In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3138
H ENRY G RIFFIN,
Petitioner-Appellant,
v.
G UY P IERCE,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 5024—James B. Zagel, Judge.
A RGUED M AY 27, 2010—D ECIDED S EPTEMBER 22, 2010
Before B AUER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. Henry Griffin was convicted by
a jury of murder, solicitation to commit murder, and
conspiracy to commit murder. A judge sentenced him
to death. Griffin filed two post-conviction petitions in
Illinois state courts, to no avail. He then filed a petition
for writ of habeas corpus in the district court, claiming
that the State knowingly used perjured testimony and
that his sentencing counsel was ineffective. The district
2 No. 09-3138
court denied his petition but granted a certificate of ap-
pealability on these two claims. Griffin appealed, and
we grant the petition on the Strickland claim only.
I. Background
A. Underlying Criminal Case
The recitation of the facts pertaining to Griffin’s under-
lying conviction is taken from the Illinois Supreme
Court’s opinion in People v. Griffin, 592 N.E.2d 930,
931-32 (Ill. 1992) (Griffin I), cert. denied, 507 U.S. 924 (1993):
On June 21, 1984, the body of Carl Gibson was found
near the 73rd Street exit ramp off of the Chicago Sky-
way. He had been shot four times at close range
several hours earlier.
At the time, the Chicago Police Department and the
State’s Attorney’s Office of Cook County were involved
in an investigation of a major drug operation located on
Chicago’s south side that targeted Charles Ashley, a
drug dealer whose activities yielded an estimated
$3 million annually. Gibson was employed in Ashley’s
drug operation.
Darryl Moore, who was also employed by Ashley’s drug
operation, was arrested in late July 1984 on drug and
unlawful use of weapons charges. While in jail, Moore
contacted Detective Michael Pochordo who was with
the Violent Crimes Division of the Chicago Police De-
partment. Moore claimed to have information about the
Gibson murder. Pochordo set up a meeting with Moore
No. 09-3138 3
and representatives of the State’s Attorney’s Office. At a
meeting on August 7, 1984, Moore advised members of
the State’s Attorney’s Office that Griffin was involved
in the Gibson murder. So the State’s Attorney’s Office
requested permission for a consensual overhear device
for use in Moore’s contact with Griffin. The Circuit
Court of Cook County approved an application for the
overhear device, and on August 9, 1984, a tape-recording
device was assembled at the State’s Attorney’s Office
and used to record a telephone conversation between
Moore and Griffin. Moore recognized Griffin’s voice
because he had known him through their “enforcer” work
and had spoken to him at least 100 times. During this
taped conversation, Griffin implicated himself in the
Gibson murder.
Griffin was arrested and taken into custody. James
Allen was also arrested in connection with the murder,
and the two were placed in separate interview rooms.
Assistant State’s Attorney Neil Cohen was introduced to
Griffin and read him his Miranda warnings. Griffin
asked whether Cohen had talked to Allen and, upon
hearing that Allen had given a statement, Griffin waived
his Miranda rights and confessed to his participation in
Gibson’s murder. Griffin’s confession revealed the fol-
lowing facts: Ashley approached Griffin and asked him
if he would kill Gibson for $2,500. Ashley wanted
Gibson eliminated because he suspected that Gibson was
secretly passing information to police. The offer was
made and accepted in the presence of Allen. Griffin and
Allen went to Moore’s apartment to obtain a gun. Moore
was one of Ashley’s “enforcers” and he and Griffin had
4 No. 09-3138
worked together in the past. Moore gave Griffin a
.38-caliber revolver, and Griffin and Allen left
the apartment and took Griffin’s family members home.
Allen waited in the car while Griffin entered the
home. Then Griffin returned to the car accompanied by
Gibson. Allen drove, Gibson sat in the passenger seat,
and Griffin sat in the back seat. Allen drove onto the
Chicago Skyway at 89th Street, proceeding southbound.
When he reached a toll plaza, he turned around and
proceeded northbound. While driving northbound on
the Skyway, Griffin shot Gibson four times in the
back of the head with a .38-caliber revolver. Allen then
exited the Skyway at 73rd Street and stopped the car on
the exit ramp. Griffin pulled Gibson’s body out of the
car. The next day Griffin gave the murder weapon to
Ashley. Griffin and Allen disposed of the rental car used
in the murder. Ashley paid Griffin in cash and cocaine.
Griffin was indicted along with codefendants Ashley and
Allen for conspiracy to commit murder, solicitation to
commit murder, and murder. Prior to trial, the court found
Griffin fit to stand trial and denied his motion to suppress
evidence seized pursuant to a search warrant. In June 1985,
all three defendants were tried simultaneously—Griffin
and Allen by separate juries, and Ashley by Judge Earl
Strayhorn. The prosecution’s chief evidence against Griffin
consisted of the taped telephone conversation between
Griffin and Moore; an unsigned, court-reported statement
of Griffin; Assistant State’s Attorney Cohen’s testimony
about his conversations with Griffin; and Moore’s testi-
mony.
