In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3155
S AMUEL M ORGAN,
Petitioner-Appellant,
v.
M ARCUS H ARDY, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 3378—David H. Coar, Judge.
A RGUED S EPTEMBER 8, 2011—D ECIDED N OVEMBER 7, 2011
Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
B AUER, Circuit Judge. Samuel Morgan was convicted
in the Circuit Court of Cook County for the murders of
William Motley and Kenneth Merkson and the rape and
aggravated kidnapping of Phyllis Gregson. After unsuc-
cessfully seeking postconviction relief in the state courts,
Morgan filed a petition for a writ of habeas corpus in
the United States District Court for the Northern District
2 No. 10-3155
of Illinois. The district court denied relief but granted
a certificate of appealability. We affirm.
I. BACKGROUND
On the afternoon of January 27, 1982, Samuel Morgan
(“Morgan”) arrived at the apartment of a friend, Elijah
Prater (“Prater”), accompanied by William Motley (“Mot-
ley”) and Kenneth Merkson (“Merkson”). There, the
four men used cocaine, marijuana, and alcohol. Later
that night Phyllis Gregson (“Gregson”), a friend of
Prater’s, joined them.
The group spent the night at Prater’s apartment. The
next day, just before noon, Motley, Gregson, and Morgan
were in the apartment’s front room. Motley was sitting
on a couch, talking on the telephone and looking
through a small, black telephone book. While he was
making calls, Motley had a .357 magnum revolver
tucked under his leg. Morgan was sitting on a chair with
a shotgun across his lap, and Gregson was sitting in a
rocking chair. Prater and Merkson were both in the
kitchen.
Morgan then instructed Gregson to remove her
clothing and dance for him. Gregson refused. Motley,
still sitting on the loveseat, made an unknown comment
to Morgan. Morgan, who was between six and seven feet
away from Motley, aimed the shotgun at him and fired.
Motley flew off the couch and onto the floor. Morgan
then grabbed the revolver from Motley’s body and
placed it in his waistband.
No. 10-3155 3
Morgan went into the kitchen and instructed Prater
and Merkson to come into the front room and clean up
Motley’s body. In the process, Merkson handed over
money, marijuana, and the black telephone book to Mor-
gan, who put the book in his pocket. At Morgan’s
request, Prater and Merkson unsuccessfully tried to fit
Motley’s body into a dresser drawer. Prater and Merkson
then stuffed Motley’s body into a laundry bag and
wrapped it inside a mattress. Morgan told Gregson to
clean Motley’s blood from the floor, and she did.
Shortly thereafter, Morgan sent Prater to buy alcohol
and fill Prater’s car with gasoline. Prater ran the errands
and returned to the apartment about fifteen minutes
later. At that time, Gregson was washing dishes in the
kitchen, and Morgan was sitting in the dining room
with the shotgun in his lap and the handgun in the waist-
band of his pants. Merkson was walking around the
apartment making jokes.
The men drank some of the liquor Prater purchased.
Merkson continued making jokes until Morgan told him
to stop joking and remove Motley’s body from the apart-
ment. When Merkson made another remark, Morgan
chased him into the front room and hit him in the head
with the butt of the handgun. And again, Morgan in-
structed Merkson to remove the body from the apartment.
Merkson made another remark to Morgan, and
Morgan told Merkson to get down on his knees and face
the floor. Prater testified that he saw Morgan point the
handgun at Merkson’s head from a distance of four to
five feet. Prater then turned to face the wall, heard a shot,
4 No. 10-3155
and turned back to find Merkson’s body on the floor.
Both Gregson and Prater testified that they saw
Morgan holding the handgun while standing beside
Merkson’s body.
Morgan ordered Gregson to clean up Merkson’s blood,
and instructed Prater to get the body out of the apart-
ment. As Prater began tying up Merkson’s body,
Morgan approached him from behind and began shooting
at him. Prater felt a bullet pass by his head, and he ran
out the back door of the apartment.
Still armed with the handgun, Morgan took Gregson
out of the apartment by her arm. While this was hap-
pening, Prater’s downstairs neighbor called the police
in response to the shots he heard.
The police arrived and discovered the bodies of Motley
and Merkson, a loaded shotgun, a fingerprint on the
dresser later identified as Morgan’s, a bullet from the
floor, and a bullet from the downstairs neighbor’s apart-
ment.
