole ground that the mitigating factor is not listed as mitigating in the death penalty statute. The defendant’s argument mistakes dictum in Davis for holding. While the court in Davis stated its belief that “the trial judge’s reason for refusing the instruction was improper” (95 Ill. 2d at 49), it went on to hold that where “the instruction requires the jury to consider all mitigating factors, the dictates of Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954, are satisfied.” (95 Ill. 2d at 50.) In fact this court has repeatedly held that a defendant’s request for an instruction on nonstatutory mitigation may properly be refused so long as the court charges the jury that they are to consider “any other facts or circumstances that provide reasons for imposing less than [the most severe sentence].” (People v. Sanchez (1986), 115 Ill. 2d 238, 269-70; People v. Stewart (1984), 105 Ill. 2d 22, 70; People v. Free (1983), 94 Ill. 2d 419-20.) The defendant, without making any specific arguments, asks us to reconsider these holdings.
This we decline to do. While nothing we have previously said precludes a trial court from instructing on specific examples of nonstatutory mitigation, a requirement that the trial court charge every possible nonstatutory mitigating factor would be both unwieldy and unworkable. Under the Federal Constitution, mitigating factors include “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Lockett v. Ohio (1978), 438 U.S. 586, 604, 57 L. Ed. 2d 973, 990, 98 S. Ct. 2954, 2964-65.) In other words, any circumstance which suggests that the death penalty would not serve the community’s interest in deterrence or retribution is potentially mitigating. While the number of such possible mitigating factors is not infinite, it is certainly extremely large. Any listing of such factors which is presented to the jury will always be open to the objections that it is incomplete and that it will tend to mislead the jury into thinking that they must limit themselves to the factors actually listed. Rather than requiring court and counsel to present the jury with a detailed laundry list of nonstatutory mitigation, we think it better to allow the court to instruct only on specific instances of statutory mitigation, while instructing the jury that they may consider any other nonstatutory •mitigating factor.
The defendant next argues that the trial court erred by instructing the jury that “[njeither sympathy nor prejudice should influence you.” This instruction has been upheld in many cases. (See People v. Crews (1988), 122 Ill. 2d 266; People v. Emerson (1987), 122 Ill. 2d 411; People v. Johnson (1987), 119 Ill. 2d 119, 150; People v. Lego (1987), 116 Ill. 2d 323, 350; People v. Del Vecchio (1985), 105 Ill. 2d 414, 445; People v. Stewart (1984), 104 Ill. 2d 463, 494.) While acknowledging these holdings, the defendant argues that they have been invalidated by California v. Brown (1987), 479 U.S. 538, 93 L. Ed. 2d 934, 107 S. Ct. 837. In Brown, the United States Supreme Court upheld an instruction which told the jurors that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” The Court held that such an instruction was not likely, for two reasons, to divert the jury from its constitutional duty to consider any sympathetic aspect of the defendant’s character or record.
The Court first noted that the defendant “ignores the crucial fact that the jury was instructed to avoid basing its decision on mere sympathy. *** We think a reasonable juror would *** understand the instruction not to rely on ‘mere sympathy’ as a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase.” (Emphasis in original.) (Brown, 479 U.S. at 542, 93 L. Ed. 2d at 940, 107 S. Ct. at 840.) Second, the Court noted that a reasonable juror was unlikely to “perversely single out the word ‘sympathy’ from the other nouns which accompany it in the instruction: conjecture, passion, prejudice, public opinion, and public feeling.” Brown, 479 U.S. at 542-43, 93 L. Ed. 2d at 941,107 S. Ct. at 840.
The defendant plausibly argues that the challenged instruction shares with the Brown instruction neither of these saving graces: the jury is not cautioned to avoid “mere” sympathy, and the word sympathy is not part of a long catalogue of the kind of factors which would improperly influence a juror’s decision to vote for or against the death penalty. (For a similar argument see Johnson v. Oklahoma (1987), 484 U.S. 878, 98 L. Ed. 2d 167, 108 S. Ct. 35 (Marshall, J., dissenting from denial of certiorari, joined by Brennan, J.).) However, the defendant fails to note the full text of the instruction: “Neither sympathy nor prejudice should influence you. You should not be influenced by any person’s race, color, religion, or national ancestry.” (Illinois Pattern Jury Instructions, Criminal, No. 1.01(5) (2d ed. 1981).) We believe that the placement of the words “sympathy and prejudice” in close proximity to the obviously improper factors of race, color, and religion would sufficiently alert a reasonable juror that he is being asked only to avoid knee-jerk, “gut” reactions to aggravating or mitigating evidence and is not precluded from a “reasoned moral response to the defendant’s background, character, and crime.” (Emphasis in original.) (Brown, 479 U.S. at 545, 93 L. Ed. 2d at 942, 107 S. Ct. at 841 (O’Connor, J., concurring).) We therefore decline, in the absence of action by the United States Supreme Court, to overrule our prior decisions in this matter.
The defendant next argues that the trial court’s refusal to allow evidence: (1) that the defendant was already serving four natural life sentences, and (2) that the defendant, if spared the death penalty, would be automatically Sentenced to imprisonment for his natural life, combined with the failure of defendant’s counsel to offer an instruction on the mandatory alternative, deprived the defendant of a fair sentencing hearing. The defendant also points to the effect of remarks by the prosecutor which suggested that the defendant was still dangerous and that the death penalty was necessary to safeguard the community from his future ravages. At the time of the sentencing hearing, it was the law of Illinois that the trial court was not required to instruct a jury on the alternative mandatory sentence of natural life. (People v. Albanese (1984), 102 Ill. 2d 54, 81; People v. Stewart (1984), 105 Ill. 2d 22, 70-71.) We have now held that such an instruction is required. (People v. Gacho (1988), 122 Ill. 2d 221, 260.) However, since the Gacho rule applies only prospectively to sentencing hearings conducted after the date of the decision in this case, Gacho is inapplicable, and the trial court’s failure to permit evidence of sentencing alternatives was not error. Likewise, the failure of defense counsel to tender such an instruction was not incompetent, for the obvious reason that the trial court could properly have refused such an instruction prior to our decision in Gacho.
The defendant next argues the trial court erred by refusing to allow the defendant to present evidence that the Du Page County State’s Attorney arbitrarily and capriciously requested a death penalty hearing in his case. More specifically the defendant claims that if allowed the opportunity he would have proved that at the time of the offense for which the State was seeking death the policy of the Du Page County State’s Attorney’s office had been to seek a death penalty hearing in some but not all death-eligible cases; but that by the time the State requested a death penalty hearing that office had changed its policy and required prosecutors to request death hearings in every death-eligible case. This contention is similar to the claims of variance in policy among different State’s Attorney’s offices which we have already rejected (see People v. Stewart (1988), 121 Ill. 2d 93), and we see no need to reach a different result here.
The defendant next argues that our death penalty statute is unconstitutional because it gives prosecutors unlimited discretion to seek the death penalty for those defendants convicted of capital murder. This, of course, is the argument rejected by a four-member majority of this court in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, and by a six-member majority in People v. Lewis (1981), 88 Ill. 2d 129. The defendant’s only basis for seeking to overturn these precedents is the fact that a Federal district court judge has recently reviewed a habeas petition which raises a similar challenge and, while granting the petition on another ground, has expressed doubts about the facial constitutionality of our statute. (United States ex rel. Lewis v. Lane (C.D. Ill. 1987), 656 F. Supp. 181, aff'd (7th Cir. 1987), 832 F.2d 1446.) His doubts parallel the reasoning put forward by the three dissenters in Cousins (77 Ill. 2d at 544-61 (Goldenhersh, C.J., and Ryan and Clark, JJ., dissenting)), and by the single dissenter in Lewis (88 Ill. 2d at 179 (Simon, J., dissenting)). Noting that two members of the Cousins minority later expressed the hope that a Federal court would review our statute (see Lewis, 88 Ill. 2d at 166, 167 (Goldenhersh, C.J., and Ryan and Clark, JJ., concurring)), the defendant argues that the dicta expressed in Lewis v. Lane should prompt us to reexamine our own holdings in Lewis and Cousins. We do not agree.
While we welcome Federal review of our statute, we do not believe that opinions expressed by lower Federal court judges, standing alone, are sufficient to support reconsideration of our holdings in Lewis and Cousins. It is clear that the challenge to the constitutionality of our statute raised in those cases was neither frivolous nor implausible. It is therefore not surprising that a Federal judge should entertain “grave doubts” as to our statute’s constitutionality. But these doubts cannot by themselves dictate the overruling of Cousins and Lewis. Federal court judges are no more or less competent to interpret the Federal Constitution than State court judges. Absent a binding decision by the United States Supreme Court, mere controversy over the validity of our prior holdings is not a sufficient ground to break with stare decisis and overrule them.
The defendant next argues that the application of our death penalty statute is unconstitutional because, under its aegis, killers of whites are six times more likely to receive the death penalty than killers of blacks. This argument has now been rejected, both by the United States Supreme Court (McCleskey v. Kemp (1987), 481 U.S. 279, 95 L. Ed. 2d 262, 107 S. Ct. 1756), and by our court (People v. Davis (1987), 119 Ill. 2d 61; see also People v. Orange (1988), 121 Ill. 2d 364; People v. Stewart (1988), 121 Ill. 2d 93). The authority cited by the defendant for this argument, a study by Professors Samuel Gross and Robert Mauro (see Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing & Homicide Victimization, 37 Stan. L. Rev. 27 (1984)) has already been discussed in Davis, and there is no need to repeat that discussion here. We therefore find no merit in this argument.
The defendant next argues that the Illinois death penalty statute is unconstitutional because it fails adequately to distinguish between persons eligible for the death penalty and persons eligible for a sentence of life imprisonment under the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1). Since this case was briefed, this argument too has been rejected (see People v. Emerson (1987), 122 Ill. 2d 411; People v. Whitehead (1987), 116 Ill. 2d 425), and we see no need to reconsider it here.
The defendant next raises a number of claims with respect to the facial constitutionality of our death penalty statute. All of these claims have been reviewed, and rejected, in previous cases. Our court has previously held that our death statute is not rendered unconstitutional because of: the lack of formal comparative proportionality review (People v. Brownell (1980), 79 Ill. 2d 508); the absence of a requirement for written findings by the sentencer (People v. Gaines (1981), 88 Ill. 2d 342); inadequate pretrial notice of aggravating factors (People v. Davis (1983), 95 Ill. 2d 1); the absence of a requirement that the jury explicitly find death to be the appropriate sentence (People v. Free (1983), 94 Ill. 2d 378); and statutory language which allegedly allows the sentencer to place the burden of proof upon the defendant (People v. Del Vecchio (1985), 105 Ill. 2d 414). The defendant’s sole ground for urging reconsideration appears to be that a single justice of the United States Supreme Court, with whom a second justice concurs, has dissented from denials of certiorari in a number of our cases, and has stated in those dissents that the Illinois statute is unconstitutional. (See Albanese v. Illinois (1985), 471 U.S. 1044, 1044-45, 85 L. Ed. 2d 335, 335-36, 105 S. Ct. 2061, 2061-62 (Marshall, J., dissenting from denial of certiorari, joined by Brennan, J.); Gacy v. Illinois (1985), 470 U.S. 1037, 1037-38, 84 L. Ed. 2d 799, 799, 105 S. Ct. 1410, 1410-11 (Marshall, J., dissenting from denial of certiorari, joined by Brennan, J.); Eddmonds v. Illinois (1984), 469 U.S. 894, 895-98, 83 L. Ed. 2d 207, 208-10, 105 S. Ct. 271, 271-74 (Marshall, J., dissenting from denial of certiorari, joined by Brennan, J.); Jones v. Illinois (1983), 464 U.S. 920, 920-21, 78 L. Ed. 2d 264, 264-65, 104 S. Ct. 287, 287-88 (Marshall, J., dissenting from denial of certiorari, joined by Brennan, J.).) While opinions which express the views of two Supreme Court justices may have some persuasive value, they are not, without more, an adequate ground for the reconsideration of binding precedent.
The defendant’s penultimate argument is that the Illinois death penalty statute is unconstitutional because it exempts from the death penalty persons who require special provisions or assistance in order to be fit to stand trial. (See Ill. Rev. Stat. 1985, ch. 38, pars. 104—22, 104—26(b).) This argument has been rejected many times (see, e.g., People v. Ashford (1988), 121 Ill. 2d 55; People v. Emerson (1987), 122 Ill. 2d 411; People v. Whitehead (1987), 116 Ill. 2d 425, 460-62; People v. Johnson (1986), 114 Ill. 2d 170, 208; People v. Stewart (1984), 104 Ill. 2d 463, 499-502), and we see no need to reconsider it here.
Lastly, the defendant argues, and the State concedes, that the defendant was improperly sentenced to an extended term of 60 years’ imprisonment for aggravated kidnapping. Aggravated kidnapping (Ill. Rev; Stat. 1985, ch. 38, par. 10—2(a)(3)) is, in fact, a Class I felony for which the maximum extended term is not 60 years, but 30 years. Ill. Rev. Stat. 1985, ch. 38, pars. 10—2(b)(2), 1005—8—2(a)(3).
For the foregoing reasons, the defendant’s convictions and his sentence of death are affirmed, and the defendant’s sentence of 60 years’ imprisonment for aggravated kidnapping is reduced to 30 years. The clerk of this court is directed to set an order setting Tuesday, September 13, 1988, as the date on which the sentence of death entered in the circuit court is to be implemented. The defendant shall be executed by lethal injection in the manner provided by section 119 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 119 — 5). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution wherein the defendant is confined.
Judgment affirmed as modified.
(No. 69629.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EDWARD SPREITZER, Appellant.
Opinion filed March 28, 1991.
Rehearing denied June 3, 1991.
Charles M. Schiedel, Deputy Defender, of Springfield, and Charles W. Hoffman, Assistant Defender, of Chicago, both of the Office of the State Appellate Defender, for appellant.
Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Thomas L. Ciecko, Assistant Attorneys General, of Chicago, of counsel), for the People.
[OPINION BY JUSTICE MORAN type=majority]
JUSTICE MORAN
delivered the opinion of the court:
Defendant, Edward Spreitzer, was indicted, along with codefendants Andrew and Thomas Kokoraleis, in Du Page County for the aggravated kidnapping and murder of Linda Sutton. His case was severed from his codefendants, and after the first phase of his trial he was convicted, after a bench trial, of both charges. A jury was empaneled, at the defendant’s request, at the sentencing phase of his trial. The jury found that the defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude the imposition of a sentence of death. The circuit court then imposed a sentence of death on the murder charge and a 60-year sentence for aggravated kidnapping.
On direct appeal, this court affirmed the defendant’s convictions and death sentence, but reduced the term of imprisonment for aggravated kidnapping to 30 years. (People v. Spreitzer (1988), 123 Ill. 2d 1.) Thereafter the United States Supreme Court denied review of defendant’s direct appeal. (Spreitzer v. Illinois (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) He then instituted the present action under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) by filing a pro se petition for post-conviction relief in the circuit court of Du Page County. The State moved to dismiss the petition and, without an evidentiary hearing, the petition was dismissed and direct appeal to this court followed (107 Ill. 2d R. 651).
The defendant raises three issues: (1) the trial court erred in dismissing his post-conviction petition without a hearing on allegations that he had been deprived of effective assistance of counsel during a pretrial motion to quash his arrest; (2) he had been deprived of effective assistance by post-conviction counsel; and (3) he was deprived of equal protection of the law and his right to a fair and reliable death penalty determination because the trial judge failed to instruct the sentencing jury of the mandatory alternative sentence of natural life imprisonment.
The facts of this case are adequately set forth in this court’s opinion on the defendant’s direct appeal (People v. Spreitzer (1988), 123 Ill. 2d 1), and will be repeated here only where necessary. Following this court’s affirmance of defendant’s death sentence, he filed a pro se petition for post-conviction relief and the trial court appointed post-conviction counsel who filed an amended petition. The amended petition contained allegations of constitutional error, which, for the purposes of this appeal, included the assertions that the defendant had been deprived of effective assistance of counsel at his pretrial hearing to quash his arrest and at his death sentencing hearing, and that he had been denied a fair sentencing hearing by the failure of the trial court to instruct the jury that the mandatory alternative sentence to death was life imprisonment without parole.