No. 09-3138 5
B. Additional Facts
The prosecutor offered into evidence the tape recording
of the August 9, 1984, telephone conversation between
Moore and Griffin. Griffin objected to the tape’s admis-
sion. Though he now argues that the tape is largely unin-
telligible, he did not object on that ground when
opposing the tape’s admission. Indeed, the Illinois Su-
preme Court found that at the time of admission, Griffin
did not object on audibility grounds, Griffin I, 592 N.E.2d
at 934, and our own review of the trial transcript confirms
the correctness of that finding. And the trial court, having
heard the transcription of the tape-recorded conversation,
apparently found the tape sufficiently intelligible and
admitted it. The tape recording of Griffin and Moore’s
telephone conversation was played for the jury.
Griffin’s unsigned statement, taken in the police inter-
view room on August 9, 1984, in the presence of Assistant
State’s Attorney Cohen and Detective Pochordo and
reported by a court reporter, Joseph A. Szybist, was read to
the jury. The court reporter testified that the statement was
an accurate transcription of the conversation between
Cohen and Griffin. According to that statement: Griffin
said that on June 20, 1984, Chuck Ashley asked him to kill
one of his workers, Gibson, for $2,500. Ashley told Griffin
that he wanted Gibson killed because Gibson was a snitch.
Griffin accepted the offer, which was made and accepted
in the presence of Allen a/k/a “Head.” Griffin and Allen
went to the apartment of Moore (a/k/a Kareem) to get a
revolver. Griffin asked Moore for a gun, but didn’t tell him
what it was for. Moore gave Griffin a loaded .38 special
6 No. 09-3138
revolver. Griffin and Allen took Griffin’s family home
and Griffin returned to the car with Gibson. Griffin and
Gibson got into the rental car that Allen was driving.
Gibson was in the front passenger seat, and Griffin got
in the back seat. They drove to the Skyway, turned
around, and then Griffin killed Gibson with the gun,
shooting him four times in the back of the head. They
got off the Skyway at the 73rd exit ramp and Griffin
pulled the body out. Griffin gave the gun he had used to
Ashley and the rental car was dumped. Ashley paid
Griffin $1,500 in cash and $1,000 worth of cocaine. Earlier
that day (August 9, 1984) Griffin received a phone call
from Kareem (Moore) and talked about the contract on
Gibson.
At trial Assistant State’s Attorney Cohen testified
about the recorded telephone conversation between
Griffin and Moore; Cohen had listened to the conversa-
tion as it took place. Cohen stated that throughout
the recorded conversation, the person talking with
Moore responded to the name “Grif.” Cohen also testi-
fied that the person who spoke to Moore had a “low, gruff
voice” and that it was the voice he heard speaking at the
end of the tape when the police entered and arrested
Griffin. Raymond Stockholm, the supervising inves-
tigator with the State’s Attorney’s Office, corroborated
Cohen’s testimony that Moore addressed the person to
whom he spoke as “Grif”—and “several times” at that.
Cohen testified that when he spoke to Griffin on the day
of his arrest, he recognized Griffin’s voice as the same
voice he had heard during the recorded conversation
with Moore. According to Cohen, Griffin acknowledged
No. 09-3138 7
that he discussed the Gibson killing with Moore on the
phone earlier that day.
Cohen further testified regarding Griffin’s oral and
written statements. Cohen stated that on the day of Grif-
fin’s arrest, he had a conversation with Griffin re-
garding Griffin’s participation in the Gibson murder.
Cohen first advised Griffin of his Miranda rights and
then asked if he would like to talk. Griffin asked Cohen
if he had been talking to “Head” (Allen), and
Cohen answered that they had been talking about the
Gibson murder. Griffin agreed to talk. Griffin told
Cohen that he had killed Gibson. More specifically,
Cohen testified that Griffin advised him of a June 20, 1984
conversation with Chuck Ashley in which Ashley asked
him to kill two people, including Gibson, in exchange
for $2,500, and Griffin agreed to do it. According to
Cohen, Griffin told him that Allen was present at the time.
Cohen stated that Griffin said he and Allen met with
Moore; Allen and Griffin picked up some people and then
dropped them off at an apartment. Allen waited in the car
while Griffin got out. Griffin returned with Gibson who got
in the front seat and Griffin got into the back. Cohen
testified that Griffin told him that Allen drove onto the
Skyway, first going southbound, then northbound, and
between the toll plaza and the 73rd Street exit ramp,
Griffin shot Gibson four times in the back of the head.
Griffin stated that they dropped the body on the 73rd
Street exit ramp. According to Cohen’s testimony, Griffin
said he killed Gibson because Ashley paid him to do it,
giving him $1,500 in cash and $1,000 worth of cocaine.
Following their conversation, Cohen asked Griffin if he
8 No. 09-3138
would be willing to give a written court-reported state-
ment. Griffin agreed to do so. Cohen said that after he read
the statement to Griffin, he asked Griffin to sign it. But
Griffin asked to speak to an attorney and did not sign the
statement.
At trial Moore testified that both he and Griffin worked
for Ashley: Griffin in “enforcing”—meaning beating and
killing people for money—and Moore in drug selling,
enforcing, and doing contract work. Moore acknowl-
edged that he had been a contract killer since 1980 and
had been convicted of rape and two robberies. Moore
stated that he had known Griffin for “quite a while” and
had been doing work with him for “a few weeks.” Moore
said that in June 1984, Ashley told Moore he wanted
him to kill Gibson who ran the day-to-day operations of
Ashley’s drug operation. Moore testified that Ashley
offered him some money to kill Gibson; Moore tried to get
Ashley to pay him more but without success, so Moore
suggested that Griffin might be interested in the contract
on Gibson. According to Moore, on June 20, 1984, Griffin
came to his house and told him he had a contract for
Gibson from Ashley and asked Moore to go in on it with
him. Moore declined. Moore testified that the next day,
June 21, Griffin and Allen came over to his house and
Griffin told Moore that he had a contract out from Ashley
and it was easy; Griffin described how he tricked Gibson
out of the house and shot him while Allen was driving on
the Skyway.