After leaving the apartment, Morgan took Gregson to
the South Shore Motel, where he checked in under an
alias and raped her. After spending about two hours in
the motel room, Morgan escorted Gregson by the arm
to his car. A motel employee testified that he saw Morgan
pointing a gun to Gregson’s head. When he noticed
the employee, Morgan aimed the gun at him and chased
him, but stopped when the employee ran into the motel
lobby. Again, Morgan took Gregson by the arm and
pushed her head first into the car. After driving away
from the motel, Morgan stopped the car, told Gregson
No. 10-3155 5
to get out, and warned her not to tell anyone what had
happened. Morgan then drove off at a high rate of speed.
Morgan was arrested the next day. Later that same
day, Prater contacted the police and told them that
Morgan was responsible for the deaths of Merkson and
Motley. Prater’s statements to the police were later con-
firmed by Gregson.
A. Procedural History
At trial, an expert testified that the handgun recovered
from Morgan had fired the bullets police found at the
crime. The plastic bag that Morgan dropped contained
a black notebook, which Prater and Gregson identified
as one Merkson removed from Motley’s body.
On May 3, 1983, a jury convicted Morgan of the
murder of Merkson and Motley and the rape and aggra-
vated kidnaping of Gregson. The Illinois Supreme Court
affirmed on April 18, 1986. People v. Morgan I, 492
N.E.2d 1303, 1306 (1986); a petition for writ of certiorari
to the United States Supreme Court was denied on Febru-
ary 23, 1987. Morgan v. Illinois, 479 U.S. 1101 (1987).
On January 20, 1988, Morgan filed a petition for
postconviction relief under 725 ILCS 5/122-1, which was
denied. The Illinois Supreme Court affirmed Morgan’s
convictions but vacated his death sentence and remanded
the case for a new sentencing hearing, finding that
Morgan had been denied effective assistance of counsel
at his sentencing. People v. Morgan II, 719 N.E.2d 681, 687
(1999). On March 20, 2000, the United States Supreme
6 No. 10-3155
Court denied Morgan’s petition for a writ of certiorari.
Morgan v. Illinois, 529 U.S. 1023 (2000).
Morgan then filed a successor petition for postcon-
viction relief and a petition for relief from judgment;
after an evidentiary hearing, the court rejected all of
Morgan’s claims. The Illinois Supreme Court affirmed his
convictions on September 23, 2004 and ordered that the
stay of his new sentence be lifted. People v. Morgan,
817 N.E.2d 524, 526 (2004). Another petition for a writ
of certiorari was denied on February 22, 2005. Morgan v.
Illinois, 543 U.S. 1167 (2005).
On September 19, 2005, the state court sentenced
Morgan to natural life imprisonment. The Illinois
appellate court rejected Morgan’s appeal on August 20,
2007. People v. Morgan, 875 N.E.2d 6, 10 (1st. Dist. 2007).
On June 11, 2008, Morgan filed for habeas corpus relief
in the United States District Court, which was denied
and is the subject of this appeal.
B. Prater’s Recantation
Approximately 18 years after the murders took place
and after repeatedly giving his account of the events
leading to the deaths of Motley and Merkson under oath,
Prater changed his story. Under Prater’s new version of
the crime, which he presented at the evidentiary hearing
on Morgan’s successive postconviction petition, Motley
and Merkson got into an argument while they were at
his apartment. Motley struck Merkson in the head with
the handgun and then used the handgun to shoot
No. 10-3155 7
Merkson in the head. Motley then turned to Prater and
Morgan, pointing the handgun at them. Morgan then
shot and killed Motley in self-defense. Prater now claims
that he attempted to tell the same version of the story
to the police, but was coerced into changing his story to
implicate Morgan.
II. DISCUSSION
On appeal, Morgan argues that the district court erred
by finding that the Illinois Supreme Court engaged in
reasonable determinations of fact in (1) rejecting Prater’s
recantation testimony as incredible; (2) denying Morgan’s
Brady claim regarding a failure to disclose exculpatory
evidence; (3) rejecting Morgan’s Giglio claim; and
(4) denying Morgan’s ineffective assistance of counsel
claim. Morgan also argues that the district court erred
when it found that the Illinois Supreme Court did not
violate 28 U.S.C. § 2254(d)(1) and reasonably applied
Brady and Strickland. Finally, Morgan contends the
district court erred in failing to conduct an evidentiary
hearing. We review each issue in turn.
A. Standard of Review
We review the district court’s denial of habeas relief
de novo. Northern v. Boatwright, 594 F.3d 555, 559 (7th Cir.