The State subsequently filed a motion to dismiss the petition. The trial court heard oral arguments and later granted the State’s motion. Following the dismissal of the amended petition, the defendant appealed directly to this court (107 Ill. 2d R. 651).
Defendant initially contends that the trial court erred in dismissing, without an evidentiary hearing, his claim that he was deprived of his right to the effective assistance of counsel at the pretrial hearing on his motion to quash his arrest. He claims that he was prejudiced by his attorney’s failure to investigate, locate, or present the testimony of witnesses who would have established the illegality of his arrest in this cause.
Prior to defendant’s trial, his attorney filed a pretrial motion to quash his November 5, 1982, arrest on the grounds that the police lacked probable cause at the time defendant was taken into custody. The motion also sought to suppress statements that the defendant had made to the police as fruit of the unlawful arrest. The issue was whether the defendant was arrested by the police before or after he had made the incriminating statement which provided the probable cause for his arrest.
In support of his motion to quash, the defendant was the only witness called to testify. He testified as follows: that at 10:30 p.m., on November 5, 1982, he drove up to the rear of his mother’s house in Chicago, and parked near her garage; that as he got out of his car, he was approached by Detective Thomas Flynn and his partner, Detective Dickonson; that the officers asked him his name and stated that they wanted to “bring him in” to answer some questions; that the policemen then pushed him against the car, patted him down and handcuffed him behind his back; that he was then placed in the back seat of the officers’ unmarked squad car and driven to a police station; and that for the next five days, he was held in custody and questioned repeatedly.
In opposition to defendant’s motion to quash, the prosecution called Detective Flynn, who testified as follows: that he had stopped the defendant on October 20, 1982, in a van that matched the description of a vehicle used in the mutilation assault of two prostitutes in Chicago; that these incidents were similar to the mutilation murder of a prostitute in Du Page County that was being investigated by Du Page County Detective Warren Wilkosz; that the van belonged to defendant’s employer, Robin Gecht; that the defendant, Gecht and two others who had access to the van voluntarily went to the police station, where they were photographed for the purposes of a photo lineup to be shown to one of the assaulted victims; and that later that day, the defendant voluntarily appeared in a lineup in the victim’s hospital room, after which he was allowed to leave.
Detective Wilkosz testified that he spoke with the defendant six days later, on October 26, and that the defendant said that he would be willing to take a polygraph examination. Wilkosz also stated that he again spoke with the defendant on November 5, 1982, and he agreed to meet him in Chicago at 4 p.m. that day to take the polygraph exam.
Detective Flynn further testified as follows: that when the defendant failed to show up on November 5 for the examination, he and his partner went out looking for him; that at 7:45 p.m. he drove to defendant’s mother’s house, where he found the defendant; that the defendant explained that he had gotten tied up working on his car, but would still take the polygraph examination; that the defendant then voluntarily accompanied him to a police station to take the exam at 8 p.m.; that the defendant was neither handcuffed nor under arrest when they left his mother’s house; that after the polygraph examination, the defendant voluntarily accompanied him to another police station for further questioning; and that during the later questioning, the defendant admitted his involvement in the unsolved homicides and was placed under arrest. After hearing the evidence, the trial court then denied the defendant’s motion to quash, holding that the defendant was not arrested until after he had made incriminating statements to the police which provided the probable cause for his arrest.
In his amended post-conviction petition, the defendant claimed that, prior to the hearing on his motion to quash, he told counsel that neighbors of his mother had seen the “arrest,” and had seen him handcuffed when he was at his mother’s house. He also claimed that his pretrial counsel never attempted to identify these neighbors and interview them to determine whether they would corroborate his testimony that he was arrested and handcuffed at his mother’s house. In support of the allegations that there were witnesses to his “arrest,” he attached an unsworn statement of M.R., who lived two houses away from defendant’s mother. In her unsworn statement (written by post-conviction counsel’s investigator), Mrs. R. stated:
“I was in the living room window which faces South looking out at the street. It was early afternoon, the weather was clear and sunny. I saw Edward Spreitzer standing in the street handcuffed to the driver side door post of a police car parked in front of his house. He was alone, no police were in the area that I could observe. He appeared to be calm and uninjured from my view which is two houses West of his.
I watched him for approximately five minutes, then left the window. The last I saw of him was as I stated above.
/S/ M.R. 7-25-89”
At the hearing on his post-conviction petition, the defendant argued that pretrial counsel’s failure to investigate and locate R. prevented the trial court from hearing testimony that would corroborate his version of what occurred on November 5, 1982, and therefore deprived him of effective assistance of counsel. In response, the State argued that the statement was vague, ambiguous and contradicted by the record. Thus, the State claimed that there may have been good reason not to call R. as a witness. The trial court held that R.’s statement did not provide a sufficient basis to support the defendant’s allegations that he had been denied effective assistance of counsel.
“In order to prevail under the [Post-Conviction Hearing] Act, the defendant must establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois.” (People v. Caballero (1989), 126 Ill. 2d 248, 258-59.) There is no entitlement to an evidentiary hearing on a post-conviction petition unless the allegations of a defendant are supported by the trial record, accompanying affidavits, and make a substantial showing that a defendant’s rights have been violated. People v. Gaines (1984), 105 Ilol. 2d 79, 91-92.
A defense counsel’s representation is deemed to be constitutionally defective when it is shown: (1) “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment^] *** [and (2)] that the deficient performance prejudiced the defense.” Strickland, v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,104 S. Ct. 2052, 2064.
This court has stated:
“The standard for assessing claimed deficiencies in an attorney’s performance is that of ‘reasonably effective assistance’ which is within the range of ‘competence demanded of attorneys in criminal cases.’ The standard is one of objective reasonableness, under ‘prevailing professional norms.’ [Citation.] To establish a deficiency, the defendant must overcome the strong presumption that the challenged action or lack of action might be the product of ‘ “sound trial strategy.” ’ ” Caballero, 126 Ill. 2d at 260.
Even if a defendant can show a deficiency of counsel, he or she must still demonstrate prejudice. A defendant must show that the conduct of his counsel fell below the prevailing professional norms and must also show that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.) The Court additionally noted that an ineffectiveness claim can often be disposed of upon a showing that a defendant suffered no prejudice from the claimed errors without deciding whether the errors constituted constitutionally ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699,104 S. Ct. at 2069.
Defendant claims that he was substantially prejudiced by the lack of testimony of witnesses, such as his mother’s neighbor M.R., at the hearing on his motion to quash arrest. In fact, he argues that if R. actually had seen him in handcuffs, his arrest would have been quashed and his incriminating statements would have been suppressed, potentially altering the outcome of his subsequent trial and sentencing hearing.
M.R.’s statement is not persuasive in showing prejudice to the defendant. The statement is inconsistent with the defendant’s testimony at the motion to quash arrest, and does not corroborate his version of the “arrest.” R. stated that she saw the “arrest” in the afternoon, while the defendant testified that it took place at 10:30 p.m.. R. also stated that she saw the defendant handcuffed to a police car in the street, while he testified that he was handcuffed in the alley and taken away in an unmarked car. Finally, she stated that she watched the defendant for five minutes, while he stated that he was taken away immediately. Defendant argues that the deficiencies in R.’s testimony go towards her credibility, and can be attributed to the fact that it was made almost seven years after the “arrest”; thus a hearing is necessary to determine her credibility. The defendant argues that the delay in obtaining R.’s statement is a result of his trial counsel’s incompetence, and that the statement would have been clearer, and more consistent with his testimony, if it had been taken earlier.
Defendant further argues that an evidentiary hearing is necessary to determine whether defense counsel’s failure to call witnesses at the hearing on the motion to quash his arrest was made as a “tactical” decision, or as a result of inadequate investigation. However, the defendant virtually ignores the second prong of the Strickland test, which requires that the defendant show prejudice in order to obtain relief on an ineffectiveness claim. It is the opinion of this court that, regardless of whether or not defense counsel was ineffective in not investigating the witness, the statement of M.R. does not provide the probability of doubt that could lead to a retrial. Since the defendant cannot show that he was prejudiced by defense counsel’s alleged error, it was proper for the trial court to dismiss this issue without an evidentiary hearing.
The defendant also argues that he was deprived of the effective assistance of post-conviction counsel. He claims that his post-conviction attorney should have provided evidentiary support to his petition so that it could withstand a motion to dismiss. According to the defendant, post-conviction counsel was inadequate because he failed to give substance to the following allegations with specific evidentiary facts sufficient to grant relief. These allegations are that he had been deprived of effective assistance of counsel: (1) at the hearing on his motion to suppress statements; (2) at his death penalty hearing, by his attorney’s failure to present mitigating evidence of his psychiatric and neurological condition; (3) at his death penalty hearing, by the failure of his attorney to develop evidence of his mental retardation; (4) at his death penalty hearing, by the failure of his attorney to present mitigating evidence of his good behavior while incarcerated prior to his trial; and (5) that he was generally deprived of effective assistance of counsel throughout his trial and death penalty hearings.
According to Supreme Court Rule 651, an attorney appointed to represent an indigent person must consult personally, or by mail, with the defendant, examine the trial record and amend the post-conviction petition if necessary to adequately present any legal claims. (107 Ill. 2d R. 651(c); see also People v. Slaughter (1968), 39 Ill. 2d 278, 285.) However, there is no requirement that post-conviction counsel must amend a defendant’s pro se petition. (People v. Bowman (1973), 55 Ill. 2d 138, 140.) This court has additionally held:
“Where there is not a showing that sufficient facts or evidence exists, inadequate representation certainly will not be found because of an attorney’s failure to amend a petition or, when amended, failing to make the petition’s allegations factually sufficient to require the granting of relief.” People v. Stovall (1970), 47 Ill. 2d 42, 46.
The record in this case shows that defendant’s post-conviction counsel consulted with him, examined the record and conducted an investigation. The trial court even remarked:
“I want to express thanks to both sides, especially Mr. Ekl [defendant’s post-conviction counsel], for reviewing this matter. It is a very important case. He has done an excellent job on this matter.”
Furthermore, post-conviction counsel did argue all of the points raised in the pro se and amended petitions to the trial court. Despite post-conviction counsel’s vigorous argument, at the close of the hearing the trial court held:
“Count II is likewise inadequate to show ineffectiveness of counsel.
The appeal by the Defendant/Petitioner fully covers the sentencing procedure as it was applied to the Defendant/Petitioner, including a review of the various witnesses testifying on the Defendant’s behalf, including the Defendant.
Count III, regarding ineffective counsel on motion to suppress, was also covered in the [defendant’s direct] appeal, including the mental status of the Defendant.
Count IV again refers to trial counsel and mitigating evidence at sentencing and this was covered on [the defendant’s direct] appeal.
Count V refers to Defendant’s mental status and one Kent Mohr, a clinical psychologist. Again, this was referred to in the [defendant’s direct] appeal and fully covered.
Count VI refers, again, to Defendant’s mental status and was referred to specifically in the Illinois Supreme Court opinion [of the defendant’s direct appeal].”
The reasons for the trial court’s dismissal of the aforementioned counts of the post-conviction petition were res judicata and waiver. The petition was not dismissed due to a failure to support any of the claims of ineffectiveness of counsel with specific facts. An additional investigation, or addition of supporting documents to the record, would have been irrelevant to the issue of whether or not the allegations in the petition were res judicata or waived. See, e.g., People v. Wilcoxen (1970), 45 Ill. 2d 365 (at a post-conviction hearing, counsel ably argued defendant’s claims, despite not amending the post-conviction petition, and, thus, was effective).
Defendant cites no evidence that post-conviction counsel could have found on the questions of waiver and res judicata; thus any evidence that could have been provided to support the ineffectiveness claim is simply not relevant and cannot be the basis of an ineffectiveness claim. (See, e.g., People v. Gendron (1969), 41 Ill. 2d 518, 520.) Since the defendant could not show that he was prejudiced in any way by his post-conviction attorney’s conduct, his ineffectiveness-of-counsel claim fails.
Finally the defendant argues that he was deprived of equal protection of the law and his right to a reliable death penalty hearing as a result of the trial judge’s failure to instruct the sentencing jury of the mandatory alternative sentence of natural life imprisonment. This point was raised and discussed on the defendant’s direct appeal:
“At the time of the sentencing hearing, it was the law of Illinois that the trial court was not required to instruct a jury on the alternative mandatory sentence of natural life. [Citations.] We have now held that such an instruction is required. (People v. Gacho (1988), 122 Ill. 2d 221, 260.) However, since the Gacho rule applies only prospectively to sentencing hearings conducted after the date of the decision in this case, Gacho is inapplicable, and the trial court’s failure to permit evidence of sentencing al- - ternatives was not error.” Spreitzer, 123 Ill. 2d at 43-44.
“Rulings on issues that were previously raised at trial and on direct appeal are res judicata, and issues that could have been raised in the original proceedings, but were not, will be deemed waived.” (People v. Ruiz (1989), 132 Ill. 2d 1, 9.) The defendant argues that res judicata should not apply because the instant claim is distinguishable from the one raised on appeal.
“[T]he Post-Conviction Hearing Act was not intended to be used as a device to obtain another hearing upon a claim of denial of constitutional rights where there has already been a full review of the issues raised ***. This is so, even though the present petition attempts to change the character of the questions previously advanced and decided, by describing them in different constitutional terms.” (People v. Cox (1966), 34 Ill. 2d 66, 67-68.)
Because this court addressed the propriety of the trial court’s not tendering the mandatory alternative sentence instruction on direct review of the defendant’s case, the claim is now res judicata.
Defendant argues that resolution of this question relies on proof of instructions given at sentencing hearings in other death penalty cases. He asserts that the proof of the other cases was not in the record on direct appeal and, thus, the instant appeal cannot be barred on the grounds of res judicata. However, defendant offers no explanation for his failure to present the evidence of these other cases (which were decided prior to his direct appeal), on the initial appeal. Defendant’s recharacterization of his claim as a deprivation of equal protection is clearly an attempt to relitigate this court’s previous holding at his post-conviction hearing. This court has previously held that the defendant was not denied a fair sentencing hearing because the trial court failed to instruct the jury on the mandatory alternative sentence of natural life imprisonment. (Spreitzer, 123 Ill. 2d at 43-44.) We will not now allow a relitigation of the issue under a different guise.
For the reasons stated herein, the trial court’s dismissal of defendant’s post-conviction petition is affirmed. The clerk of this court is directed to enter an order fixing Wednesday, September 18, 1991, as the date on which the sentence of death entered in the circuit court of Du Page County is to be executed. Execution of defendant’s sentence shall be by lethal injection in the manner provided by section 119 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 119 — 5). A certified copy of this order shall be furnished to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution wherein the defendant is confined.
Judgment affirmed.
Edward SPREITZER, Petitioner-Appellee, Cross-Appellant, v. Howard A. PETERS, III, Director, Illinois Department of Corrections and Richard B. Gramley, Warden, Pontiac Correctional Center, Respondents-Appellants, Cross-Appellees.
Nos. 96-1467, 96-1520.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 8, 1996.
Decided May 23, 1997.
Richard E. Cunningham (argued), Chicago, IL, Gary Prichard, Glen Ellyn, IL, for Petitioner-Appellee.
Steven J. Zick (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondents-Appellants in No. 96-1467.
Rita M. Novak, Office of the Attorney General, Chicago, IL, Steven J. Zick (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondents-Appellees in No. 96-1520.
Before BAUER, COFFEY, and KANNE, Circuit Judges.
[OPINION BY BAUER, Circuit Judge. type=majority]
BAUER, Circuit Judge.
Edward Spreitzer is a state prisoner who was sentenced to death in 1986. Spreitzer filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Illinois on March 31, 1992. He argued, among other things, that he was denied due process of law when, after the prosecution raised the issue of his future dangerousness at sentencing, the court refused to allow evidence of or instruct the jury that if the jury did not impose the death penalty, he faced a mandatory alternative sentence of life imprisonment without parole under Illinois law. On January 31, 1996, the district court granted the writ of habeas corpus on this issue for the purpose of resentencing only. The district court found that Spreitzer was entitled to habeas relief based on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), which forbids the practice that occurred at Spreitzer’s sentencing. The district court specifically held that Spreitzer was entitled to benefit from the Supreme Court’s holding in Simmons because Simmons did not announce a “new rule” under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Respondents filed a notice of appeal from the district court’s decision on February 27,1996. Spreitzer filed a cross-appeal contesting the district court’s denial of two other claims. We reverse the district court’s holding that Simmons did not announce a “new rule,” and we reject Spreitzer’s remaining claims for relief.