Moore also testified about his tape-recorded telephone
conversation with Griffin on August 9, 1984 from the
No. 09-3138 9
State’s Attorney’s Office.1 Moore stated that he called
the person to whom he spoke “Grif” and that person
never said “I’m not Grif.” Moore testified that during
that conversation, the other person told Moore about
how he and Allen had killed Gibson, the car and gun
they had used, and Ashley’s contract on Gibson.
Moore acknowledged that in exchange for his testi-
mony at trial, the State’s Attorney’s Office agreed to
dismiss a pending gun case and drug case, allow him to
plead guilty to a sentence of time served, reduce an
armed robbery charge to robbery, place him in the witness
protection program, and relocate him after he testified
at trial. On cross-examination, Moore initially denied that
he had received any money since August 1, 1984 until the
time of his testimony in connection with the case or his
participation in it. But when pressed about whether he
had received money from the State’s Attorney’s Office,
Moore admitted that he had received money for “the
relocation thing” from “Mr. Wadas” (an Assistant State’s
Attorney). Subsequently, Moore back-pedaled and
offered that he hadn’t received any money; he said
that checks were made out to “various locations.”
Several times Moore denied receiving any money, in-
cluding from police officers.
1
In his brief, Griffin says that Moore testified about “the
largely unintelligible taped telephone conversation.” Moore
testified about this conversation but never described the tape
as unintelligible. Nor did anyone else at trial, not even the
trial judge who listened to the tape recording before ruling on
its admissibility, describe it as unintelligible.
10 No. 09-3138
The jury found Griffin guilty on all counts. Griffin
waived his right to a sentencing jury for both the
eligibility and sentencing stages. Judge Strayhorn found
Griffin death eligible. The court asked the attorneys if
they were ready to proceed with the aggravation/mitiga-
tion phase of sentencing. Defense counsel responded,
“Not really” and sought a continuance for filing post-
trial motions. The motion for continuance was denied,
and the State offered its case in aggravation: “all of the
evidence that the Court heard during the trial of this
case” and certified copies of Griffin’s seven prior con-
victions.
Griffin called two witnesses in mitigation: Griffin and Ida
Powe—a witness with whom Griffin’s counsel had never
spoken “until just a few minutes” before she testified.
Griffin testified about his drug addictions and prior
convictions and denied killing anyone. He also stated that
when he was a teenager he had been placed in a mental
institution for attempted suicide and depression and had
escaped on two occasions. Powe testified that she had
known Griffin since 1974 and had never known him to
commit any type of violence against another person. She
did not think he was capable of murder.
In closing argument, Griffin’s counsel emphasized that
there was no eyewitness to the Gibson murder and no
physical evidence. Counsel argued that the only evidence
was the testimony “of a contract killer who was thoroughly
impeached”; “a tape recording”—on which Powe did not
recognize Griffin’s voice; and Griffin’s unsigned statement,
which in counsel’s opinion “was really questionable.”
No. 09-3138 11
Griffin’s counsel later stated (in an affidavit submitted
with Griffin’s post-conviction petition) that he had never
interviewed Powe and had not known of her existence
until the sentencing hearing. Powe’s affidavit indicated
that during the sentencing proceedings, Griffin’s counsel
approached the gallery seeking persons to testify on
Griffin’s behalf, and she essentially volunteered to do so.
Judge Strayhorn sentenced Griffin to death. Thereafter,
Griffin’s sentence was commuted to life imprisonment.
This did not moot the habeas petition; Griffin may seek
a lower sentence. See Simpson v. Battaglia, 458 F.3d 585,
595 (7th Cir. 2006).
C. Post-Conviction Proceedings
Griffin filed two post-conviction petitions. In the first,
which was filed while his direct appeal was pending,
Griffin claimed that the State knowingly suborned
perjury from key prosecution witness Moore. On August
19, 1986, Sam Adam, counsel for Griffin on direct appeal
(Adam had represented Ashley at trial), videotaped Moore
recanting his trial testimony and admitting that he commit-
ted perjury at Griffin’s trial. The statement indicated that
Moore agreed with Detective Pochordo to lie at Griffin’s
trial in exchange for money. Moore claimed that Pochordo
and members of the State’s Attorney’s Office told him what
to say. Moore stated that he was given large cash payments
to live a lavish lifestyle and that he was given money to
buy the catering truck he wanted in exchange for his
testimony. Adam also obtained a transcript of Moore’s
testimony given August 20, 1987, in the Circuit Court of
12 No. 09-3138
Cook County in Illinois v. Freeman in which Moore testified
that he had lied in the Gibson trial and that he had been
paid to testify as a State witness. Griffin requested an
evidentiary hearing. Judge Strayhorn found “no constitu-
tional imperfections” in the case and denied his petition
without a hearing. On appeal, Griffin argued this was
error. The Illinois Supreme Court affirmed Griffin’s
conviction, sentence, and the denial of his post-conviction
petition. Griffin I, 592 N.E.2d 930. The state supreme court
found that the trial court did not abuse its discretion
in ruling on the habeas petition without holding an
evidentiary hearing. Id. at 933.