2010). The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) sets the parameters for our review. Under
AEDPA, we may grant habeas relief only if a state-court
decision was (1) “contrary to, or involved an unreasonable
8 No. 10-3155
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States” or
(2) “based on an unreasonable determination of the facts
in the light of the evidence presented.” 28 U.S.C. § 2254(d);
Williams v. Taylor, 529 U.S. 362, 364-65 (2000); Charlton
v. Davis, 439 F.3d 369, 374 (7th Cir. 2006).
Under the “contrary to” clause, a federal court may
issue a writ of habeas corpus if the state court applied a
rule that “contradicts the governing law” set forth by
the Supreme Court or if the state court reached a differ-
ent outcome based on facts “materially indistinguish-
able” from those previously before the Supreme Court.
Williams, 529 U.S. at 405-06; see also Calloway v. Montgomery,
512 F.3d 940, 943 (7th Cir. 2008). Under the “unreasonable
application” clause, a petitioner must show that the state
court’s decision unreasonably extended a rule to a con-
text where it should not have applied or unreasonably
refused to extend a rule to a context where it should
have applied. Virsnieks v. Smith, 521 F.3d 707, 713 (7th Cir.
2008) (citing Jackson v. Miller, 260 F.3d 769, 774 (7th Cir.
2001)); see also Wright v. Van Patten, ___ U.S. ___, 128 S.Ct.
743, 746-47 (2008) (emphasizing that a state court’s ap-
plication of clearly established law is acceptable, even
if it is likely incorrect, so long as it is reasonable). Our
review of reasonableness is highly deferential; indeed,
“a state decision may stand as long as it is objectively
reasonable, even if the reviewing court determines it to
be substantively incorrect.” Barrow v. Uchtman, 398
F.3d 597, 602 (7th Cir. 2005). On the other hand, a state
court’s decision is “objectively unreasonable,” if it falls
“well outside the boundaries of permissible differences
No. 10-3155 9
of opinion.” Watson v. Anglin, 560 F.3d 687, 690 (7th
Cir. 2009).
The relevant decision for purposes of our assessment
under AEDPA is the decision of the last state court to
rule on the merits of the petitioner’s claim—in this case,
the decisions of the Illinois Supreme Court denying
postconviction relief: Morgan II, 719 N.E.2d at 687 and
Morgan III, 817 N.E.2d at 524. We presume state factual
findings to be correct, unless the petitioner rebuts the
presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240
(2005); Wiggins v. Smith, 539 U.S. 510, 528 (2003); Barrow,
398 F.3d at 603. The presumption of correctness also
applies to factual findings made by a state court of
review based on the trial record. Sumner v. Mata, 449
U.S. 539, 546-47 (1981); Rodriguez v. Peters, 63 F.3d 546,
554 (7th Cir. 1995); see Matthews v. Ishee, 486 F.3d 883, 889
(6th Cir. 2007).
B. Morgan’s Claim that Prater’s Recantation is Cred-
ible
Morgan argues that the Illinois Supreme Court’s rejec-
tion of Prater’s recantation as incredible was based on
an unreasonable determination of facts in violation of
28 U.S.C. § 2254(d)(2). We disagree.
To support his claim under § 2254(d)(2), Morgan
asserts that there are several inconsistences between
the record and the Illinois Supreme Court’s factual deter-
minations. Specifically, Morgan argues that (1) Prater’s
10 No. 10-3155
recantation, unlike his trial testimony, is more consis-
tent with a number of pieces of physical evidence;
(2) Prater’s claim that he was coerced by the police and
the prosecutor sufficiently explains why Prater falsely
implicated Morgan at trial; (3) Prater’s new version of
events in his recantation provides a more plausible ex-
planation of Prater’s “illogical behavior” that night; and
finally (4) Motley’s and Merkson’s history of violence
supports Prater’s recantation that Morgan killed Motley
in self-defense.
A petitioner’s challenge to a state court decision based
on a factual determination under § 2254(d)(2) will not
succeed unless the state court committed an “unreasonable
error,” and § 2254(e)(1) provides the mechanism for
proving unreasonableness. See Ward v. Sternes, 334
F.3d 696, 703-04 (7th Cir. 2003). If a petitioner shows
that the state court determined an underlying factual
issue against the clear and convincing weight of the
evidence, the petitioner has “gone a long way towards
proving that it committed unreasonable error.” Ward, 334
F.3d at 704. “A state court decision that rests upon
a determination of fact that lies against the clear weight
of the evidence is, by definition, a decision ‘so inade-
quately supported by the record’ as to be arbitrary
and therefore objectively unreasonable.” Id. (quoting
Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)).