BACKGROUND
I.
Spreitzer was convicted of five murders and admitted his involvement in four others. The gruesome details of the murders, which involved assault, rape, and dismemberment, can be found in the Illinois Supreme Court’s decisions, People v. Spreitzer, 123 Ill.2d 1, 121 Ill.Dec. 224, 525 N.E.2d 30 (1988) (“Spreitzer F) and People v. Spreitzer, 143 Ill.2d 210, 157 Ill.Dec. 467, 572 N.E.2d 931 (1991) (“Spreitzer IF), so we do not republish them here. Instead, we discuss the facts only where they are relevant to the individual issues in this opinion. We move on to recite the procedural background here.
On March 4, 1986 in Du Page County, Spreitzer was found guilty of the aggravated kidnapping and murder of Linda Sutton. After a bench trial, the State of Illinois requested a jury to impose the death penalty because of Spreitzer’s four previous murder convictions. At a separate sentencing hearing, the jury found insufficient mitigating factors and sentenced Spreitzer to death. The Illinois Supreme Court affirmed the convictions and the death sentence on direct appeal (Spreitzer I), and the United States Supreme Court denied Spreitzer’s petition for certiorari. See Spreitzer v. Illinois, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263 (1988).
Spreitzer filed a pro se petition for post-conviction relief under the Illinois Post-Conviction Hearing Act. See 725 ILCS 5/122-1. The trial court appointed Terry Ekl to represent Spreitzer for his post-conviction petition, but denied his amended petition on October 24, 1989, after hearing oral argument but without an evidentiary hearing. The Illinois Supreme Court affirmed the denial of Spreitzer’s posteonviction petition (Spreitzer II) and set Spreitzer’s execution for September 18,1991. The United States Supreme Court again denied Spreitzer’s petition for certiorari. See Spreitzer v. Illinois, 502 U.S. 985, 112 S.Ct. 594, 116 L.Ed.2d 618 (1991). Spreitzer then filed a petition for a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254. With the benefit of new attorneys, he filed an amended petition on November 23, 1994. His execution was stayed pending resolution of the habeas petition. On January 31,1996, the district court granted the petition as to the death sentence only and ordered Spreitzer to be resentenced within 120 days in a manner comporting with the due process requirements of the Fourteenth Amendment. See United States ex rel. Spreitzer v. Peters, No. 92 C 2182, 1996 WL 48585 (N.D.Ill. Feb.5, 1996). The district court denied relief on other sentencing and trial issues.
II.
The district court’s January 31,1996 order granted the writ of habeas corpus solely on the issue of whether Spreitzer was denied due process of law when, at sentencing, the State placed the issue of Spreitzer’s future dangerousness before the jury, and the trial judge refused to allow Spreitzer to inform or instruct the jury that if the jury did not sentence Spreitzer to death, Spreitzer would nonetheless be ineligible for parole. During the sentencing hearing, the prosecution elicited testimony from a clinical psychologist that Spreitzer was “resentful of authority,” had “some potential for dangerousness” and “could still be dangerous.” During rebuttal closing argument, the prosecutor told the jury that “Mr. Spreitzer, even by his own doctor who came in, is a very, very dangerous person” and that “people in your community have a right to five free from the fear of guys like Edward Spreitzer” and “a right to feel secure in their homes and on their streets.” The trial judge refused to allow Spreitzer’s trial attorney, Carol Anfinson, to put the Du Page County Public Defender, Peter Dockery, on the stand to testify as to Illinois law’s mandatory alternative sentence of life imprisonment without parole, which would render Spreitzer ineligible for parole if the jury did not sentence him to death. See 730 ILCS 5/5-8-1. The trial judge never instructed the jury that Spreitzer would be ineligible for parole in the event that the jury did not return a death sentence.
At the time of his sentencing hearing, Illinois law did not require the trial judge to instruct the jury on the alternative mandatory sentence of natural life. Spreitzer I, 123 Ill.2d at 43, 121 Ill.Dec. at 242, 525 N.E.2d at 48 (citing People v. Albanese, 102 Ill.2d 54, 81, 79 Ill.Dec. 608, 621-22, 464 N.E.2d 206, 219-20 (1984) and People v. Stewart, 105 Ill.2d 22, 70-71, 85 Ill.Dec. 241, 265, 473 N.E.2d 840, 864 (1984)). However, it is now established both under the Due Process Clause of the Fourteenth Amendment and under Illinois law that if the defendant’s future dangerousness is placed in issue, and the jury is not informed of the defendant’s ineligibility for parole, the Due Process Clause is violated. Simmons v. South Carolina, 512 U.S. 154, 156, 114 S.Ct. 2187, 2190, 129 L.Ed.2d 133 (1994) (plurality opinion); People v. Gacho, 122 Ill.2d 221, 256-63, 119 Ill.Dec. 287, 303-07, 522 N.E.2d 1146, 1162-66, cert. denied,, 488 U.S. 910, 109 S.Ct. 264, 102 L.Ed.2d 252 (1988).
In Simmons v. South Carolina, as in this case, the state put the issue of the defendant’s future dangerousness before the jury, but the trial judge refused to instruct the jury that the defendant was ineligible for parole. 512 U.S. at 156-61, 114 S.Ct. at 2190-93. The prosecutor argued during closing argument that a sentence of death would be “a response of society to someone who is a threat. Your verdict will be an act of self-defense.” Id. at 157, 114 S.Ct. at 2190-91. During deliberations, the jury sent a note to the judge asking whether “the imposition of a life sentence earr[ied] with it the possibility of parole[J” Id. at 160, 114 S.Ct. at 2192. The judge instructed the jury “not to consider parole or parole eligibility” in reaching its verdict, and twenty-five minutes later, the jury returned a sentence of death. Id. A plurality of the Supreme Court held that “where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Id. at 156, 114 S.Ct. at 2190. The plurality concluded its opinion by stating: “The State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant will never be released on parole.” Id. at 171,114 S.Ct. at 2198.
On direct appeal in this case, the Illinois Supreme Court indicated that “[a]t the time of the sentencing hearing, it was the law of Illinois that the trial court was not required to instruct a jury on the alternative mandatory sentence of natural life.” Spreitzer I, 123 Ill.2d at 43, 121 Ill.Dec. at 242, 525 N.E.2d at 48 (citing Albanese and Stewart). The Court indicated that People v. Gacho, 122 Ill.2d 221, 260, 119 Ill.Dec. 287, 305, 522 N.E.2d 1146, 1164 (1988) changed that rule, but that the Gacho rule was prospective only, and therefore was inapplicable. The Court concluded that the trial court’s failure to permit evidence of sentencing alternatives was not error, and the failure of defense counsel to tender such an instruction was not incompetent “for the obvious reason that the trial court could properly have refused such an instruction prior to our decision in Gacho.” Spreitzer I, 123 Ill.2d at 44, 121 Ill.Dec. at 242, 525 N.E.2d at 48.
In granting the writ of habeas corpus, the district court determined that the rule announced in Simmons was not “new” for purposes of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and that Spreitzer was therefore entitled to the benefit of that rule. Respondents appealed from that decision on February 27, 1996. Spreitzer filed a cross-appeal on March 1, 1996, contesting the denial of two other grounds for relief. First, Spreitzer argues that the trial court improperly refused to inquire into an alleged conflict of interest by his defense counsel. Second, he contends that the district court erred in failing to conduct an evidentiary hearing as to an ineffective assistance of counsel claim. We reverse the district court’s grant of habeas corpus on the sentencing issue, and affirm the denial of relief on the cross-appeal.
ANALYSIS
I.
On April 24,1996, while this case was pending, President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. No. 104-132, 110 Stat. 1214. The AEDPA amended the habeas statute, 28 U.S.C. § 2254, and this Court decided in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), cert. granted, — U.S. -, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997), that the new provisions apply to pending eases. See also Bocian v. Godinez, 101 F.3d 465, 471 (7th Cir.1996) (citations omitted). But see Hall v. Washington, 106 F.3d 742, 748 (7th Cir.1997) (showing disagreement among circuits on the issue of retroactivity). Because the issue is currently before the Supreme Court, and the Court may disagree with our resolution of it, we decide the issues in this case based on the amended statute, but also give careful consideration to our old de novo standard of review. See Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir.1997).
As amended, the new § 2254(d) authorizes the issuance of a writ of habeas corpus only if the challenged decision of the state court “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). The amended statute “requires federal courts ‘to give greater deference to the determinations made by state courts than they were required to do under the previous law.’” Ford v. Ahitow, 104 F.3d 926, 936 (7th Cir.1997) (citing Emerson v. Gramley, 91 F.3d 898, 900 (7th Cir.1996)).
Although the parties in this case did not thoroughly address the requirements of the new habeas statute, the asserted errors here all involve allegedly unreasonable applications of federal law under § 2254(d)(1). The new § 2254(d)(1) requires us to answer the “more subtle” question of whether the state court “unreasonably” applied clearly established federal law as the Supreme Court has determined it. Hall, 106 F.3d at 748. We have recently explained that the criterion for determining the “reasonableness” of an application of Supreme Court law is “whether the determination [the application] is at least minimally consistent "with the facts and circumstances of the ease.” Hennon, 109 F.3d at 335. “The statutory ‘unreasonableness’ standard allows the state court’s conclusion to stand if it is one of several equally plausible outcomes.” Hall, 106 F.3d at 748-49. Despite the fact that the amended statute places a higher burden on Spreitzer to show that the state court made a mistake than the previous law did, we believe that Spreitzer will not be entitled to relief on any of the issues raised in this appeal even if it turns out that the AEDPA does not apply to pending cases. Thus, we need not await the Supreme Court’s decision in Lindh to decide this case. Cf. Hall, 106 F.3d at 749.
II.
Respondents argue that the district court erred in determining that Spreitzer was entitled to a retroactive application of Simmons v. South Carolina. As a general rule, “[t]he nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final.” Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). Thus, we first determine whether we are required to follow the rule in Teague v. Lane that “new constitutional rules of criminal procedure will not be applicable to those eases which have become final before the new rules are announced.” 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). As Justice O’Connor explained in Teague, a case announces a new rule if it breaks new ground, imposes a new obligation on the States or the Federal Government, or if the result was not dictated by precedent existing at the time the defendant’s conviction became final. Id. at 301, 109 S.Ct. at 1070 (cited in Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 897-98, 122 L.Ed.2d 260 (1993)); see also Stewart v. Lane, 60 F.3d 296, 300 (7th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 2580, 135 L.Ed.2d 1095 (1996).
In Caspari v. Bohlen, the Supreme Court identified a three-step analysis for applying Teague to determine if a case announced a new rule:
First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. Second, the court must survey the legal landscape as it then existed and determine whether a state court considering the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroaetivity principle.
510 U.S. at 390, 114 S.Ct. at 953 (citations, internal quotations and alterations omitted). We will apply these rules to see if Spreitzer is entitled to benefit from the rule announced in Simmons. We assume, without so holding, that applying Simmons would indeed dictate a different result in this ease. See, e.g., Stewart, 60 F.3d at 299.
A Finality.
“A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.” Stewart, 60 F.3d at 300 (citing Caspari, 510 U.S. at 390, 114 S.Ct. at 953-54); see also Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6, 93 L.Ed.2d 649 (1987). Spreitzer’s conviction and sentence became final when the United States Supreme Court denied certiorari on his direct appeal on October 17, 1988. See Spreitzer v. Illinois, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263 (1988).
B. The Legal Landscape.
We proceed to the second step in the Teague analysis. We must survey the legal landscape as it existed on October 17, 1988 and determine whether reasonable jurists would have felt compelled by existing precedent on that date to conclude that the rule announced in Simmons was required by the Constitution. See Graham, 506 U.S. at 467, 113 S.Ct. at 897-98.
In a thorough and well-reasoned manner, one of our sister circuits has recently conducted this same survey and concluded that reasonable jurists would not have felt so compelled. O’Dell v. Netherlands 95 F.3d 1214, 1224-38 (4th Cir.1996) (en banc), cert. granted in part, — U.S.-, 117 S.Ct. 631, 136 L.Ed.2d 552 (Dec. 17, 1996). The Fourth Circuit in O’Dell held that Simmons was a “new rule” under Teague and could not be retroactively applied. Id. at 1239; see also Johnson v. Scott, 68 F.3d 106, 111 n. 11 (5th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1358, 134 L.Ed.2d 525 (1996) (determining that Simmons announced a “new rule” and could not be retroactively applied).
We conducted a truncated version of this legal survey in Stewart v. Lane, 60 F.3d 296, 300-02 (7th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 2580, 135 L.Ed.2d 1095 (1996). In Stewart, we examined the legal landscape as of May, 1985, and concluded that Simmons was a “new rule” for purposes of Teague in that it was not dictated by existing precedent as of that date. We therefore concluded that Simmons could not be retroactively applied to collateral habeas petitioners. As we discussed in Stewart, Simmons relied primarily on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) in reaching its holding. In Stewart, however, because the relevant date of inquiry was 1985, the petitioner was unable to use Skipper to argue that Simmons did not create a “new rule,” because the Supreme Court decided Skipper eleven months after Stewart’s conviction became final. Stewart, 60 F.3d at 300-01. In Stewart, the relevant question was “whether Simmons was compelled by precedent other than Skipper, specifically Gardner.” Id. at 301. We determined that “[t]he fact that Gardner lends general support to the conclusion reached in Simmons does not mean that state courts should have predicted Simmons as a further development in Due Process jurisprudence,” id., and that “the broad principles announced in Gardner thus laid the foundation for Simmons, but they are at too high a level of generality to compel it.” Id. at 301. We explicitly noted in a footnote in Stewart, however, that we might have had a different case if Stewart’s conviction had become final after the Supreme Court decided Skipper, because it was arguable that Skipper compelled the result in Simmons. Id. at 302 n. 4. We said, however, that “[gjiven the timing of Stewart’s convictions and Supreme Court decisions, we [would] not visit that question.” Id. Because Spreitzer’s conviction did become final after 1986 when the Supreme Court decided Skipper, we face that exact case now. Respondents argue that the footnote in Stewart was mere dicta, and that Skipper, viewed in conjunction with Gardner, did not compel Simmons either. We agree with Respondents.
Spreitzer argued to the district court that Skipper and Gardner, the central cases relied upon by the plurality in Simmons, compelled the Court’s due process holding. The district court, seizing on the footnote in Stewart, concluded that “Skipper, viewed in combination with Gardner, did announce the due process principles that dictated the result in Simmons, and should have guided the Illinois courts in their decisions concerning Spreitzer’s death sentence.” As the district court did, we discuss the two cases in chronological order to follow the progression of the Court’s jurisprudence.
Gardner was decided on due process grounds. In Gardner, the Supreme Court held that “the petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977). Gardner was convicted of first-degree murder in a Florida trial court. The jury recommended a life sentence, but the trial judge disregarded this recommendation and sentenced Gardner to death. In imposing the death penalty, the trial judge stated that he was relying in part on confidential information contained in a presentence investigation report (PSI) which was not available to the parties. The Supreme Court of Florida affirmed the death sentence without reviewing the confidential part of the PSI.
A plurality of the Supreme Court said that “this procedure does not satisfy the constitutional command that no person shall be deprived of life without due process of law.” Id. at 351, 97 S.Ct. at 1201. The Court vacated Gardner’s death sentence, holding that the Florida trial court had failed to follow fundamental procedures required prior to imposing the death penalty. Stewart, 60 F.3d at 301 (citing Gardner, 430 U.S. at 358, 361, 97 S.Ct. at 1204-05, 1206; id. at 363, 97 S.Ct. at 1207 (White, J., concurring)).
The plurality distinguished Gardner from Williams v. People of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), by pointing out that in Williams, the judge had relied on information in a PSI that was also described in detail by the trial judge in open court, so that petitioner’s counsel could challenge the accuracy or materiality of any such information. Gardner, 430 U.S. at 356, 97 S.Ct. at 1203-04. The Supreme Court also pointed out that since the Williams decision, which was written in 1949, the Court “has acknowledged its obligation to reexamine capital-sentencing procedures against evolving standards of procedural fairness in a civilized society.” Id. at 357, 97 S.Ct. at 1204. The Court noted that, as of the date Gardner was decided, five Members of the Court had expressly recognized that death is a “different” kind of penalty, and that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Id. at 357-58, 97 S.Ct. at 1204r-05.