In his second post-conviction petition, Griffin brought,
among others, a claim under Strickland v. Washington,
466 U.S. 668 (1984). Griffin argued that his counsel was
ineffective for failing to investigate and present at sen-
tencing the following mitigation evidence: (1) his school,
mental health, and prison records; (2) a psychological
evaluation; and (3) testimony from several relatives. (The
original petition included affidavits from five relatives;
Griffin apparently supplemented his petition with the
addition of six more affidavits from relatives and friends.
This included an affidavit from Powe that gave greater
insight into Griffin’s personal life than her sentencing
testimony had.) This second petition was supported by
the affidavit of George Howard, Griffin’s counsel at both
trial and sentencing. Howard’s affidavit stated that prior
to the capital sentencing hearing, he “made no attempt to
investigate for mitigating evidence,” “the only defense
against the death penalty [he] considered and presented
was residual doubt of guilt,” and “there was no strategic
No. 09-3138 13
reason” for his failure to investigate for mitigating evi-
dence. Judge Strayhorn dismissed the petition without
a hearing.
The Illinois Supreme Court affirmed. People v. Griffin,
687 N.E.2d 820 (Ill. 1997) (Griffin II), cert. denied, 524 U.S.
956 (1998). The court recognized that “counsel has a duty
to investigate potential sources of mitigation evidence,
or to have a reason not to make such an investigation” and
stated that the “decision whether to present a particular
witness is generally a strategic choice which cannot
support a claim of ineffective assistance of counsel.” Id. at
833 (citations omitted). Then, relying on the special con-
currence in Griffin’s prior appeal, the state supreme
court found that “counsel’s performance was clearly a
strategic decision.” Id. (The special concurrence said
that “[a]pparently believing that the defendant’s per-
sonal history provided little, if any, mitigation, counsel
chose to argue to the sentencing judge that the evidence
of the defendant’s guilty . . . should not form the basis
for a death sentence.” Griffin I, 592 N.E.2d at 938 (Miller,
C.J., specially concurring).) The Illinois Supreme Court
added that “information on defendant’s personal history
was included in the presentence investigation report.
Defense counsel cannot be faulted for failing to intro-
duce mitigation evidence that was already contained in
the report.” Griffin II, 687 N.E.2d at 834. The Illinois
Supreme Court’s decision does not explicitly mention
Howard’s affidavit. (Respondent does not dispute Grif-
fin’s assertion that his second post-conviction petition
was in fact supported by Howard’s affidavit.)
14 No. 09-3138
The Illinois Supreme Court determined that Griffin
had not shown prejudice, finding “no reasonable prob-
ability that, absent trial counsel’s alleged deficiencies,
the sentencer would have found that the mitigating
circumstances preclude the imposition of the death pen-
alty.” Id. The court cited Griffin’s confession to having
executed Gibson for money and narcotics, which was
corroborated by other trial evidence, and Griffin’s
lengthy criminal history. According to the court, the
proffered mitigation evidence was either “cumulative
to evidence already introduced at trial” or “not inherently
mitigating.” Id. The Illinois Supreme Court said that
information about Griffin’s school, mental health, and
prison records was contained in the presentence inves-
tigation report and Griffin’s mitigation testimony, that
the sentencing court was aware of Griffin’s mental condi-
tion through testimony at the fitness hearing, and that
the testimony from Griffin’s family members would
have gone to his troubled, disadvantaged childhood,
which was presented in the presentence report. Id. Thus,
the state supreme court concluded that the proffered
testimony “would have been cumulative and . . . not
inherently mitigating.” Id. Finally, the Illinois Supreme
Court relied on the fact that the post-conviction court,
which had been the sentencing court, stated that the
“proffered evidence would not have changed defendant’s
sentence.” Id. The United States Supreme Court denied
certiorari. Griffin v. Illinois, 524 U.S. 956 (1998).
In August 1998, Griffin filed a petition for writ of
habeas corpus in the district court, claiming that the
State knowingly used the perjured testimony of a key
No. 09-3138 15
witness and that his sentencing counsel was ineffective
in failing to conduct an investigation into and present
any mitigation evidence. The district court held a
hearing on both claims on several days from 2002
to 2004 at which Moore testified that he lied at
Griffin’s trial when he said that Griffin was responsible
for Gibson’s murder. According to Moore, Detective
Pochordo fed him all the information about the Gibson
murder. Moore denied that Griffin was the person to
whom he was speaking during the tape-recorded con-
versation played at Griffin’s trial; Moore also denied
that the conversation was about the Gibson murder.
Moore testified that he had received thousands of
dollars from the Illinois State’s Attorney’s Office and that
he had lied to Griffin’s jury about how much he had
received or was to receive as well as the purpose of the
money. Moore said that after Griffin’s conviction, he
and his girlfriend received several thousand dollars
each, which was confirmed by the State’s Attorney’s
Office’s records. Moore claimed that the prosecutors
gave him money after he testified “for lying.”