After careful review of the record, we find that the
Illinois Supreme Court’s determination that Prater’s
recantation was incredible was not against the clear
and convincing weight of the evidence.
No. 10-3155 11
First Morgan’s argument that Prater’s recantation is
more consistent with the physical evidence than his
original trial testimony: while Prater’s recantation does
square with the physical evidence presented at trial, the
Illinois Supreme Court, in rejecting Morgan’s argu-
ments, concluded that the original trial testimony—both
Prater’s and Gregson’s—was not inconsistent with the
physical evidence. For instance, Morgan contends that
the photograph of Motley’s body on the floor of the
doorway is inconsistent with testimony indicating that
Motley was shot while sitting on the loveseat. But the
Illinois Supreme Court pointed out that both Prater’s
and Gregson’s original testimony indicated that the
body was moved from its location near the loveseat
during the cleanup attempt.
Morgan next argues that the absence of blood found on
or around the loveseat is an anomaly. The Illinois
Supreme Court, however, concluded that the absence of
blood on the loveseat was consistent with Gregson’s
testimony that, after Morgan shot Motley, his body
flew off the loveseat and landed nearby on the floor.
Likewise, the Illinois Supreme Court concluded that
the forensic evidence indicating that the shot killing
Merkson was fired from a distance of at least 18 inches
did not contradict Prater’s original testimony that the
defendant was four or five feet from Merkson when he
shot him.
It bears repeating that Morgan faces a stringent stan-
dard. See Collins v. Gaetz, 612 F.3d 574, n. 5 (7th Cir. 2010).
While some of the physical evidence does conform with
12 No. 10-3155
Prater’s recantation, that evidence, as noted by the
Illinois Supreme Court, also fits in with Prater’s
trial testimony. In the end, the Illinois Supreme Court
was unconvinced that, based on the physical evidence,
Prater’s recantation was more convincing than his trial
testimony. Prater’s trial testimony, in light of the
physical evidence, may indeed require a “stretch of the
imagination,” as suggested by the district court. But we
cannot conclude that the Illinois Supreme Court’s
decision to accept one set of events over another, when
both are supported by the same physical evidence, is
against the clear and convincing weight of the evidence.
See Wood v. Allen, 130 S.Ct. 841, 849 (2010) reh’g denied, 130
S.Ct. 1942 (2010) (“[S]tate-court factual determination is
not unreasonable merely because the federal habeas
court would have reached a different conclusion in the
first instance.”).
Next, the claim of police coercion: as further evidence
that Prater’s recantation was credible, Morgan points to
the testimony that the prosecutor and police coerced
Prater into implicating Morgan as the murderer. The
Illinois Supreme Court rejected this argument, crediting
the police officers’ and prosecutor’s testimony over
testimony offered by Cynthia Ruwe, Rosemary Thomas,
and Lemuel Bell. Here, the Illinois Supreme Court explic-
itly found Ruwe and Thomas incredible, noting that
“neither of these witnesses was independent. They both
had personal relationships with Prater or [Morgan].”
The Illinois Supreme court’s decision to credit the
testimony of Sergeants Thomas Whalen and Michael
No. 10-3155 13
Flynn and Assistant State’s Attorney Thomas Epach
over Prater’s, Ruwe’s, and Bell’s testimony is not against
the clear and convincing weight of the evidence. This
decision properly stemmed from the trial court’s in-court
appraisal of the witnesses’ demeanor and credibility.
Morgan also asserts that Prater’s claim of coercion is
corroborated by evidence that the same state agents
coerced a suspect in an unrelated case. The Illinois Su-
preme Court, however, like the trial court, declined to
consider that evidence noting that “[t]he circuit court
has wide discretion to limit the type of evidence it will
admit at a postconviction evidentiary hearing.” In
agreeing with the trial court, the Illinois Supreme Court
distinguished the two cases emphasizing that Prater,
unlike the suspect in the other case, was never beaten, was
not denied access to his attorney, and was not questioned
after he asked for his attorney.