As we explained in Stewart v. Lane, Gardner is not a case that compels Simmons because of the factual confines in Gardner. When the Court said “confidential information” in Gardner, the Court was referring to discrete information which is factually relevant as an aggravating or mitigating factor and which is not disclosed to the defendant or his counsel. Id. at 358, 97 S.Ct. at 1204-OS. The Court was not referring to legal or procedural information of which, for some reason, whether it be lack of diligence, lack of familiarity with sentencing procedures, or lack of interest, someone involved in the case was unaware. As we clearly stated in Stewart, although the Court relied on Gardner in Simmons, and Simmons clearly emerges from the teachings of Gardner, “[t]his nexus is not sufficient ... to lift [petitioner] over the hurdle erected by Teague and elevated by its progeny.” Stewart, 60 F.3d at 301.
The next logical question, which we must answer today, is whether the combination of Gardner and Skipper compels Simmons. The Fourth Circuit answered this question in the negative in O’Dell, and we also do not find that the Gardner/Skipper line of cases compels Simmons.
In contrast to the due process foundation of Gardner, Skipper’s foundation was the Eighth Amendment. In Skipper v. South Carolina, the Supreme Court held that a petitioner’s death penalty must be reversed because testimony the petitioner proffered regarding his good behavior in jail was excluded from the sentencing hearing, thus preventing the petitioner from presenting relevant evidence in mitigation of punishment. 476 U.S. 1, 4, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986). The Court found this to be violative of its previous Eighth Amendment holdings in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The Court was careful to note in Skipper that the Eighth Amendment issue was “the only question before [it]” and that it had granted certiorari only to determine “whether, under the Eighth Amendment, the lower court’s decision was ‘inconsistent with th[e] Court’s decisions in Lockett and Eddings.’ ” O’Dell, 95 F.3d at 1225 (citing Skipper, 476 U.S. at 4, 106 S.Ct. at 1670-71).
Although the Court specifically noted that it was deciding the case based on the fact that the senteneer could not be precluded from considering “any relevant mitigating evidence” presented by a defendant, (Skipper, 476 U.S. at 4, 106 S.Ct. at 1671) the Court also noted in a footnote:
Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings [two Eighth Amendment decisions] that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death “on the basis of information which he had no opportunity to deny or explain.” Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977).
Skipper, 476 U.S. at 5 n. 1, 106 S.Ct. at 1671 n. 1. Although this footnote clearly indicates that the Court considered the due process implications of such conduct, it is also evident that the Court did not decide Skipper on the basis of Gardner, nor was Skipper the logical extension of Gardner. See also O’Dell, 95 F.3d at 1225. As Respondents argue in their brief, “This fleeting reference to Gardner is hardly persuasive authority for deeming Skipper a due process parent of Simmons so as to avoid Teague.” In fact, as evidence that the Skipper majority did not intend to decide the case solely on the basis of Gardner, Justice Powell, joined by Chief Justice Burger and then-justice Rehnquist, concurred in the judgment in Skipper specifically to note that he believed the case should have been decided solely on the basis of Gardner. The concurrence stated: “I would reverse ... because petitioner was not allowed to rebut evidence and argument used against him.” 476 U.S. at 9, 106 S.Ct. at 1673 (Powell, J., concurring). The Skipper majority could have joined in this point, but did not.
As Respondents point out, it is, of course, not to be ignored that in Simmons the Supreme Court referred to its decision in Skipper by saying that “the Court’s conclusion [in Skipper] also was compelled by the Due Process Clause” and “[t]he principle announced in Gardner was reaffirmed in Skipper, and it compels our decision today.” Simmons, 512 U.S. at 164-65, 114 S.Ct. at 2194. But in Stewart v. Lane, we addressed this language by pointing out that “the fact that a court says its decision is controlled by a prior holding is not conclusive or dispositive for the purposes of deciding whether the relevant decision is a new rule under Teague.” Stewart, 60 F.3d at 301 n. 3 (citing Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 1217-18, 108 L.Ed.2d 347 (1990)).
In Simmons, the Supreme Court stated:
In this case, the jury reasonably may have believed that petitioner could be released on parole if he were not executed. To the extent this misunderstanding pervaded the jury’s deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. This grievous misperception was encouraged by the trial court’s refusal to provide the jury with accurate information regarding petitioner’s parole ineligibility, and by the State’s repeated suggestion that petitioner would pose a future danger to society if he were not executed.... The State thus succeeded in securing a death sentence on the ground, at least in part, of petitioner’s future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its noncapital sentencing alternative, namely, that life imprisonment meant life without parole. We think it is clear that the State denied petitioner due process.
Simmons, 512 U.S. at 161-62, 114 S.Ct. at 2193. Following this paragraph, the Court stated in a footnote: ‘We express no opinion on the question whether the result we reach today is also compelled by the Eighth Amendment.” Id. at 162 n. 4, 114 S.Ct. at 2193 n. 4.
In any case, neither Skipper nor Gardner dealt with instructions to the jury about the kind of post-sentencing contingencies that were at issue in Simmons. “The Gardner court was not concerned with the substance of the confidential report; the procedural unfairness in its secrecy alone was enough to render its use unconstitutional.” Stewart, 60 F.3d at 301. We expand our holding in Stewart v. Lane to encompass Skipper as well as Gardner. The fact that Gardner and Skipper lend general support to the conclusion reached in Simmons does not mean that state courts should have predicted Simmons as a further development in due process jurisprudence. See Stewart, 60 F.3d at 301.
In addition, as the Fourth Circuit noted in O’Dell, if Gardner and Skipper made up the totality of the legal landscape in 1988, “the claim that Simmons was not a new rule might, at least at first blush, have considerable force.” O’Dell, 95 F.3d at 1225. However, a reasonable jurist surveying the legal landscape in 1988 would also have been confronted with California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), which the Supreme Court decided between Gardner and Skipper. Ramos factored heavily into the Fourth Circuit’s extensive discussion in O’Dell and led to its conclusion that Simmons announced a “new rule.” O’Dell, 95 F.3d at 1225-29. The district court in this case did not address Ramos when it determined that Gardner and Skipper compelled Simmons.
In Ramos, the Supreme Court determined that there was not a constitutional infirmity under either the Eighth or the Fourteenth Amendment in “instructing a capital sentencing jury regarding the Governor’s power to commute a sentence of life without possibility of parole.” Ramos, 463 U.S. at 994, 103 S.Ct. at 3449. At the time, California law required the trial judge to instruct the jury on aggravating and mitigating circumstances and that a sentence of life imprisonment without the possibility of parole could be commuted by the Governor to a sentence that includes the possibility of parole. The trial judge in Ramos gave this instruction, and the jury returned a verdict of death. The California Supreme Court affirmed the conviction but reversed the death sentence, concluding that the instruction violated the Constitution. The United States Supreme Court reversed, finding the instruction did not violate the Eighth Amendment, in light of the Court’s previous limitations on the factors which a sentencing jury could consider in determining whether death was an appropriate sentence.
Later descriptions of Ramos suggest that reasonable jurists interpreting Ramos could have viewed it as a ease that gave states discretion in this area. In Simmons, the Supreme Court described Ramos as a case which “stands for the broad proposition that we generally will defer to a State’s determination as to what a jury should and should not be told about sentencing.” Simmons, 512 U.S. at 168, 114 S.Ct. at 2196. In her Simmons concurrence, Justice O’Connor described Ramos as being a previous approval of the practice that “[m]any state courts have held it improper for the jury to consider or to be informed — through argument or instruction — of the possibility of commutation, pardon, or parole.” Simmons, 512 U.S. at 176, 114 S.Ct. at 2200 (O’Connor, J., concurring) (citing Ramos, 463 U.S. at 1013 n. 30, 103 S.Ct. at 3460 n. 30). Justice Scalia’s dissent in Simmons quoted Ramos as saying: “[T]he wisdom of the decision to permit juror consideration of [postsentencing contingencies] is best left to the States.” Simmons, 512 U.S. at 183, 114 S.Ct. at 2204 (Scalia, J., dissenting) (citing Ramos, 463 U.S. at 1014, 103 S.Ct. at 3460). As of the date of Ramos, state courts could reasonably have thought that they could use their own discretion in determining whether sentencing juries in capital eases must or should hear post-sentencing statutory contingencies. That is, state courts would not necessarily have believed that such instructions were either required or prohibited.
In addition to the Fourth Circuit’s reliance on Ramos in O’Dell, the Fifth Circuit relied exclusively on Ramos when it determined that Simmons announced a “new rule.” Johnson v. Scott, 68 F.3d 106, 111-12 n. 11 (5th Cir.1995). The court stated: “Simmons did announce a new rule because it held that in some situations the states are no longer free to decide whether an instruction on parole should be given. This is inconsistent with the Court’s earlier ruling in California v. Ramos.... Therefore, even if Simmons applied to [petitioner’s] case, it would still be barred by Teague.” Id. (citation omitted).
Now that we have set out the conflicting views in the landscape that a reasonable jurist would have faced on October 17, 1988, we note some of the Supreme Court’s own statements about “new rules” under Teague. The Court stated in Graham: “While there can be no dispute that a decision announces a new rule if it expressly overrules a prior decision, ‘it is more difficult ... to determine whether we announce a new rule when a decision extends the reasoning of our prior cases.’ ” Graham, 506 U.S. at 467, 113 S.Ct. at 897 (citing Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990)). The Court also said: “The result in a given case is not dictated by precedent if it is susceptible to debate among reasonable minds, or, put differently, if reasonable jurists may disagree.” Graham, 506 U.S. at 476, 113 S.Ct. at 902 (quoting Stringer v. Black, 503 U.S. 222, 238, 112 S.Ct. 1130, 1141, 117 L.Ed.2d 367 (1992) (Souter, J., dissenting)).
In light of the arguably conflicting line of Supreme Court eases, we conclude that on October 17, 1988, reasonable jurists certainly could have disagreed over whether the legal landscape was such that a sentencing jury must be informed that a defendant will not be back on the street if he is not sentenced to death. We do not believe that Simmons created the kind of rule that was “compelled” by the entirety of the legal landscape existing at the time of its pronouncement. As the Supreme Court noted in Graham, “Because the leading purpose of federal habeas review is to ensurfe] that state courts conduct criminal proceedings in accordance with the Constitution as interpreted at the time of th[ose] proceedings, [t]he ‘new rule’ principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts.” 506 U.S. at 467, 113 S.Ct. at 897-98 (citing Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990)). The Illinois trial court made a good-faith interpretation of existing precedent during Spreitzer’s sentencing. The trial court did not proceed in a manner that was either contrary to, or an unreasonable application of, clearly established Federal law as determined by the United States Supreme Court. See also O’Dell, 95 F.3d at 1237-38. Alternatively, if the Supreme Court determines that the AEDPA does not apply to pending cases, we hold, in our de novo review under those circumstances, that the Illinois courts reached this issue on the merits and did not err in their conclusion.
In sum, we conclude, like the Fourth and Fifth Circuits, that Simmons announced a “new rule” under Teague, and that Spreitzer was not entitled to benefit from the rule announced in Simmons on habeas review. The district court therefore erred in applying Simmons to Spreitzer’s case.
C. The Exceptions to Teague.
Finally, we must determine whether either of the two narrow exceptions to the Teague rule apply. Neither party has contended that either of the exceptions have any relevance to this ease. The first exception deals with new rules that place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Caspari, 510 U.S. at 396, 114 S.Ct. at 956 (citing Teague, 489 U.S. at 307, 109 S.Ct. at 1073-74). This exception also applies if a rule addresses a substantive categorical guarantee accorded by the Constitution such as a rule “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” O’Dell, 95 F.3d at 1238 (citing Saffle v. Parks, 494 U.S. 484, 494, 110 S.Ct. 1257, 1263, 108 L.Ed.2d 415 (1990)). The first exception clearly is not relevant here, and was summarily dismissed in both O’Dell and Stewart. In O’Dell, the exception was found to be inapplicable because the rule announced in Simmons neither decriminalizes a class of conduct nor prohibits the imposition of capital punishment on a particular class of persons because of their status or offense. O’Dell, 95 F.3d at 1238-39.
The second exception is for “watershed rules of criminal procedure impheating the fundamental fairness and accuracy of the criminal proceeding.” Caspari, 510 U.S. at 396, 114 S.Ct. at 956 (citing Saffle, 494 U.S. at 495, 110 S.Ct. at 1263-64). This exception “is clearly meant to apply only to a small core of rules requiring observance of those procedures that ... are implicit in the concept of ordered liberty.” O’Dell, 95 F.3d at 1239 (citing Graham, 506 U.S. at 478, 113 S.Ct. at 903). The O’Dell court and our panel in Stewart both concluded that the rule announced in Simmons was not such a rule, and did not alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. O’Dell, 95 F.3d at 1239; Stewart, 60 F.3d at 302-03. We concur in those conclusions that the second exception also does not apply to the rule announced in Simmons. We therefore reiterate that Simmons announced a “new rule” for purposes of Teague and Spreitzer may not receive the benefit of the rule in Simmons.
III.
A. Conflict of Interest.
Spreitzer has two arguments on cross-appeal, neither of which provides grounds for relief. First, Spreitzer contends, as he did on direct appeal, that his Sixth Amendment right to effective assistance of counsel was violated because the trial court did not inquire into a possible conflict of interest by defense counsel. See Spreitzer I, 123 Ill.2d at 11-23, 121 Ill.Dec. 224, 525 N.E.2d at 33-38.
In 1984, when he was indicted for Linda Sutton’s murder, Spreitzer’s original defense counsel was Frank Wesolowski, the Public Defender of Du Page County. Wesolowski assigned Assistant Public Defender Edward Ward to Spreitzer’s ease. Ward worked on the case until he resigned from his position as an Assistant Public Defender. Ward informed the trial court on June 4, 1985 of his resignation, but indicated that he would continue representing Spreitzer until the Public Defender’s Office hired a replacement. On June 18, 1985, Wesolowski himself appeared before the trial court and told the court he was assigning Assistant Public Defender Carol Anfinson to the case, but that she could not handle the case for several months because of her workload. When the trial court asked Wesolowski if he could temporarily assign another Assistant for pretrial motions, Wesolowski told the court and the prosecutor, Brian Telander, that he had just hired Peter Dockery to replace Ward as an Assistant Public Defender. The following conversation then took place:
MR. WESOLOWSKI: Judge, perhaps a conference — I employed a new attorney who is very capable to handle this, but I understand that a couple of years ago when he was employed in the State’s Attorney’s Office, he handled some matters in this case. So he would not be able to handle it. The State would object to that.
MR. TELANDER: He is talking about Pete Dockery, and he was very much involved in the decision to charge Mr. Spreitzer. Since it is a capital ease, we think there would be such a conflict of interest that the Supreme Court, should it get that far, would look at it—
THE COURT: I would have him withdraw from the ease anyway based upon that information. Why don’t we do this. I’ll continue — without the defendant’s presence being required — to June 27th to have a determination as to who will be assigned the matter and what their schedule will be.
Ward continued to represent Spreitzer by special appointment. On September 23, 1985, Ward was allowed to withdraw, and the Public Defender’s Office again was appointed to represent Spreitzer, with an appearance filed by Anfinson. In January 1986, Wesolowski resigned as the Public Defender, and by early-February 1986, prior to the start of Spreitzer’s trial, Assistant Public Defender Dockery had become the Du Page County Public Defender. This meant that Dockery’s name appeared on pretrial motions and pleadings as Spreitzer’s lead defense counsel, although Anfinson continued to represent Spreitzer in court. Spreitzer argues that both Dockery and Anfinson had a conflict of interest because Dockery had previously been involved as a prosecutor against Spreitzer in the same proceeding and because Dockery was Anfinson’s supervisor.