Financial records from the State’s Attorney’s Office
showed that Moore received cash and benefits totaling in
excess of $66,000. There was evidence that the money was
spent on luxury hotel rooms, apartment, car rentals, and
payment of dental expenses for Moore’s girlfriend. Moore
claimed that the State paid rent for apartments that
were narcotics houses. He testified that he was never
part of the witness protection program, that he didn’t
need protection, and that the State’s Attorney’s Office
called the benefits “witness protection” to justify giving
16 No. 09-3138
him the money. At the time of the evidentiary hearing,
Moore was serving a sixty-year sentence for aggravated
criminal assault along with shorter concurrent sen-
tences for aggravated kidnapping and robbery. He ad-
mitted that he picks and chooses when to tell the truth
and said that he “despised” the State’s Attorney’s Office.
The district court heard testimony or received stipula-
tions from Franklin Freeman; Detective Pochordo; the
Assistant State’s Attorneys who prosecuted Griffin’s
criminal case; their supervisors; George Howard; and
others. Freeman testified that Moore told Freeman he
was working for Pochordo and that Pochordo would
believe everything they told him. Pochordo confirmed
that following the Gibson trial, Moore was neither par-
ticularly concerned about his safety nor particularly
interested in the witness relocation program. Pochordo
admitted that Moore asked him for $200 once, and
Pochordo gave it to him. But Pochordo denied knowl-
edge that Moore received any money from the State’s
Attorney’s Office.
The district court also heard testimony about the proce-
dures for disbursing money from the State’s Attorney’s
Office’s relocation unit. The State’s witnesses testified that
it would be unusual to provide large cash payments such
as $2000 to relocation witnesses. The witnesses testified
that the relocation program paid for housing and preferred
to use apartments, but would use hotels if necessary. The
evidence was that the relocation program did not typically
include medical expenses for witnesses or assistance to
purchase or rent a car. The parties stipulated that former
No. 09-3138 17
Cook County prosecutor William Hibbler (now a district
judge in the Northern District of Illinois) would testify
that in the mid-1980s there were no guidelines as to
how the relocation program was to be administered,
benefits were decided on a case-by-case basis, and it was
“very possible” that no one person kept track of the
expenditures on Moore. Each state prosecutor involved
in Griffin’s criminal trial testified that he did not prom-
ise Moore money in exchange for his testimony; each
prosecutor expressed a belief that Moore was in danger
and that the money spent on Moore’s behalf was in-
tended to relocate him in order to protect him; and each
testified that he believed Moore’s trial testimony was true.
The district court denied Griffin’s habeas petition. The
court found that from August 1984 to June 1986, the
State’s Attorney’s Office spent over $66,000 in relocation
expenses for Moore and his dependents, the majority of
which was paid after Moore testified. Although the
court found that one could infer that “the way the money
was spent on Moore was inconsistent with witness pro-
tection,” the court credited the prosecutors’ testimony
that “the money was paid to relocate and to protect
Moore from potential threats”—they were not paying
Moore for his testimony. The court relied on evidence
that when the payments were made, the State’s At-
torney’s Office had no guidelines. The court also cred-
ited the prosecutors’ and Detective Pochordo’s testimony
that they believed Moore’s trial testimony was true. And
the court found that Griffin failed to prove that Moore
perjured himself or that Pochordo or the prosecutors
knew it. The district court therefore concluded that
18 No. 09-3138
Griffin had not carried his burden of proving a depriva-
tion of due process.
With respect to the Strickland claim, the district court
found, based on Howard’s affidavit and testimony at
the hearing, that he “made no investigation for mitigating
evidence,” he “had no good reason” not to conduct such
an investigation, and his failure to do so did not meet
the objective standards of reasonableness. However,
deferring to the “state court finding of fact” that Griffin’s
sentence would not have been different had the mitiga-
tion evidence been presented, the district court concluded
that Griffin suffered no prejudice. This “finding of fact”
was based on the sentencing judge’s statement that the
proffered mitigation evidence would not have changed
Griffin’s sentence. In a footnote, the district court added
that it would reach the same conclusion absent deference
to the state court finding, but the court did not expand on
this conclusion. The district court entered judgment,
denying Griffin’s habeas petition, and Griffin appealed.
Griffin sought a certificate of appealability as to two
claims: (1) that he was denied due process of law when
the State knowingly presented and failed to correct false
testimony of key witness Moore, and (2) that he
was denied effective assistance of counsel at his capital
sentencing hearing when his attorney, who conducted
virtually no investigation, failed to present substantial,
available mitigating evidence. The district court issued
a certificate of appealability as to these two claims.
No. 09-3138 19
II. Analysis
Griffin raises the two certified claims on appeal.
A. Standard of Review
We review the district court’s decision to deny Griffin’s
habeas petition de novo and we review its factual
findings for clear error. Ebert v. Gaetz, 610 F.3d 404, 411
(7th Cir. 2010). Our review is constrained by the Anti-
terrorism and Effective Death Penalty Act of 1996, specifi-
cally 28 U.S.C. § 2254(d). A federal court may grant
habeas relief only if the state courts’ adjudication of Grif-
fin’s claim “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court” or “was based on
an unreasonable determination of the facts in light of
the evidence presented.” 28 U.S.C. § 2254(d). Though
Griffin mentions the “contrary to” clause of § 2254(d), his
claims are limited to the “unreasonable application” of
federal law and the “unreasonable determination of
the facts.”