The Illinois Supreme Court’s refusal to consider evi-
dence relating to other incidents of coercion by the same
state agents was not unreasonable within the meaning
of § 2254(d)(2). Here, the Illinois Supreme Court distin-
guished the instant case from the Johnson case and
found the Johnson case too dissimilar to enter into its
analysis. We will not accept Morgan’s invitation to
second guess the Illinois Supreme Court’s reasoning
and remain unpersuaded that clear and convincing evi-
dence establishes that the state court erred by favoring
the state agents’ testimony over testimony offered by
Bell and Ruwe. Nor will we conclude that the state court
erred in rejecting Prater’s claim of coercion.
14 No. 10-3155
Finally, Morgan points to Motley’s and Merkson’s
violent background and prior convictions for armed
robbery in support of Prater’s recantation, which claims
that Morgan killed Motley in self-defense. Morgan
also asserts that Prater’s new story provides a more
“plausible explanation” for his “otherwise illogical be-
havior” on the night of the murders.
It was not against the clear and convincing weight of
the evidence for the Illinois Supreme Court to reject
Prater’s new account—even if it was a more “plausible
version of events”—in favor of Prater’s original testi-
mony, which, as the Illinois Supreme Court noted, “made
sense too.” Indeed, as the court correctly noted, “plausi-
bility” is not the test. Motley’s and Merkson’s history of
violence merely provides support for another plausible
scenario, the rejection of which is not objectively unrea-
sonable. Again, we point out that “[a] decision is not
objectively unreasonable unless it falls ‘well outside
the boundaries of permissible differences of opinion.’ ”
Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir. 2009)
(quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.
2002)).
C. Morgan’s Brady Claim
Next we turn to Morgan’s Brady claim. Morgan argues
that the prosecution violated his right to a fair trial under
Brady v. Maryland, 373 U.S. 83, 87 (1963), by providing false
or incomplete disclosure of two 1982 drug cases filed
against Gregson shortly after the murders occurred and
alleged preferential treatment she received on those
No. 10-3155 15
charges in exchange for her trial testimony against Mor-
gan. Gregson was arrested on April 16, 1982—after the
murders but before Morgan’s trial—for possessing a
controlled substance and marijuana; she was arrested
again on May 4, 1982 and charged with two counts of
possessing a controlled substance and one count of pos-
sessing marijuana. The charges in both arrests were
nol prossed.
Morgan had to establish two things to prevail on his
Brady claim. He first had to show that the govern-
ment failed to give him evidence favorable to his
defense, that would tend to show his innocence, or that
could be used to impeach witnesses at trial. Brady, 373 U.S.
at 87. Second, Morgan had to show that the evidence
suppressed was material; that “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Carvajal v. Dominguez, 542 F. 3d 561, 566-67 (7th
Cir. 2008) (quoting Strickler v. Greene, 527 U.S. 264, 281
(1999)).
Addressing the first Brady element, we agree with the
district court that the prosecution failed to supply
the defense with information during Morgan’s trial
that was impeaching. The government’s failure to
disclose the criminal history of Gregson or a promise
of leniency—if there was one—deprived Morgan of
impeachment material. We now turn to whether the
suppressed evidence was material.
Morgan claims that the Illinois supreme Court made
two errors—one under § 2254(d)(2) and another under
16 No. 10-3155
§ 2254(d)(1)—in concluding that the suppressed evidence
was not material. Morgan first submits that the Illinois
Supreme Court engaged in an objectively unreasonable
determination of facts.
On habeas review, we are, again limited by 28 U.S.C.
§ 2254(d). Essentially, Morgan must show that the
Illinois Supreme Court’s determination of facts was
unreasonable, “that is, lying well outside the bounds of
permissible differences of opinion.” Toliver v. McCaughtry,
539 F.3d 766, 774 (7th Cir. 2008) (internal citation omit-
ted). Under § 2254(d)(2), 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. Ward v. Sternes, 334 F.3d 696, 704 (7th
Cir. 2003). Applying this deferential standard of review,
we conclude that the Illinois Supreme Court did not
violate § 2254(d)(2) when it found that there was no
reasonable probability that disclosure of the suppressed
evidence would have led to a different result.