On direct appeal, the Illinois Supreme Court rejected this issue after addressing it thoroughly. See Spreitzer I, 123 Ill.2d at 11-23, 121 Ill.Dec. at 227-32, 525 N.E.2d at 33-38. The court assumed that Spreitzer’s argument centered on the possible existence of a conflict in cases where Dockery had some previous prosecutorial involvement, but the court rejected the argument. Spreitzer I, 123 Ill.2d at 19, 121 Ill.Dec. at 231, 525 N.E.2d at 37. The court held that “insofar as the defendant’s claim is premised upon the mere employment of Dockery as an assistant public defender, it does not assert a per se conflict.” Spreitzer I, 123 Ill.2d at 22, 121 Ill.Dec. at 232, 525 N.E.2d at 38. The court further found that Dockery’s employment as the Public Defender, and therefore as Anfinson’s boss, did not create a per se conflict either because “Dockery’s tie to the prosecution, a tie which was itself fairly tenuous, would be counterbalanced by his present status as the public defender. Presumably he was more interested in winning eases currently assigned to his office than in protecting the integrity of the decisions he had made when he was a prosecutor.” Spreitzer I, 123 Ill.2d at 22, 121 Ill.Dec. at 232, 525 N.E.2d at 38. The Illinois Supreme Court concluded:
Since there was no per se conflict it remains to be determined whether there was a potential conflict brought to the attention of the court or an actual conflict demonstrated by the performance of counsel at trial. Clearly, the potential conflict was not brought to the attention of the court. Anfinson made no motions for appointment of separate counsel after Dockery became the public- defender and never raised the issue in any other form.
Id.
On habeas review, the district court also rejected this claim, concurring with the Illinois Supreme Court’s conclusion. The district court added, “[T]here is no evidence that the assistant public defender in charge of Spreitzer’s ease was ever hampered by any alleged conflict of Dockery’s, or that Dockery himself ever participated in Spreitzer’s case in more than a titular capacity.”
We review this issue, which involves both questions of law and questions of fact, using a de novo standard of review. Enoch v. Gramley, 70 F.3d 1490, 1496 (7th Cir.1995) (citation omitted), cert. denied, — U.S. -, 117 S.Ct. 95, 136 L.Ed.2d 50 (1996). The Sixth Amendment right to effective assistance of counsel encompasses “a correlative right to representation that is free from conflict of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) and Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)); see also United States v. Cirrincione, 780 F.2d 620, 624 (7th Cir.1985). “It is well settled that ‘[a] criminal defendant is entitled to counsel whose undivided loyalties lie with the client.’ ” Stoia v. United States, 109 F.3d 392, 395 (7th Cir.1997) (citations omitted). Therefore, a defendant may bring an ineffective assistance of counsel claim premised on the fact that he and his attorney possessed divergent interests. Id.
To evaluate these claims, we normally use the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), whereby the defendant must demonstrate that his attorney’s performance was deficient and that the deficiency prejudiced him. However, where a conflict of interest provides the predicate for an ineffective assistance claim, a defendant bears a lighter burden with regard to demonstrating prejudice. United States v. Horton, 845 F.2d 1414, 1418 (7th Cir.1988) (citations omitted); see also United States v. Fish, 34 F.3d 488, 492 (7th Cir.1994). “But for” prejudice need not be shown in these situations because “the existence of a conflict itself demonstrates a denial of effective assistance of counsel.” Fish, 34 F.3d at 492 (citing Cuyler, 446 U.S. at 349, 100 S.Ct. at 1718-19). “This presumption of prejudice is necessary because a true conflict of interest forecloses the use of certain strategies and thus the effect is difficult if not impossible to measure.” Id. (citing United States v. Ellison, 798 F.2d 1102, 1107 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987)).
The extent to which a defendant asserting a conflict of interest must demonstrate prejudice depends on whether and to what extent the alleged conflict was brought to the trial court’s attention. Fish, 34 F.3d at 492; see also United States v. Cook, 45 F.3d 388, 393 (10th Cir.1995).
In Holloway v. Arkansas, the Supreme Court held that if the defendant or his attorney raises the issue or the trial judge otherwise knows or reasonably should know of the alleged conflict of interest, the judge must inquire adequately into the potential conflict. 435 U.S. 475, 484-91, 98 S.Ct. 1173, 1178-82, 55 L.Ed.2d 426 (1978); see also Fish, 34 F.3d at 492; Horton, 845 F.2d at 1418. Otherwise, a reviewing court will presume prejudice upon a showing of possible prejudice. Fish, 34 F.3d at 492; Horton, 845 F.2d at 1418 (citing Holloway, 435 U.S. at 484-91, 98 S.Ct. at 1178-82; Walberg v. Israel, 766 F.2d 1071, 1075 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); United States v. Marrero, 768 F.2d 201, 205 (7th Cir.1985)). Thus, as we summarized in Fish, “when a timely objection is made and the court fails to inquire adequately into the possibility of conflict, a reviewing court will presume prejudice, even without a showing of an actual conflict of interest.” Fish, 34 F.3d at 492 (citing Holloway, 435 U.S. at 484-91, 98 S.Ct. at 1178-82; Horton, 845 F.2d at 1418). If, on the other hand, the defendant does not make a timely objection or the trial court is not otherwise apprised of the possible conflict, then the reviewing court will presume prejudice only if the defendant can show that “an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 348-49, 100 S.Ct. at 1718; Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; see also Horton, 845 F.2d at 1418.
Spreitzer argues that we should apply the Holloway standard and reverse his conviction because he believes the trial court was aware of Peter Dockery’s alleged conflict and therefore had a duty to inquire into it. Spreitzer argues that the court became aware of the alleged conflict three times: (1) when Dockery became an Assistant Public Defender and the above-quoted conversation occurred; (2) when Dockery became the Du Page County Public Defender and his name began appearing on pleadings before the court; and (3) at sentencing, when Anfinson attempted to call Dockery to the stand to testify as to Illinois’ mandatory natural life sentence. Spreitzer therefore contends that the trial court knew or should have known that Dockery had a conflict of interest in representing Mr. Spreitzer in any capacity, and that the trial court should have made an inquiry as required by Holloway.
We agree that Holloway provides the correct standard to apply to Dockery’s status in this case. Our review of the record suggests that the trial judge was adequately and clearly apprised of the potential conflict of interest when Dockery was initially hired, as well as when Anfinson proposed calling Dockeiy as a witness. On that issue, we disagree with the Illinois Supreme Court’s determination that the “potential conflict was not brought to the attention of the court.” However, we also disagree with Spreitzer that the trial judge shirked his duty of monitoring the situation in terms of the alleged conflict of interest. We believe that the judge was adequately informed of the nature of the conflict and correctly admonished that Dockery could not be involved in the case. We fail to see how the trial judge’s insistence that Spreitzer be represented by a different attorney in the Public Defender’s office violated Spreitzer’s right to effective assistance of counsel. The trial judge took adequate steps when he stated that Dockery would not be able to represent Spreitzer and when he required another attorney in the office to handle the case. The judge was also correct (in terms of the conflict situation only) when he refused to allow Dockery to testify as an expert witness diming sentencing. As for Anfinson, we defer to the Illinois Supreme Court’s reasoning that she would not be disqualified from representing Spreitzer merely because another member of her office had at one time been a state’s attorney on the other side. The Illinois Supreme Court found, and we agree, that “the asserted disjunction between Anfinson’s duty to her client and her supposedly conflicting loyalty to Dockeiy is extremely speculative and remote.” Spreitzer I, 123 Ill.2d at 22, 121 Ill.Dec. 224, 525 N.E.2d at 38.
The Holloway standard still applied when Dockery was elevated to the position of Public Defender of Du Page County. The trial judge’s initial comments carried over to the time when Dockery was promoted and the judge’s admonition was still valid. Moreover, if Dockery felt that his elevation to the Du Page County Public Defender created a conflict of interest, the Public Defender’s Office would have so informed the judge at that time. As we said in Fish, “Given defense counsel’s duty to avoid conflicts of interest and to advise the court promptly upon discovery of a conflict, the trial court’s reliance on defense counsel’s own assessment regarding the potential for conflict was entirely reasonable.” Fish, 34 F.3d at 493. “Indeed, it is the attorney confronted with a potential conflict who is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” Id. (citing Holloway, 435 U.S. at 485, 98 S.Ct. at 1179) (internal quotations omitted). As in Fish, Spreitzer has not pointed to any evidence supporting a conflict of interest after Dockery was elevated to the Public Defender. Nor does the record indicate that the asserted failure of the trial court to delve deeper into the alleged conflict prevented the unearthing of any material information necessary for the conflict determination. See id.
Assuming arguendo that the judge should have readdressed the potential conflict of interest when Dockery was promoted, the Cuyler standard would apply. Under Cuyler, Spreitzer would be required to show the existence of an actual conflict of interest which adversely affected Anfinson’s performance. We find neither an actual conflict nor an adverse affect on Spreitzer’s defense. The trial court made clear that Dockery could not have a role in Spreitzer’s defense, and the record indicates that he did not play a role. The only instance in which Dockery was potentially involved was when, before sentencing, Anfinson proposed calling Dockery as a witness to testify about parole ineligibility under Illinois law. This proposal was rejected by the court. As counsel conceded at oral argument, there is no other evidence in the record that Dockery played any role whatsoever in Spreitzer’s defense or that he participated personally in any decision-making regarding Spreitzer’s defense. The record does not indicate that Dockery was involved in Spreitzer’s defense in any way other than in a titular capacity. Further, the record is replete with instances of the effective assistance of counsel that Ward and Anfinson both provided in Spreitzer’s behalf through the Public Defender’s Office. There is absolutely no evidence in the record that Ward or Anfinson was somehow affected by having a former prosecutor as a colleague or a supervisor. Spreitzer received a vigorous and thorough defense. We therefore affirm the district court’s denial of this ground for habeas relief.
B. Evidentiary Hearing.
Finally, Spreitzer argues that the district court erred in denying him a full and fair hearing to establish his claim of ineffective assistance of counsel on the pretrial motion to quash his arrest and to suppress statements. Spreitzer argued in his post-conviction petition that during the pretrial hearing on these motions, attorney Ward was ineffective in failing to investigate, locate, or present the testimony of witnesses who would have established the illegality of his arrest in this cause. Spreitzer also argued that he was prejudiced by Ward’s failure to investigate. See Spreitzer II, 143 Ill.2d at 215, 157 Ill.Dec. at 469, 572 N.E.2d at 933. Spreitzer argues that he has never been able to flesh out this claim because the Illinois court hearing his post-conviction petition dismissed the claim without conducting an evidentiary hearing, and all reviewing courts have subsequently determined that he was not entitled to an evidentiary hearing. See Spreitzer II, 143 Ill.2d at 215-20, 157 Ill.Dec. at 469-71, 572 N.E.2d at 933-35. We agree with these reviewing courts’ decisions not to grant an evidentiary hearing.
1. Pretrial Motion to Quash.
Spreitzer was arrested in conjunction with the Sutton murder on November 5, 1982. Prior to trial, Spreitzer filed a motion to quash the arrest on the grounds that probable cause was lacking at the time the police took him into custody. He also filed a motion to suppress statements he made on November 5 and 8, 1982, as fruits of the unlawful arrest. His statements dealt with his involvement in a number of murders, including that of Linda Sutton. As the Illinois Supreme Court noted, the issue was whether Spreitzer “was arrested by the police before or after he had made the incriminating statement which provided the probable cause for his arrest.” Spreitzer II, 143 Ill.2d at 215, 157 Ill.Dec. at 469, 572 N.E.2d at 933.
Spreitzer himself was the only witness who testified in support of the motion to quash. He testified that he was arrested on November 5, 1982 at 10:30 p.m. near the garage of his mother’s house. He testified that during the arrest, Detective Thomas Flynn and his partner asked Spreitzer his name and told him that they wanted to “bring him in” to ask him some questions. Spreitzer testified that they pushed him against a car in the rear of his mother’s house, patted him down and handcuffed him behind his back, placed him in the backseat of a squad car and took him to a police station where he was held in custody for five days and questioned repeatedly.
Detective Flynn and Du Page County Sheriffs Detective Warren Wilkosz both testified in opposition to the motion to quash. Detective Flynn testified that he stopped Spreitzer on October 20, 1982, in a van matching the description of a van used in the mutilation assaults of two prostitutes in Chicago. Spreitzer voluntarily went to the police station to be photographed for a photo lineup to be shown to one of the victims. Detective Flynn testified that, as a result of an investigation, Spreitzer agreed to take a polygraph examination on November 5. When Spreitzer failed to show up for the polygraph, he and his partner went looking for Spreitzer. They found him at 7:45 p.m. at his mother’s house, and Spreitzer voluntarily accompanied them to the police station to take the polygraph exam at 8 p.m. He said that Spreitzer was not handcuffed or under arrest when he accompanied Flynn to the station. Flynn testified that after the exam, Spreitzer voluntarily accompanied him to another police station for further questioning, during which Spreitzer admitted his involvement in some homicides. Detective Flynn testified that it was only after these admissions that Spreitzer was arrested. The trial court denied the motion to quash based on this evidence, finding that Spreitzer made incriminating statements prior to his arrest, and that these statements provided the probable cause for his arrest.
2. Post-conviction Petition.
In his initial pro se post-conviction petition, Spreitzer claimed that he had told his counsel, Ward, prior to the motion to quash that some of his mother’s neighbors had seen the alleged arrest and had seen him handcuffed behind her house. Spreitzer argued that Ward was ineffective because Ward never tried to find these witnesses or interview them to determine whether they would corroborate Spreitzer’s testimony.
We evaluate ineffective assistance of counsel claims under the now-familiar two-pronged performance/prejudice standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Spreitzer can succeed on this claim only if he can show both that his counsel’s representation fell below an objective standard of reasonableness, id. at 688, 104 S.Ct. at 2064-65, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, id. at 694, 104 S.Ct. at 2068. See also Porter v. Gramley, 112 F.3d 1308, 1312-13 (7th Cir.1997). Because ineffective assistance of counsel is a mixed question of law and fact, we review it under the standards announced in the newly-amended 28 U.S.C. § 2254(d)(1), which retroactively applies to pending cases. See Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir.1996), cert. granted in part, — U.S.-, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997); see also Porter, 112 F.3d at 1312-13. As indicated above, we may grant habeas relief on such a question only if the state court determination on the issue involved an “unreasonable application” of clearly established federal law as established by the Supreme Court. This means that a responsible, thoughtful answer reached after a full opportunity to litigate is sufficient to support the judgment. Lindh, 96 F.3d at 871 (quoted in Porter, 112 F.3d at 1312-13).
After the state court gave Spreitzer a thorough opportunity to address this issue on postconviction review both in written and oral argument, it reached a responsible, thoughtful conclusion in its Strickland analysis. The record is clear that Terry Ekl, who had been appointed to represent Spreitzer for the post-conviction petition, studied the issue and raised it in front of the judge. Prior to filing an amended postconviction petition on Spreitzer’s behalf, Ekl stated to the court:
I am going to need approximately another four weeks, Your Honor. There is one allegation raised in the [pro se] petition that I need to investigate. [Spreitzer] alleges that in conversations with prior counsel it was — the Defendant informed his other attorney of some potential witnesses who might have information relative to a motion to suppress. What I need to do is find those witnesses, interview them, to determine whether there is any substance to their observations and whether they would have had any value as witnesses and, therefore, whether that allegation would have any merit. So what I am going to need to do is have my private investigator locate these people, interview them, and then I can determine whether proper affidavits can be filed in support of the post-conviction petition. I think as it stands on its face, there are mere allegations without any support by way of affidavit or other verified pleadings that I need to file in order to have a post-conviction petition that has any substance.
Ekl filed an amended post-conviction petition on August 23, 1989. Ekl recognized that if any potential witnesses had statements that would benefit Spreitzer’s position, they would need to be located and their statements would need to be taken. Nonetheless, he was still only able to attach one statement to the amended post-conviction petition. This statement was written by a neighbor, M.R., who lived two houses down from Spreitzer’s mother. Rudniek’s statement was unsworn and dated almost seven years from the date of the arrest. The statement read, in its entirety:
I was in the living room window which faces South looking out at the street. It was early afternoon, the weather was clear and sunny. I saw Edward Spreitzer standing in the street handcuffed to the driver side door post of a police ear parked in front of his house. He was alone, no police were in the area that I could observe. He appeared to be calm and uninjured from my view which is two houses West of his.
I watched him for approximately five minutes then left the window. The last I saw of him was as I stated above.