“A state court unreasonably applies federal law if it
identifies the correct legal principle but unreasonably
applies it to the facts of the case, or if it unreasonably
refuses to extend a principle to a context in which it
should apply.” Goudy v. Basinger, 604 F.3d 394, 399 (7th Cir.
2010) (citing Williams v. Taylor, 529 U.S. 362, 407 (2000)).
The state court’s application of federal law must have
been both incorrect and unreasonable, “that is, lying well
outside the boundaries of permissible differences of
20 No. 09-3138
opinion.” Id. (quoting Tolliver v. McCaughtry, 539 F.3d 766,
774 (7th Cir. 2008)). And a “decision involves an unrea-
sonable determination of the facts if it rests upon
fact-finding that ignores the clear and convincing weight
of the evidence.” Id. We deferentially review the decision
of the last state court to address Griffin’s petition on the
merits. Ebert, 610 F.3d at 411. The state court’s factual
findings are presumed correct unless Griffin rebuts that
presumption with clear and convincing evidence. Id.; see
also 28 U.S.C. § 2254(e)(1). We review the post-conviction
court’s decision with respect to the Napue claim and
the Illinois Supreme Court’s decision in Griffin II with
respect to the Strickland claim.
B. Napue Claim
The Supreme Court has held that “a conviction ob-
tained through use of false evidence, known to be such
by representatives of the State, must fall under the Four-
teenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269
(1959); see also United States v. Agurs, 427 U.S. 97, 103
(1976) (holding prosecutor has an obligation to provide
defense with exculpatory information even when no
request has been made); Giglio v. United States, 405 U.S.
150, 154-55 (1972) (new trial required where govern-
ment failed to correct false testimony by key witness
about a benefit he received for testifying and the pros-
ecutor should have been aware of the falsehood).
“The same result obtains when the State, although not
soliciting false evidence, allows it to go uncorrected when
it appears.” Napue, 360 U.S. at 269. The constitutional
No. 09-3138 21
violation is not cured by “the fact that the jury was ap-
prised of other grounds for believing that the witness . . .
may have had an interest in testifying against peti-
tioner.” Id. at 270. When a conviction is obtained
through the knowing use of false testimony, it must be
set aside “if there is any reasonable likelihood that the
false testimony could have affected the judgment of the
jury.” Agurs, 427 U.S. at 103; see also Giglio, 405 U.S. at 154;
Napue, 360 U.S. at 271. Thus, a new trial is required if a
petitioner establishes that (1) the prosecution presented
false testimony or failed to disclose that false testimony
was used to convict, (2) the prosecution knew or should
have known that the testimony was false, and (3) there
is a reasonable likelihood that the testimony could
have affected the jury’s judgment. Agurs, 427 U.S. at 103.
Even if we assume that Griffin could establish the first
two prongs of this standard, he cannot show a rea-
sonable likelihood that Moore’s false testimony could
have affected the judgment of the jury.
Griffin submits that he was prejudiced by Moore’s
testimony because there was no physical evidence or
eyewitness testimony linking Griffin to Gibson’s murder
and Moore was the key prosecution witness upon
which his conviction largely depended. According to
Griffin, take away Moore’s testimony and the State is
merely left with Griffin’s unsigned statement and the
recording of his consensual overhear with Moore, which
was unintelligible and “translated” by Moore.
Griffin criticizes his written statement because it was
unsigned. But the absence of his signature does not
22 No. 09-3138
render his written statement useless evidence. Griffin
cannot refute that in his written statement he admitted
to having killed Gibson—shooting him four times in
the back of the head—because Ashley put a contract on
Gibson and Griffin accepted it. Griffin also errs in
claiming that his unsigned statement was the sole piece
of other evidence against him. The court reporter who
took Griffin’s written statement testified at trial that
the statement was an accurate transcription of the con-
versation between Cohen and Griffin. And Assistant
State’s Attorney Cohen testified extensively about
Griffin’s oral and written statements in which he con-
fessed to killing Gibson for Ashley. According to Cohen,
after being advised of his Miranda rights, Griffin agreed
to talk to Cohen about the Gibson murder and admitted
that he had killed Gibson. We should add that Cohen’s
testimony establishes that Griffin’s written statement
and oral statement were consistent on the facts.
And there’s more. Cohen also testified about the tele-
phone conversation between Griffin and Moore—Cohen
was listening in on the entire conversation. Both Cohen
and investigator Stockholm, who conducted the over-
hear, testified that the person talking with Moore re-
sponded to the name “Grif.” Cohen stated that when
speaking with Griffin after his arrest, Cohen recognized
Griffin’s voice as the one he heard during the recorded
conversation with Moore. And Cohen testified that
during his conversation with Griffin after his arrest,
Griffin acknowledged having discussed the Gibson
killing with Moore on the phone earlier that day. Neither
No. 09-3138 23
Cohen, Szybist, nor Stockholm were seeking any
benefits from the State in testifying against Griffin. See
United States v. Williams, 81 F.3d 1434, 1439-40 (7th
Cir. 1996) (holding no abuse of discretion to deny de-
fendants’ request for new trial based on government’s
knowing use of perjured testimony and concealment of
evidence favorable to the defense where tainted testi-
mony was corroborated by law enforcement).