/S/ M.R. 7-25-89
After reviewing the statement, the judge ruled that there was no basis to find a deficiency in Ward’s performance. The judge concluded:
There is no date specified, no time, she saw no police in the area. Defendant was calm, uninjured. She saw all of this from her window. She watched for a short while and then left her window. And the only corroboration of this, by review of transcript, was the arrest — not the arrest site, but the site in back of Defendant’s home when certain investigation was being made. There was evidence that he was not handcuffed. This is referred to in both the transcript and in the officer’s testimony. This in no way adds any new matter to the situation. Therefore, the Court finds the statement lacking a sufficient basis to support the petition. And all other matters in Count I were addressed at the motion to suppress hearing. Therefore, the allegations in the petition fail to measure up to a deficiency in counsel’s performance.
Although the judge did not give Spreitzer a full-fledged evidentiary hearing after reviewing R.’s statement, Illinois does not give postconviction petitioners an automatic right to an evidentiary hearing. People v. French, 210 Ill.App.3d 681, 686, 155 Ill.Dec. 457, 461, 569 N.E.2d 934, 938 (2d Dist.1991) (citing People v. Del Vecchio, 129 Ill.2d 265, 279, 135 Ill.Dec. 816, 544 N.E.2d 312 (1989)). A hearing will be granted only if the defendant makes a substantial showing of a violation of constitutional right and if the allegations are supported by the record or by affidavits accompanying the petition. Id. Because R.’s vague and probably contradictory statement was the only relevant information attached to the petition, the state court was more than reasonable in determining that Spreitzer did not make this substantial showing.
On appeal from the denial of the post-conviction petition, the Illinois Supreme Court quoted R.’s statement in its entirety and pointed out the many inconsistencies between it and Spreitzer’s version of the events. The Illinois Supreme Court concluded: “[R]egardless of whether or not defense counsel was ineffective in not investigating the witness, the statement of M.R. does not provide the probability of doubt that could lead to a retrial. Since the defendant cannot show that he was prejudiced by defense counsel’s alleged error, it was proper for the trial court to dismiss this issue without an evidentiary hearing.” Spreitzer II, 143 Ill.2d at 220, 157 Ill.Dec. at 471, 572 N.E.2d at 935. On habeas review, the district court agreed that Spreitzer had failed to meet either prong of the Strickland test for ineffective assistance and therefore his claim must fail.
3. Ineffective Assistance.
We are convinced that the Illinois courts did not make an unreasonable determination on this issue, and that Spreitzer is not entitled to habeas relief. Spreitzer’s trial counsel acted reasonably in not seeking to have Rudniek’s testimony admitted in an evidentiary hearing when this testimony was at such odds with Spreitzer’s testimony. In the face of consistent testimony by the two police officers, Ward made a reasonable strategic decision not to call inconsistent witnesses for Spreitzer’s position. Ward was presumably aware of the R. during the trial since R.’s husband, William, testified at sentencing. It is fair to say that Ward likely made a tactical decision not to call R. to the stand because her testimony was unhelpful at best. Pittman, 960 F.2d at 691 (citing United States v. Rush, 890 F.2d 45, 51 (7th Cir.1989)). At the post-conviction hearing, Spreitzer claimed that neighbors who allegedly had seen the arrest had told his family that the police had taken him into custody. However, Respondents correctly point out that when asked how she learned that Spreitzer was in custody, Spreitzer’s mother responded: “I had two officers come to the house on late Saturday night to question us about Ed, and that’s how we found out he was in jail.” Also, W.R. testified that he heard from Spreitzer’s mother that Spreitzer was charged with the murders. In the face of this inconsistent testimony, we are certain that not only did the Illinois courts reasonably determine that Ward was not ineffective, but that Ward’s performance at this hearing was not deficient.
Additionally, Spreitzer is unable to make the requisite showing of prejudice under Strickland. Because R.’s statement is contradictory to Spreitzer’s testimony, the statement could only have curtailed Spreitzer’s credibility and undermined his position that he was arrested and did not go voluntarily to the police station. Spreitzer has not supported his claims by presenting names of other witnesses who will testify in his defense or by identifying the specific evidence such witnesses could offer. He is unable to show that the result of the proceeding would have been different if Ward had investigated or located any other witnesses.
I. The Need for an Evidentiary Hearing?
Spreitzer argues that the district court, like the Illinois post-conviction court, should not have decided the merits of the ineffective assistance claim without conducting an evidentiary hearing. He argues that, despite the discrepancies between R.’s, Spreitzer’s, and the officers’ testimony, “[o]nly an evidentiary hearing in which R. is observed testifying will permit a fair determination of whether such testimony creates a reasonable likelihood that the trial judge would have concluded that Spreitzer was indeed arrested without probable cause.” Spreitzer relies on Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), overruled in other respects by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Townsend instructed: “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” 372 U.S. at 312-13, 83 S.Ct. at 757.
We review the district court’s denial of Spreitzer’s request for an evidentiary hearing on his ineffective assistance of counsel claim de novo. Kavanagh v. Berge, 73 F.3d 733, 737 (7th Cir.1996). This Court recently said that a district court “may employ a variety of measures in an effort to avoid the need for an evidentiary hearing” on disputed facts. Bracy v. Gramley, 81 F.3d 684, 693 (7th Cir.1996) (quoting Blackledge v. Allison, 431 U.S. 63, 81, 97 S.Ct. 1621, 1633, 52 L.Ed.2d 136 (1977)), cert. granted in part, — U.S. -, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997); see also Porter, 112 F.3d at 1317-18. On the other hand, “an evidentiary hearing is not necessary when the facts essential to the consideration of the constitutional issue are already before the court.” Id. (citing Matta-Ballesteros v. Henman, 896 F.2d 255, 258 (7th Cir.1990)).
Our cases have followed Townsend and its codification in the old 28 U.S.C. § 2254(d) to guide it in analyzing whether evidentiary hearings should have been granted. Kavanagh, 73 F.3d at 737; United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1138 (7th Cir.1990); see also Porter, 112 F.3d at 1317-18. We apply a two-step test to determine whether a petitioner is entitled to an evidentiary hearing. First, the petitioner must allege facts which, if proved, would entitle him to relief. Townsend, 372 U.S. at 312, 83 S.Ct. at 756-57; Pittman v. Warden, 960 F.2d 688, 691 (7th Cir.), cert. denied, 506 U.S. 880, 113 S.Ct. 229, 121 L.Ed.2d 165 (1992). If the petitioner satisfies this burden, he must then show that he did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding, in order to win an evidentiary hearing. Townsend, 372 U.S. at 312, 83 S.Ct. at 756-57.
Spreitzer has not alleged facts which would show that Ward was ineffective during the motion to quash arrest. The facts allegedly in dispute concern when Spreitzer made the incriminating statements to the police that gave them probable cause to arrest Spreitzer. The relevant facts to this inquiry were clearly before the trial court both at the motion to suppress and at the postconviction stage, and were carefully considered. Moreover, the Illinois Supreme Court carefully considered Spreitzer’s allegations and reviewed R.’s statement thoroughly. As we indicated above, putting Rudniek on the stand or even presenting her statement at the motion to quash would not have entitled Spreitzer to relief. Moreover, Ekl was similarly unable to come up with affidavits or statements by anyone else who could corroborate Spreitzer’s testimony about the arrest.
In any case, even if Spreitzer had alleged facts that would entitle him to relief, which we are certain that he has not, Spreitzer is unable to clear the second hurdle for winning an evidentiary hearing — he cannot show that he did not receive a full and fair hearing in state court. The Illinois trial court did hold a full and fair hearing on the motion to quash arrest and to suppress statements. The hearing involved testimony both from Spreitzer and from the police officers, and both parties had the opportunity to cross-examine the witnesses! The Illinois post-conviction court also considered all of the information that Ekl presented and reviewed R.’s statement. Nothing else was presented to support Spreitzer’s story. In sum, Spreitzer was afforded a fair opportunity to present this claim in state court proceedings. See Resnover v. Pearson, 965 F.2d 1453, 1457 (7th Cir.1992), cert. denied, 508 U.S. 962,113 S.Ct. 2935, 124 L.Ed.2d 685 (1993).
As we recently said in Porter, “The relevant question on habeas review ... is not so much whether a petitioner has had all the trappings of a full evidentiary hearing, but rather whether the petitioner received ‘careful consideration and plenary processing of [his claim,] including full opportunity for presentation of the relevant facts.’ ” Porter, 112 F.3d at 1317-18 (quoting Blackledge v. Allison, 431 U.S. 63, 82-83, 97 S.Ct. 1621, 1633, 52 L.Ed.2d 136 (1977)). Although, as in Porter, it is technically correct that Spreitzer did not receive all the trappings of a formal evidentiary hearing, we are certain that Spreitzer’s allegations have been more than carefully reviewed, and that he is not entitled to any more evidentiary hearings. Such hearings would, at best, be “little more than the proverbial fishing expedition.” Porter, 112 F.3d at 1318-19.
An evidentiary hearing will not change the outcome. The trial court, the post-conviction court, and the Illinois Supreme Court all had the relevant evidence before them to reasonably conclude that Spreitzer did not receive ineffective assistance of counsel. We also conclude that Spreitzer is unable to make the requisite showing under either prong of the Strickland analysis. We therefore affirm.
CONCLUSION
We Reverse the district court’s grant of habeas corpus on the sentencing issue, and Affirm the denial of the issues raised by Spreitzer on cross-appeal. The death sentence should be reinstated.
Teague is not a jurisdictional rule that federal courts must apply sua sponte, but, rather, if the State argues that the defendant is seeking the benefit of a "new rule," the court must apply Teague before considering the merits of a claim. Caspari, 510 U.S. at 389, 114 S.Ct at 952-53. Respondents in this case have indeed argued that Spreitzer is seeking the benefit of a new rule, and therefore we are free to consider Teague.
The district court opinion granting the writ of habeas corpus on the Simmons issue relied on a lower court opinion that was reversed in O’Dell. See United States ex rel. Spreitzer v. Peters, No. 92 C 2182, 1996 WL 48585 (N.D.Ill. Feb. 5, 1996), at *6 (citing O’Dell v. Thompson, No. 3:92 CV 480, slip op. at 59 (E.D.Va. Sept. 6, 1994)).
In Stewart, we addressed the Illinois Supreme Court's decision in Gacho. We found that Gacho relied entirely on state law in reaching its result, and that state law errors could not provide a basis for habeas relief. 60 F.3d at 302 (citing Gilmore v. Taylor, 508 U.S. 333, 344-46, 113 S.Ct. 2112, 2119, 124 L.Ed.2d 306 (1993)). We indicated that there was no hint in Gacho that the Illinois Supreme Court was deciding the case on Due Process grounds, that the Gacho court made the rule of the case prospective only, and that Gacho therefore prohibited its own application to Stewart's case. Id. We adopt that reasoning and conclusion in this case as well.
Although Spreitzer argues that Ramos is not necessarily inconsistent with either Gardner or Skipper, he misses the point of both the Teague analysis and the analysis under the new 28 U.S.C. § 2254(d). The question is not whether the cases can somehow be theoretically reconciled. The relevant questions, rather, are whether, under Teague, courts would have felt compelled by the precedent to act in certain ways, and whether, under the new § 2254(d)(1), a state court’s applications of a rule were at least minimally consistent with the facts and circumstances of the case.
Dockery's name typically appeared in pleadings indicating that the pleading was brought on Mr. Spreitzer’s behalf, “by his attorney, Peter J. Dockery, Public Defender for Du Page County, through his assistant Carol Anfinson” or “by Carol Anfinson his Deputy.” The end of the motions indicated that they were submitted from "Peter J. Dockery, Public Defender for Du Page County, by Carol Anfinson, Deputy Public Defender.”
In Spreitzer I, the Illinois Supreme Court described a class of cases that Illinois jurisprudence labels “per se" conflict cases. Spreitzer I, 123 Ill.2d at 14-16, 121 Ill.Dec. at 228-29, 525 N.E.2d at 34-35 (citing cases). In these cases, "certain facts about 5. defense attorney's status were held to engender, by themselves, a disabling conflict.” Spreitzer I, 123 Ill.2d at 14, 121 Ill.Dec. at 228, 525 N.E.2d at 34. The Illinois Supreme Court explained, "The justification for treating these conflicts as per se has been that the defense counsel in each case had a tie to a person or entity — either counsel's client, employer, or own previous commitments-which would benefit from an unfavorable verdict for the defendant.” Spreitzer I, 123 Ill.2d at 16, 121 Ill.Dec. at 229, 525 N.E.2d at 35; see also People v. French, 210 Ill.App.3d 681, 688, 155 Ill.Dec. 457, 569 N.E.2d 934, 939 (2d Dist.1991) ("Our supreme court has held that a per se conflict of interest exists in a criminal case if defendant’s attorney has a tie to an entity which would benefit from a verdict unfavorable to defendant.”) (citing Spreitzer I, 123 Ill.2d at 16, 121 Ill.Dec. at 229, 525 N.E.2d at 35).
The Illinois Supreme Court maintains that the Cuyler standard is limited to conflict cases involving multiple representation of criminal defendants. People v. Washington, 101 Ill.2d 104, 77 Ill.Dec. 770, 461 N.E.2d 393 (1984), cert. denied, 469 U.S. 1022, 105 S.Ct. 442, 83 L.Ed.2d 367 (cited in United States ex rel. Duncan v. O’Leary, 806 F.2d 1307, 1313 (7th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987)). Moreover, at least one federal court has also held that the Cuyler analysis is only applicable to cases of multiple representation. See Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996). Our Court, however, has said, "The precise scope of the category of claims to which the Cuyler standard applies has not been definitively stated by the Supreme Court.” O'Leary, 806 F.2d at 1312. In dicta, the Supreme Court has also indicated that it will treat categories of conflict-of-interest cases the same, without limiting its application to multiple representation conflict claims. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. Thus, we have routinely applied both the Cuyler and the Holloway standards to conflict of interest cases which are not multiple representation cases, and we do so here. See O’Leary, 806 F.2d at 1313; see also Cook, 45 F.3d at 393 (citing United States v. Levy, 25 F.3d 146, 153 (2d Cir.1994)).
The Illinois Supreme Court stated: [I]t would be ludicrous to disqualify Dockery or the Du Page County public defender’s office from handling any cases which were initiated during Dockery’s employment as an assistant State's Attorney and which were still pending at the time he became an assistant public defender or at the time he became the public defender. Such a rule would have the undesirable effect of discouraging public defender's offices from hiring competent former prosecutors. Spreitzer I, 123 Ill.2d at 19, 121 Ill.Dec. at 231, 525 N.E.2d at 37.
Townsend went on to indicate in a footnote to this point that the Court did "not mean to imply that the state courts are required to hold hearings and make findings which satisfy this standard, because such hearings are governed to a large extent by state law.” Townsend, 372 U.S. at 313 n. 9, 83 S.Ct. at 757 n. 9. Townsend held that a federal court must grant an evidentiary hearing to a habeas applicant if: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the factfinding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. 372 U.S. at 313, 83 S.Ct. at 757 (emphasis added). Spreitzer relies on parts three and six for his claim that he was denied a full and fair hearing by the state court. In Resnover v. Pearson, 965 F.2d 1453, 1456 (7th Cir.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 685 (1993), we recognized that Townsend was overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). In Keeney, the Supreme Court held that the “cause and prejudice” standard, not the fifth Townsend factor, is the correct standard to apply in excusing a habeas petitioner's failure to develop a material fact in state-court proceedings. Keeney, 504 U.S. at 8, 112 S.Ct. at 1719. Despite Keeney, our Court and other federal courts have continued to cite Townsend approvingly, indicating that Keeney overruled Townsend only to the extent of the fifth factor. See, e.g., Porter, 112 F.3d at 1317-18; Bracy v. Gramley, 81 F.3d 684, 693 (7th Cir.1996), cert. granted in part, - U.S. -, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997); Kavanagh v. Berge, 73 F.3d 733, 737 (7th Cir.1996). Because Spreitzer’s argument focuses on the third and sixth Townsend factors, we find no reason to apply the “cause and prejudice” standard from Keeney.
On appeal, Spreitzer does not claim that anything in either the old or the new § 2254 entitles him to an evidentiary hearing. The new provisions of § 2254(e)(2) provide that a federal court may not grant an evidentiary hearing on claims that a habeas petitioner could have developed in state court proceedings unless: (1) the claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court or (2) the petitioner shows a factual predicate that could not have previously been discovered through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A). Further, the applicant must show the proffered facts underlying the claim "would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B) (cited in Pitsonbarger v. Gramley, 103 F.3d 1293, 1298 (7th Cir.1996)). We said in Pitsonbarger that it is unclear whether the new rule of § 2254(e) may be applied retroactively. We therefore do not address it here, and apply the Townsend standard. In Burris v. Parke, 948 F.Supp. 1310, 1325-26 (N.D.Ind.1996), the district court determined that § 2254(e)(2) could be retroactively applied based on Lindh v. Murphy. If this section were retroactively applied, it is clear that Spreitzer cannot meet the requirements of the section and would not be entitled to an evidentiary hearing on this claim. See Porter, 112 F.3d at 1317 n. 8.
We have recently explained that ineffectiveness claims based on counsel’s performance at an argument for the suppression of evidence cannot be successful because the damage done by an inept attorney in this context does not constitute prejudice as defined by Strickland. United States v. Williams, 106 F.3d 1362, 1367 (7th Cir.1997) (citing Holman v. Page, 95 F.3d 481, 490-92 (7th Cir.1996)). If the question before us was whether Spreitzer was improperly arrested, it "would be largely academic by now.” Holman, 95 F.3d at 489 (citing Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)). As in Holman, there is no doubt that Spreitzer had a full and fair hearing in the trial court to litigate his Fourth Amendment claims. Spreitzer, like Holman, is trying to obtain relief by using the back door — bringing this claim as a Sixth Amendment challenge to his attorney’s effectiveness rather than as a futile Fourth Amendment claim. Although we are mindful of the grave import of the fact that this is a capital case, we nonetheless refuse to allow Spreitzer his requested habeas relief by letting him in through the back door.
Edward SPREITZER, Petitioner-Appellee/Cross-Appellant, v. Howard A. PETERS, III, Director, Illinois Department of Corrections, and Richard B. Gramley, Warden, Pontiac Correctional Center, Respondents-Appellants/Cross-Appellees.
Nos. 96-1467, 96-1520.
United States Court of Appeals, Seventh Circuit.
Submitted June 6, 1997.
Decided Aug. 11, 1997.
Before POSNER, Chief Judge, and CUMMINGS, BAUER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD and EVANS, Circuit Judges.
[OPINION BY ROVNER, Circuit Judge, type=rehearing]
ROVNER, Circuit Judge,
with whom DIANE P. WOOD, Circuit Judge, joins, dissenting from the denial of rehearing en banc.
I dissent from the denial of rehearing en banc in this case because the panel’s opinion emasculates the rule of Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and misuses our holding in United States v. Fish, 34 F.3d 488 (7th Cir.1994). The effect of the panel’s opinion is to eliminate virtually all conflict of interest claims a defendant could bring. Holloway requires the trial court to adequately inquire into any conflict of interest of which the court becomes aware. In Fish, we held that in conducting a Holloway inquiry, a trial court is entitled to rely on the representations of counsel regarding the absence of a conflict. By now holding that a trial court is entitled to rely on a potentially conflicted counsel’s silence in finding the absence of a conflict, the panel’s opinion has all but eliminated the Holloway inquiry. See Spreitzer v. Peters, et al., 114 F.3d 1435, 1448-52 (7th Cir.1997).
The trial court here conducted a Holloway inquiry upon first learning of the potential conflict and ordered that Dockery, a prosecutor-turned-public defender who had participated in the decision to indict Spreitzer, not participate in Spreitzer’s defense. Although Dockery’s name later began to appear on the defendant’s pleadings, the court conducted no further inquiry in the face of this apparent violation of its earlier order. I believe the appearance of Dockery’s name on the pleadings constitutes prima facie evidence of his involvement in the case, requiring the trial court to inquire further under Holloway. The panel’s opinion assumes that the public defender’s silence at this juncture indicates as a matter of law that there was no conflict of interest. That conclusion is not supported by Fish, which merely held that the trial court could rely on counsel’s representations in conducting the Holloway inquiry. In effect, the panel’s opinion takes a judge’s responsibility and places it solely in the hands of a possibly conflicted attorney. We would hope that officers of the court would be forthcoming and honorable, but sadly, experience has shown us that that is not always the case.
To assume as a matter of law that the Public Defender, whose name appears on the defendant’s briefs, has no involvement in a case conducted by his staff is incongruous. The Public Defender is, after all, ultimately responsible to both the public and the court for these filings. I cannot be certain that Dockery was involved in Spreitzer’s defense, but I am certain that the appearance of Dockery’s name on Spreitzer’s pleadings should have triggered a second Holloway inquiry. In my view, this case should be remanded so that the district court can assure itself that Spreitzer’s defense was not compromised by a conflict of interest.
Edward SPREITZER, Petitioner-Appellee Cross-Appellant, v. Howard A. PETERS, III, Director, Illinois Department of Corrections; and Richard B. Gramley, Warden, Pontiac Correctional Center, Respondents-Appellants Cross-Appellees.
Nos. 96-1467, 96-1520.
United States Court of Appeals, Seventh Circuit
Sept. 15, 1997.
ORDER
In the last sentence of our opinion issued on May 23, 1997, we reversed the district court’s grant of habeas corpus on the issue of sentencing and affirmed the denial of the issues raised by Mr. Spreitzer on cross-appeal. Spreitzer v. Peters, 114 F.3d 1435, 1458 (7th Cir.1997). We also stated that “[t]he death sentence should be reinstated.” Id. In his reply brief, Spreitzer requested that, if we ultimately ruled against Spreitzer, the case be remanded to the district court for its consideration of those issues not addressed in the district court’s memorandum opinion and order of January 31, 1996. Reply Brief of Cross-Appellant at 15. In his Petition for Rehearing with Suggestion for Rehearing En Bane, Spreitzer requested that we modify our opinion to remand the ease with instructions that the district court consider those issues it had previously left unresolved. Petition for Rehearing at 13.
On August 11, 1997, the Court denied Spreitzer’s Petition for Rehearing with Suggestion for Rehearing En Bane. Spreitzer v. Peters, 118 F.3d 1211, 1212 (7th Cir.1997)(en banc). On August 15, 1997, Spreitzer filed a “Motion for Clarification of Order Denying Rehearing,” wherein Spreitzer again asks us to modify our opinion of May 23, 1997 to remand the case with instructions for the district court to consider those claims not previously resolved.
We have previously stated that “[t]he better practice in habeas corpus death cases is for the judge to rule on all the grounds presented in the petition, so that the appellate court can decide the entire case in one round, without the interminable delays that characterize posteonviction proceedings in such eases.” Stewart v. Peters, 958 F.2d 1379, 1388 (7th Cir.), modified, 958 F.2d at 1388 (7th Cir.), cert. denied, 506 U.S. 883, 113 S.Ct. 239, 121 L.Ed.2d 173 (1992). In Stewart, although the parties failed to raise the issue of the need for a remand to consider unresolved issues in their briefs or at oral argument, they did raise it in the petition for rehearing and in the answer thereto. Id. The Court modified its decision and remanded the case “for further proceedings consistent with our opinion, thus leaving it to the district judge to decide in the first instance what further proceedings are proper in this case.” Id.
We believe that the course followed in Stewart is appropriate for this case. Accordingly, Spreitzer’s Motion for Clarification is GRANTED to the extent that the Court’s opinion of May 23,1997 is hereby modified to reflect that the case is remanded to the district court for further proceedings consistent with our decision. Pursuant to our opinion, the reinstatement of Spreitzer’s death sentence remains in effect, with the only change being that it is reinstated pending the district court’s determination of any remaining issues on remand. The petition for rehearing having been denied, the mandate shall issue forthwith.
Edward SPREITZER, Petitioner-Appellant, v. James M. SCHOMIG, Warden, Respondent-Appellee.
No. 99-2474.
United States Court of Appeals, Seventh Circuit.
Argued May 17, 2000
Decided July 11, 2000
Rehearing and Rehearing En Banc Denied Aug. 17, 2000
Richard E. Cunningham (argued), Chicago, IL, Gary Prichard, Glen Ellyn, IL, for Edward Spreitzer, Petitioner-Appellant.
William L. Browers, Colleen M. Griffin (argued) Office of the Attorney General, Chicago, IL, for James M. Schomig.
Before BAUER, COFFEY and KANNE, Circuit Judges.
[OPINION BY KANNE, Circuit Judge. type=majority]
KANNE, Circuit Judge.
Edward Spreitzer is under a sentence of death. He appeals the dismissal of his habeas corpus petition that was remanded to the district court following our decision in Spreitzer v. Peters, 114 F.3d 1435 (7th Cir.1997). First, he claims that the district court erred in finding that a procedural default barred certain ineffective assistance of counsel claims. Second, he claims that the court erred by refusing to grant him evidentiary hearings to determine whether he was denied the effective assistance of counsel when his attorney failed to develop mitigating evidence of brain damage or investigate his good prison conduct. Finding that Spreitzer has procedurally defaulted his claims, we affirm.
I. HISTORY
On March 4, 1986, in an Illinois state court, Spreitzer was found guilty of the aggravated kidnapping and murder of Linda Sutton. He previously had pleaded guilty to the murders of four other individuals and admitted involvement in four more murders. The very gruesome facts that underlie these offenses, which include a string of kidnappings, tortures, rapes and murders, are recounted thoroughly in the Illinois Supreme Court’s opinion on Spreitzer’s direct appeal. See People v. Spreitzer, 123 Ill.2d 1, 121 Ill.Dec. 224, 525 N.E.2d 30, 32-33 (1988) (“Spreitzer I”). On the basis of his offenses, the State of Illinois requested that Spreitzer receive the death penalty.
Spreitzer received a sentencing hearing before a jury to determine if he was eligible to receive the death penalty. At the hearing, the jury heard testimony from Dr. Kent Mohr, a court-appointed clinical psychologist, that Spreitzer had an IQ of 76, had a “schizoid personality,” related to people in an inferior way and responded to his environment in an impulsive way. Mohr had previously met with Spreitzer and performed diagnostic tests, including a Bender Visual Gestalt test, but Mohr did not have Spreitzer submit to a complete neurological examination, which would have included an MRI and blood tests. Spreitzer testified on his own behalf that he knew his actions were wrong, that he would have reported them eventually and that he felt at peace in prison. The jury also heard evidence of the nature of Spreitzer’s conduct and of his age and previous guilty pleas. The jury found Spreitzer eligible to receive the death penalty, and the circuit court imposed a sentence of sixty years for kidnapping Sutton and a death sentence for her murder.
Spreitzer timely filed a direct appeal of his conviction, in which he alleged a conflict of interest in the public defender’s offiqe as well as a number of issues related to sentencing. However, at this time, Spreitzer did not argue that his sentencing counsel was ineffective. Spreitzer argued that he was deprived of a fair sentencing hearing by improper cross-examination made by the prosecutor. He claimed that the prosecutor cross-examined him about “devilworshipping” in violation of a stipulation against so doing, improperly mentioned the victims’ families, attempted to elicit sympathy for the victims, appealed to the fears of jurors, argued that Spreitzer was racially prejudiced, attempted to dehumanize him, speculated about his and co-defendant Robin Gecht’s character and personality traits and misstated the applicable burden of proof. See Spreitzer I, 121 Ill.Dec. 224, 525 N.E.2d at 43. The Illinois Supreme Court dismissed these claims on a finding that these errors were individually and cumulatively harmless and that the issue of “devil worship” had been waived because the defendant did not object to it at the sentencing hearing, see id. at 44, but reduced Spreitzer’s kidnapping sentence from sixty years to the statutory maximum thirty years. See id. at 50. Following the dismissal of his direct appeal, the United States Supreme Court denied Spreitzer’s petition for certiorari. See Spreitzer v. Illinois, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263 (1988).
Spreitzer then filed a six-count pro se petition for post-conviction relief with the state trial court, claiming inter alia that he was deprived of the right to effective counsel at sentencing. The court appointed counsel to represent Spreitzer, and Spreitzer’s appointed counsel presented each of Spreitzer’s claims at a hearing held on his petition, but did not attach affidavits to the petition alleging additional evidence that would show ineffective assistance of sentencing counsel. The trial court denied Spreitzer’s petition. The court did not hold an evidentiary hearing on the issue whether the ineffective assistance of sentencing counsel claims had been waived by not being raised on direct appeal. Spreitzer appealed this denial to the Illinois Supreme Court, raising three claims, including (1) that he had not been provided with effective counsel for the post-conviction relief hearing because his appointed counsel failed to append evidence of sentencing counsel’s ineffective investigation, (2) that he had been deprived of effective counsel during his pretrial motion to quash his arrest and (3) that the sentencing court should have permitted the jury to hear Spreitzer’s counsel present an alternative sentence of life imprisonment without parole. See People v. Spreitzer, 143 Ill.2d 210, 157 Ill.Dec. 467, 572 N.E.2d 931 (1991) (“Spreitzer II”). Spreitzer did not reiterate the claim made before the state trial court that his sentencing counsel was ineffective, but he did argue in his reply brief that the court had incorrectly applied the waiver doctrine to these claims.
The Illinois Supreme Court held that the issues raised under the rubric of ineffective assistance of counsel were not raised on direct appeal, which meant that waiver or res judicata applied. For this reason, the merits of Spreitzer’s claims on appeal were irrelevant; the only claim Spreitzer could raise about effectiveness was whether his counsel should have researched issues concerning waiver or res judicata. Because Spreitzer did not argue that waiver would not bar these claims, the Illinois Supreme Court found no prejudice in the counsel’s failure to do so and denied these claims. See id. at 936. The court also found that the sentencing court need not have instructed the jury about an alternative sentence of life imprisonment without the possibility of parole. See id. at 937. On these bases, the Supreme Court denied Spreitzer’s petition. See id. at 937. The United States Supreme Court again denied Spreitzer’s petition for certiorari. See Spreitzer v. Illinois, 502 U.S. 985, 112 S.Ct. 594, 116 L.Ed.2d 618 (1991).
Spreitzer then filed a petition for habeas corpus relief in federal court under 28 U.S.C. § 2254. In his petition, Spreitzer raised six issues, including allegations he previously made of prosecutorial misconduct, the sentencing court’s wrongful failure to instruct on an alternative sentence, a conflict of interest in his representation, ineffective assistance of pretrial counsel on a motion to quash and of sentencing counsel (but not of post-conviction counsel) and the unconstitutionality of the death penalty. The district court denied all Spreitzer’s claims unrelated to sentencing, but held that the state trial court should have given Spreitzer’s proposed instruction on the alternative sentence and granted Spreitzer’s petition to allow resentencing. Because it vacated Spreitzer’s sentence, the district court declined to rule on sentencing issues unrelated to the instruction issue. On appeal, we reversed the district court on the instruction issue, finding that the state trial court was not required to allow the jury to hear about alternative sentences, but affirmed the district court’s denial of Spreitzer’s other claims. We remanded the habeas petition to resolve Spreitzer’s sentencing claims that the district court left undecided. See Spreitzer v. Peters, 114 F.3d 1435, 1447 (7th Cir.1997). In addition, we found that Spreitzer’s death sentence should be reinstated.
On remand, the district court confronted two issues: prosecutorial misconduct at sentencing and ineffective assistance of sentencing counsel. The district court found that the former claim had been correctly resolved by the Illinois Supreme Court on direct appeal and that Spreitzer had waived his ineffective assistance of sentencing counsel claims. The court found waiver because the Illinois Supreme Court had found that the inadequate assistance claims should have been made on direct appeal, which constituted an independent and adequate ground sufficient to justify dismissal. Nonetheless, the district court considered both of these claims on their merits. The court found that Spreitzer’s claims of ineffective assistance of counsel were meritless because in each case Spreitzer had failed to make an adequate showing of prejudice. The court refused to grant Spreitzer an evidentiary-hearing to determine whether the evidence that he presented established a deficiency in his prior representation. Therefore, the district court denied both remaining claims and dismissed his habeas corpus petition.
Spreitzer now claims that the district court erred in finding his ineffective assistance of counsel claims waived. Spreitzer does not appeal the district court’s denial of his prosecutorial misconduct claim. Spreitzer contends that the district court erred by refusing to grant him an evidentiary hearing on his ineffective assistance claims because its finding of no prejudice was speculative without the benefit of an evidentiary hearing.
II. Analysis
We review de novo Spreitzer’s allegations of constitutional error in the context of a habeas petition. See Crivens v. Roth, 172 F.3d 991, 995 (7th Cir.1999). Because Spreitzer filed his petition prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) Pub.L. No. 104-132, 110 Stat. 1214 (1996), we consider his arguments under preAEDPA law. See Lieberman v. Washington, 128 F.3d 1085, 1091 (7th Cir.1997). We apply a presumption of correctness to state court determinations of factual issues. See Porter v. Gramley, 112 F.3d 1308, 1316 (7th Cir.1997).