Griffin relies on United States v. Boyd, 55 F.3d 239 (7th
Cir. 1995), in which we held that the district court did not
abuse its discretion by granting new trials where the
government had knowingly used perjured testimony
and failed to disclose exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963). The govern-
ment’s case in Boyd “depended heavily on” the testimony
of the witnesses whose testimony the defendant al-
leged was perjured. And the district judge found that
the prosecutors’ misconduct was “far more serious
than” the typical case in which a prosecutor is accused of
knowingly using false testimony or failing to disclose
exculpatory material. Id. at 241. We did not dispute
that assessment. Boyd is an extreme example of gross
prosecutorial misconduct; Griffin’s is nothing like it.
Even if we assume that Moore was lying under oath at
Griffin’s trial, Boyd does not require a new trial in this case.
As we observed in Boyd, “[t]he knowing use of perjured
testimony is not an automatic ground for a new trial.” Id.
at 243. Although Moore’s testimony was important, it
was not essential to the State’s case given all the other
weighty evidence against Griffin. As for the taped tele-
24 No. 09-3138
phone conversation between Moore and Griffin, the
record does not bear out Griffin’s suggestion that Moore
had to translate the recording. Sure, Moore testified
about what he and Griffin said during their telephone
conversation, but he did not interpret the words or
sounds on the tape as it was played for the jury.
Though the district court characterized the tape as unin-
telligible, there is no hint in the trial record that the
tape was unintelligible, not even in part, approximately
twenty years before when it was played at trial. Griffin
objected to the tape’s admission, but unintelligibility
was not one of the grounds he raised. And we know
from the record that Judge Strayhorn listened to the
tape before admitting it and explained the legal standards
that govern the admissibility of voice identification
and sound recordings—his oral ruling on the tape’s ad-
missibility spans several pages of transcript and refer-
ences several state court decisions—which suggest that
the tape was sufficiently intelligible. Cf. People v. Rogers,
543 N.E.2d 300, 303 (Ill. App. Ct. 1989) (stating that “a
partially inaudible tape recording is admissible unless
the inaudible portions are so substantial as to render the
recording untrustworthy as a whole”).
The fact that the State lavished Moore with benefits
prior to and after his testimony suggests that Moore’s
testimony was valuable to the State in its case against
Griffin (as well as other cases). But Moore’s testimony
was in no way the only or even strongest piece of evi-
dence against Griffin. The remaining evidence estab-
lishes that Griffin’s conviction was secure even if the
No. 09-3138 25
jury completely discredited Moore’s testimony. The
district court correctly denied habeas relief on the Napue-
false testimony claim.
C. Strickland Claim
In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court set forth the legal principles gov-
erning ineffective assistance of counsel claims. Under
Strickland, a petitioner must show both that his counsel’s
performance fell below an objective standard of reason-
ableness under prevailing professional norms, and that
the deficient performance prejudiced his defense. Strick-
land, 466 U.S. at 688-93; Ebert, 610 F.3d at 411. A state
court’s conclusion whether counsel’s assistance was
effective and whether counsel’s performance prejudiced
the defendant are mixed questions of law and fact
which we review de novo. Strickland, 466 U.S. at 698;
Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009). Respon-
dent concedes that Howard’s failure to conduct any
investigation into mitigation evidence was unreason-
able—and it was—so we focus our attention on
whether Griffin has shown prejudice.
With respect to Strickland’s prejudice component, a
petitioner must show “that there is a reasonable prob-
ability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466
U.S. at 694; see also Allen, 555 F.3d at 600. When chal-
26 No. 09-3138
lenging his sentence, a petitioner must show that but for
counsel’s errors, there is a reasonable probability that he
would have received a different sentence. Strickland, 466
U.S. at 695; see also Porter v. McCollum, 130 S. Ct. 447, 453
(2009). Courts assess that probability by evaluating “ ‘the
totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the
habeas proceeding’—and reweigh[ing] it against the
evidence in aggravation.’ ” Porter, 130 S. Ct. at 453-54
(quoting Williams, 529 U.S. at 397-98). We review for
reasonableness the state court’s determination that such
a probability does not exist. Ellison v. Acevedo, 593 F.3d
625, 633 (7th Cir. 2010). The petitioner’s bar is set high,
and “ ‘only a clear error in applying Strickland will
support a writ of habeas corpus.’ ” Byers v. Basinger, 610
F.3d 980, 988 (7th Cir. 2010) (quoting Allen, 555 F.3d at 600).