A. Waiver
Prior to reaching the merits of any constitutional claim raised in his habeas corpus petition, we review the district court’s determination that Spreitzer defaulted his claims. A federal court must ensure that the habeas corpus petitioner has overcome two procedural hurdles, exhaustion and procedural default, before reaching the merits of his claim. See Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.1988). “Failure to raise all claims during the course of the state court proceedings bars consideration of those claims not raised.” Jones v. Washington, 15 F.3d 671, 674 (7th Cir.1994), overruled on other grounds by Hogan v. McBride, 74 F.3d 144, 147 (7th Cir.1996). Likewise, before bringing his claims in a federal habeas proceeding, a prisoner must first raise his claims during the course of the state proceedings in order to avoid procedural default. Henderson, 859 F.2d at 496. The district court dismissed Spreitzer’s claims on the ground that Spreitzer had defaulted procedurally by failing to raise these claims prior to his state post-conviction petition. On appeal, the state also argues that these claims were waived because Spreitzer failed to exhaust his available state court remedies on these claims. Because we agree with the state that Spreitzer’s claims are barred by his failure to exhaust available state court remedies, we do not rule on whether the district court correctly found that his federal claims were barred on adequate and independent state grounds.
1. Exhaustion
The state presents an alternative ground for the dismissal of Spreitzer’s ineffective assistance claims, arguing that federal courts should not review Spreitzer’s petition because he failed to exhaust all available state court remedies. Spreitzer raised his remaining claims of the ineffectiveness of sentencing counsel at the post-conviction proceeding, but changed tactics on appeal to the Illinois Supreme Court, contending that his post-conviction counsel, rather than his sentencing counsel, failed to provide effective representation. For this reason, the state contends that the Illinois Supreme Court was never presented with the issue of the ineffectiveness of sentencing counsel.
Federal law requires that state prisoners give state courts a fair opportunity to act on their claims before bringing habeas claims in federal court. See 28 U.S.C. § 2254(c); see also O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1998); Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir.1998). The requirement that state courts have the first opportunity to cure a claim of continued confinement in an unconstitutional fashion stems from the understanding that state courts are equally obliged to follow federal law and from the desire for comity between state and federal court systems. See O’Sullivan, 526 U.S. at 844-45, 119 S.Ct. 1728; Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A “fair presentment” of a petitioner’s claims requires that a petitioner give state courts “a meaningful opportunity to pass upon the substance of the claims [petitioner] later presses in federal court.” Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.1999).
In Howard, we faced a very similar claim to Spreitzer’s. Howard, 185 F.3d at 725. The petitioner initially claimed ineffective assistance of sentencing counsel in his postconviction petition before the state trial court. Following the dismissal of this petition for insufficient evidence, the petitioner changed tactics and argued only the ineffective assistance of post-conviction counsel to the state appellate courts, without pursuing the ineffective assistance of sentencing counsel claims. The state appellate courts affirmed denial of the post-conviction relief, so he filed a federal habeas petition, which was denied by the district court. We affirmed the dismissal of the petitioner’s federal habeas claim, holding that we were barred from reviewing the petitioner’s claim because “by changing the basis of his argument between the trial court and the appellate court, [the petitioner] did not fairly present the question of ineffective assistance of trial counsel to the Illinois Appellate Court. Accordingly, he has procedurally defaulted that claim.” Id.; see also Momient-El v. DeTella, 118 F.3d 535, 540-41 (7th Cir.1997) (finding that failure to appeal issues raised in an Illinois post-conviction proceeding results in procedural default).
Spreitzer’s post-conviction appellate counsel made the same error as in Howard. His postconviction counsel argued that Spreitzer’s sentencing counsel failed to represent him effectively by insufficiently developing evidence of organic brain defects or of Spreitzer’s good conduct while incarcerated. However, on appeal to the Illinois Supreme Court, Spreitzer’s appellate counsel jettisoned these arguments, choosing instead to argue that the ineffectiveness of Spreitzer’s post-conviction counsel required the Illinois Supreme Court remand Spreitzer’s case to the trial court to appoint new post-conviction counsel. The court denied this claim because Spreitzer failed to present evidence that his post-conviction counsel had actually been ineffective or that this ineffective representation had prejudiced him. See Spreitzer II, 157 Ill.Dec. 467, 572 N.E.2d at 936.
Spreitzer did not present the complaints that he raised in his federal habeas corpus petition to the Illinois Supreme Court. He did not brief this issue to the Illinois Supreme Court, nor did the Supreme Court address sua sponte whether he was denied effective representation at sentencing by his counsel’s failure to investigate fully matters relating to organic brain defects or his prison conduct. Thus, the Illinois Supreme Court never had a fair opportunity to rule on these claims, and we are barred from considering them here unless Spreitzer establishes that his case meets one of the exceptions to procedural default that we set forth below.
2. Fair Presentment
Spreitzer argues that his claims should not be barred for failure to exhaust his administrative remedies. He contends that the Illinois Supreme Court was fairly presented with the question of the competence of sentencing counsel because he raised this issue in his petition for postconviction relief, and he believes that the lili-nois Supreme Court reviewed the decision of the post-conviction trial court in its dismissal of the claim by finding that the trial court’s dismissal was based on waiver and res judicata. According to Spreitzer, both parties briefed the question whether the district court ruled correctly on the remaining claims at the postconviction proceedings, and the Illinois Supreme Court’s affirmance of the post-conviction court’s dismissal thus constitutes a fair presentment of these claims.
Spreitzer’s argument misstates the procedural posture under which the Illinois Supreme Court analyzed the post-conviction court’s holding. In his opening brief to the Supreme Court, Spreitzer argued that his post-conviction counsel failed to provide effective representation because he did not attach appendices containing new evidence to Spreitzer’s post-conviction petition and asked that the Supreme Court remand the claim to postconviction court for appointment of new counsel. The state responded that this failure could not constitute prejudice because the post-conviction court based its holdings on these issues on waiver or res judicata, rather than on a failure to append additional evidence, and for this reason, it was unnecessary to remand to appoint new counsel. Spreitzer answered in his reply brief that the post-conviction court’s findings of waiver and res judicata were improper because Spreitzer’s post-conviction claims were based on evidence not within that court’s record. The Illinois Supreme Court, in reviewing Spreitzer’s ineffective assistance of counsel claim, first noted that “[t]he record in this case shows that [Spreitzer’s] post-conviction counsel consulted with him, examined the record and conducted an investigation,” meeting all the Illinois requirements for effective post-conviction counsel. Spreitzer II, 157 Ill.Dec. 467, 572 N.E.2d at 936. The court also noted that post-conviction counsel argued all the counts raised in Spreitzer’s pro se complaint, but because “[t]he reasons for the trial court’s dismissal ... were res judicata and waiver ... [a]n additional investigation, or addition of supporting documents to the record, would have been irrelevant to the issue of whether or not the allegations in the petition were res judicata or waived.” Id. For this reason, the Illinois Supreme Court found that Spreitzer had failed to prove that his postconviction counsel’s actions had prejudiced him. See id.
Contrary to Spreitzer’s contentions, the Illinois Supreme Court was not presented with the issue of sentencing counsel’s effectiveness during the course of this interchange. The issue briefed to the court by the parties was the effectiveness of post-conviction counsel, not sentencing counsel. The court held that postconviction counsel was effective and, alternatively, that Spreitzer had not shown prejudice caused by his representation. In its finding that no prejudice had been shown, the Supreme Court noted that the hearing court based its dismissal on waiver and res judicata. However, the Supreme Court did not review the hearing court’s decision because the substance of its decision, whether Spreitzer should have raised claims of ineffective sentencing counsel sooner, was irrelevant to the question of prejudice caused by post-conviction counsel. Moreover, the Illinois Supreme Court did not reach the question whether the post-conviction court correctly applied the waiver doctrine.
The only presentment of the question of sentencing counsel’s effectiveness came in Spreitzer’s reply brief as a part of his argument that the post-conviction court erred in applying the waiver doctrine, which in turn was argued in the context of Spreitzer’s contention that postconviction counsel was ineffective. Illinois Supreme Court Rule 341(e)(7) deems arguments presented for the first time in a reply brief waived, see People v. Brown, 169 Ill.2d 94, 214 Ill.Dec. 257, 660 N.E.2d 964, 970 (1995). Although Supreme Court Rule 341(g) allows appellants to respond in their reply brief to any question raised in appellee’s answer, see Oliveira v. Amoco Oil Co., 311 Ill.App.3d 886, 244 Ill.Dec. 455, 726 N.E.2d 51, 56 (2000), the state never raised the question of the merits of the post-conviction court’s decision in its briefing. The state merely noted that the court’s grounds for ruling did not allow a finding of prejudice. For this reason, the Illinois Supreme Court was never directly presented with the question whether Spreitzer’s original sentencing counsel provided effective representation, or even whether the postconviction court erred in dismissing these claims on res judicata or waiver grounds. As such, the tortured process that Spreitzer suggests the Illinois Supreme Court should have undergone to reach these claims does not constitute a fair presentment of them to the Illinois Supreme Court.
8. Futility
Spreitzer also argues that he was not required to claim ineffective assistance of sentencing counsel before the Illinois Supreme Court because any such action would have been futile. Spreitzer claims that because his post-conviction counsel failed to append affidavits to his postconviction petition, the Illinois Supreme Court would have dismissed this claim as insufficiently substantiated. For this reason, he argues that he had no likelihood of success on his claim and need not have brought it to the Illinois Supreme Court.
Illinois courts routinely dismiss claims for post-conviction relief that lack support in the record or supporting affidavits for the proposition that the petitioner’s constitutional rights have been violated. See People v. Erickson, 183 Ill.2d 213, 233 Ill.Dec. 319, 700 N.E.2d 1027, 1034 (1998); see also People v. Turner, 187 Ill.2d 406, 241 Ill.Dec. 596, 719 N.E.2d 725, 730 (1999). The Supreme Court has provided an exception to the exhaustion doctrine in those instances where “the corrective process is so clearly deficient as to render futile any claim to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). However, we have interpreted the phrase “corrective process” to refer only to the post-conviction appellate procedure provided by a state. See, e.g., United States ex rel. Johnson v. McGinnis, 734 F.2d 1193, 1197 (7th Cir.1984) (analyzing the Illinois state mandamus procedure to determine whether its deficiencies allow futility claim). Therefore, “the pertinent question is not whether the state court would be inclined to rule in the petitioner’s favor, but whether there is any available state procedure for determining the merits of petitioner’s claim.” White v. Peters, 990 F.2d 338, 342 (7th Cir.1993).
Because Spreitzer’s post-conviction counsel failed to append additional affidavits to the record, the Illinois Supreme Court probably would have dismissed Spreitzer’s claim as unsubstantiated without reaching the merits. Nonetheless, Spreitzer does not contest that Illinois maintained a process to present such claims. As such, he presents no colorable argument that it would have been futile to present this argument before the Illinois Supreme Court. We do not believe that such action would have been futile in the sense required by Duckworth, and we reject Spreitzer’s contention that he need not have presented these claims on the basis of this purported futility.
A Exceptions to Procedural Default
Although we have found Spreitzer to have defaulted his habeas claims, we may excuse his default and review his claims under two circumstances. Either Spreitzer must show cause and prejudice for his failure to exhaust his state claims, or he must show that a failure to review these claims results in a fundamental miscarriage of justice. See Howard, 185 F.3d at 726; Steward v. Gilmore, 80 F.3d 1205, 1211 (7th Cir.1996); see generally Barksdale v. Lane, 957 F.2d 379, 385 (7th Cir.1992) (requiring “some external objective factor, such as interference by officials or unavailability of the factual or legal basis for a claim” to show cause). Spreitzer has failed to present any evidence of any external cause that prevented him from raising his ineffective assistance claims before the Illinois Supreme Court, nor has he made an attempt to show actual innocence, as opposed to legal innocence, as required to support the finding of a fundamental miscarriage of justice. See Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Therefore, we find no reason to excuse Spreitzer from the requirement that he first exhaust his available state remedies. We are barred from reviewing the claims in Spreitzer’s habeas corpus petition, and we will affirm the district court’s dismissal of the petition.
B. Denial of Evidentiary Hearings
Finally, Spreitzer contends that the district court erred in denying him the opportunity to conduct an evidentiary hearing on his ineffective assistance of sentencing counsel claims. The district court did not express the reasons for his denial, but in reaching the merits of Spreitzer’s claim, the court noted that Spreitzer would be unable to demonstrate prejudice caused by the truth of either claim in the face of overwhelming evidence against him. Spreitzer appeals these denials, claiming that under Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he was entitled to a determination of both ineffective assistance and prejudice before denying his motion for an evidentiary hearing.
“[A] federal evidentiary hearing is required if a habeas petitioner alleges facts which, if proved, would entitle him to relief and the state courts — for reasons beyond the control of the petitioner — never considered the claim in a full and fair hearing.” Porter, 112 F.3d at 1317; see also Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Under pre-AEDPA law, if a petitioner has failed to adequately develop material facts in previous state court proceedings, we again apply the “cause and prejudice” standard to determine whether an evidentiary hearing is warranted. See Resnover v. Pearson, 965 F.2d 1453, 1456-57 (7th Cir.1992); see also Keeney v. Tamayo-Reyes, 504 U.S. 1, 8, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). To receive a federal evidentiary hearing, a petitioner must show both good cause for failing to submit the required affidavits in state court and that he has suffered actual prejudice. See Wright v. Gramley, 125 F.3d 1038, 1043-44 (7th Cir.1997); Lemons v. O’Sullivan, 54 F.3d 357, 360 (7th Cir.1995).
The district court dismissed Spreitzer’s habeas petition for an evidentiary hearing without comment on Spreitzer’s request for an evidentiary hearing. However, in its memorandum order of dismissal, the court reached the merits of Spreitzer’s claims. The court found that Spreitzer had not shown actual prejudice caused by the claimed errors in the face of the overwhelming evidence presented to the jury in favor of Spreitzer’s eligibility for execution. Spreitzer claims that this finding of no prejudice is mere speculation without the benefit of an evidentiary hearing to determine whether prejudice existed. However, this argument reverses the burden of proof required by a petitioner to receive an evidentiary hearing. To receive a hearing, Spreitzer was required to append affidavits alleging evidence of actual prejudice to the district court. Spreitzer did not append affidavits alleging sufficient evidence of prejudice, so the court found that Spreitzer failed to make his requisite showing.
Spreitzer presented evidence which suggests that his sentencing counsel did not pursue adequately evidence of organic brain defects and Spreitzer’s good conduct while incarcerated. He claims that this evidence should have been presented to the jury at his sentencing. However, at Spreitzer’s sentencing, counsel presented Dr. Mohr to provide evidence of Spreitzer’s psychological state, and Spreitzer testified on his own behalf about his conduct in prison. In the face of the overwhelming evidence demonstrating the grisly nature of his crimes, the jury favored the evidence provided by the state over that provided by Spreitzer. Spreitzer has presented no novel evidence that would tend to upset this balance, so we agree with the district court that Spreitzer has not demonstrated that the state court’s failure to hold an evidentiary hearing caused him actual prejudice. We affirm the district court’s denial of Spreitzer’s request for an evidentiary hearing.
III. Conclusion
Because Spreitzer failed to present his postconviction claims properly to the Illinois Supreme Court, we are barred from reviewing these claims. Because he has defaulted all his claims and failed to show cause for this default or prejudice arising from it, we Affirm the decisions of the district court and Dismiss Spreitzer’s petition.
AEDPA § 104 codified the "cause and prejudice” test applied in Keeney v. Tamayo-Reyes, 504 U.S. 1, 8, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), adding 28 U.S.C. § 2254(e)(2), which dramatically restricts the ability of district courts to hold an evidentiary hearing. See Williams v. Taylor, - U.S. -, 120 S.Ct. 1479, 1488-89, 146 L.Ed.2d 435 (2000). However, in Spreitzer v. Peters, 114 F.3d at 1456, we applied pre-AEDPA law to determine whether other of Spreitzer's claims merited an evidentiary hearing, and we continue to believe it unnecessary to apply § 2254(e)(2) retroactively to Spreitzer’s petition.