Griffin has cleared the bar. Had Griffin’s counsel con-
ducted an investigation into mitigation and presented
the proffered mitigation evidence, the sentencing court
“would have learned of the ‘kind of troubled history
[the Supreme Court has] declared relevant in assessing
a defendant’s moral culpability.’ ” Porter, 130 S. Ct. at 454
(quoting Wiggins v. Smith, 539 U.S. 510, 535 (2003)). This
case falls in line with those cases in which the Supreme
Court has concluded that counsel’s failure to investigate
and present proffered mitigation evidence prejudiced the
petitioner. See, e.g., Rompilla v. Beard, 545 U.S. 374, 390-93
(2005) (mitigation case built on evidence that petitioner
was raised in a “slum environment,” quit school at 16, and
had a serious drinking problem; test results pointed to
schizophrenia and other disorders; test scores showed
No. 09-3138 27
third-grade level of cognition despite nine years of
school; his parents were severe alcoholics who drank
constantly; there was no expression of parental love,
affection or approval, only yelling and verbal and physical
abuse; petitioner lived in a house with no plumbing, slept
in an attic with no heat; his mother went missing fre-
quently for several weeks at a time; and he suffered
from fetal alcohol syndrome); Wiggins, 539 U.S. at 535
(petitioner suffered “severe privation and abuse in the
first six years of his life while in the custody of his alco-
holic, absentee mother,” physical torment, sexual mo-
lestation, rape in foster care, homelessness, and di-
minished mental capacities which created a reasonable
probability the jury would have reached a different
sentence); Williams, 529 U.S. at 395-96 (mitigation evi-
dence included records of “nightmarish childhood,”
involving severe and repeated beatings by petitioner’s
father and criminal neglect by both parents, placement
in an abusive foster home during parents’ incarceration,
and petitioner was “borderline mentally retarded” and
did not go beyond sixth grade). Had Griffin’s counsel
investigated and presented the proffered evidence,
Judge Strayhorn would have learned of Griffin’s father’s
alcoholism and abusiveness, Griffin’s mother’s absences
from the home, and the circumstances of his mother’s
death and how it affected him, including the increasing
mental abuse from his father. The judge would have
heard about Griffin’s diagnosis of “schizophrenic reac-
tion, chronic undifferentiated type—with suicidal tend-
encies” and other details of his mental health and drug
addictions, his two attempts at suicide, and his attempts
28 No. 09-3138
at self-mutilation. The judge also would have heard
about Griffin’s good acts, including caring for sick and
dying family members—even for his father.
The Illinois Supreme Court concluded that there was
no reasonable probability that absent counsel’s alleged
errors, the sentencing court would have found that the
mitigating evidence precluded the death penalty. The
first problem with that assessment is that it is unclear to
us how much weight the state supreme court gave to
Judge Strayhorn’s statement that the introduction of the
proffered evidence would not have changed Griffin’s
sentence. Though we, and the Illinois Supreme Court,
may give weight to such a statement, it is not conclusive.
Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir. 2007) (stating
that where the same judge presides over both the post-
conviction proceeding and trial, “we cannot accept as
conclusive the judge’s statement that the new evidence
would not have made any difference”). The question
is not whether a particular judge would have imposed a
different sentence, but rather whether there was a “rea-
sonable probability” that the sentence would have
been different. In assessing that probability we conduct
an objective evaluation of the evidence. Id. at 964-65.
Another problem: the Illinois Supreme Court gave
consideration to the seriousness of Griffin’s offense, the
corroboration of Griffin’s confession by other evidence,
and his lengthy criminal history, but it did not properly
evaluate the totality of the mitigation evidence and
reweigh it against the aggravation evidence as it must.
See, e.g., Porter, 130 S. Ct. at 453-54. After all, the state
No. 09-3138 29
supreme court thought the proffered mitigation evi-
dence was merely cumulative and not inherently miti-
gating. But most of the proffered evidence was neither.
And the court’s determination to the contrary was unrea-
sonable. See Hall v. Washington, 106 F.3d 742, 752 (7th
Cir. 1997) (Illinois Supreme Court’s view that proffered
mitigation evidence was mere character evidence and
cumulative was unreasonable finding). The state
supreme court thought that the information about Grif-
fin’s personal history was included in the presentence
report. See Griffin II, 687 N.E.2d at 834 (“We add that
information on defendant’s personal history was in-
cluded in the presentence investigation report.”). Some
information about Griffin’s personal history was in the
report, but the report was an incomplete and at times
inaccurate reflection of Griffin’s tragic personal history.
The presentence report referenced Griffin’s representa-
tion of a “normal childhood and good relationships with
his parents . . . . ” His childhood was anything but normal.
Respondent relies on Lear v. Cowan, 220 F.3d 825 (7th
Cir. 2000), in arguing that there is no reasonable prob-
ability that the omitted evidence would have changed
Griffin’s sentence. Like Griffin, Lear was sentenced to
death and argued ineffective assistance of counsel at
sentencing. Lear specifically argued that he was en-
titled to the assistance of a “mitigation specialist” who
would conduct a thorough investigation into his past
to find mitigation evidence. Id. at 829. We determined
that the denial was harmless because the evidence in ag-
gravation was “compelling”: Lear had committed two
prior murders, and the murder for which he was sen-
30 No. 09-3138
tenced was “entirely gratuitous [in] character.” Id. The
only additional mitigation evidence uncovered was
that Lear was a good student, had a somewhat below-
average I.Q., used cocaine, and had a mental disorder.
Id. The mitigation evidence that Griffin offers is markedly
different—nothing hints that Lear had as horrendous
a childhood as Griffin— and there is a reasonable prob-
ability that it would have made a difference in Griffin’s
sentence.
The Illinois Supreme Court’s determination that
Griffin was not prejudiced by his counsel’s deficient
performance at sentencing was an unreasonable appli-
cation of Strickland.
III. Conclusion
We R EVERSE the district court’s judgment in part and
remand with instructions to grant Griffin’s habeas peti-
tion on the Strickland claim only and allow the State
120 days within which to resentence Griffin.
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