We begin by pointing out that there was no direct
evidence that Gregson was induced to testify against
Morgan in exchange for favorable treatment on her
two arrests. In fact, the Illinois Supreme Court found, and
the district court agreed, that Morgan’s argument that
Gregson testified against him in exchange for favorable
treatment was “nothing more than unsubstantiated
speculation.” But even if there were evidence that the
State treated Gregson favorably in exchange for her
testimony, we would still conclude that the court did
not err under § 2254(d)(2). In analyzing whether the
No. 10-3155 17
suppressed evidence was material under Brady, the
court noted that Prater’s trial testimony and other inde-
pendent evidence corroborated Gregson’s trial testimony
implicating Morgan in the murders. For instance, the
court noted that Prater testified that he heard Motley
make a remark to Morgan, then heard a shot and saw
Morgan step into the kitchen holding the shotgun. The
court also noted that Prater testified that he saw
Morgan point the gun at Merkson’s head, looked away,
and heard a shot; he then saw Morgan holding the gun
as he stood near Merkson’s body. This account, the court
recognized, was corroborated by Gregson. Moreover, the
court pointed out that when the police encountered
Morgan the day after the murders, he did not stop but
continued walking and pointed a revolver at the offi-
cers. And that, when police officers apprehended
Morgan, they found a revolver matching bullets re-
covered in Prater’s apartment and the black notebook
that Prater and Gregson identified as the one recovered
from Motley’s body. Lastly, the court found that the
testimony of Prater’s downstairs neighbor, Frank Blume
regarding the timing of the shots corroborated both
Prater and Gregson’s chronology of the murders.
The Illinois Supreme Court also attached significance
to the independent evidence that corroborated Gregson’s
trial testimony of Morgan’s rape and kidnapping. For
example, Gregson testified that Morgan committed two
murders, kidnapped her, and struck and punched her,
before raping her. This testimony, the court noted, was
corroborated at trial by the testimony of the motel clerk
that he saw Morgan point a gun at Gregson and throw
her headfirst into a car.
18 No. 10-3155
After considering the evidence cited above—evidence
other than Gregson’s trial testimony—the court noted that
the “actual significance of . . . [her] criminal charges is
questionable,” and concluded that no reasonable proba-
bility exists that, had the State fully disclosed Gregson’s
criminal history, the result of the proceeding would
have been different. In fact, the court was clear to point
out that “[i]n the end, defendant’s postconviction
petition turned on a single factor: the credibility of Elijah
Prater.” We do not agree that the Illinois Supreme Court
engaged in an objectively unreasonable determination
of facts in concluding that the suppressed evidence was
not material under Brady.
Morgan asserts that the court “failed to undertake the
analysis demanded by Brady.” Again, our review under
the “unreasonable application” clause of § 2254(d)(1) is
limited to whether the court extended a rule to an inap-
plicable context or refused to extend a rule to an applicable
context. Neither of these situations is present here. After
making the threshold determination that Brady was
violated by nondisclosure, the court went on to address
Brady’s second prong—whether the suppressed evidence
was material. Here, the court properly weighed the
significance of Gregson’s criminal history and found it
“questionable”—concluding that Gregson’s trial testimony
was corroborated by other evidence and that there is
no reasonable probability that the outcome of the pro-
ceeding would have been different, had the state
disclosed Gregson’s criminal history. We will not disturb
the Illinois Supreme Court’s reasonable application of
Brady.
No. 10-3155 19
D. Morgan’s Strickland Claim
Morgan also contends that he was deprived of his
constitutional right to effective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984). According to
Morgan, his counsel failed to perform the research and
investigation necessary to assert a mental state de-
fense—voluntary intoxication and an unreasonable
belief of self-defense—at the guilt phase of his trial.
Morgan also claims that his counsel was ineffective as a
result of being absent during portions of his trial. These
absences, according to Morgan, require a presumption
of prejudice under Cronic, or, alternatively, under Strick-
land. Lastly, Morgan argues that he suffered “overall
prejudice” from his counsel’s deficient performance.
We find that Morgan is not entitled to habeas relief on
any of these grounds.
To prevail under Strickland, Morgan must demon-
strate that his counsel, Wolf Levin, provided deficient
assistance and that there was prejudice as a result. See
Strickland, 466 U.S. at 690. To establish deficient perfor-
mance, Morgan must show that his “counsel’s representa-
tion fell below an objective standard of reasonableness.”
Id. at 688. To establish prejudice, Morgan must demon-
strate “a reasonable probability 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.” Id. at 694. It is not enough “to show that the
errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693. Counsel’s errors must be “so
20 No. 10-3155
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. at 687. The likelihood of
a different result must be substantial, not just conceiv-
able. Id. at 693.
“Surmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473,
1485 (2010). And establishing on habeas review that a
state court unreasonably applied Strickland under
§ 2254(d) is “all the more difficult.” Harrington v. Richter,
131 S.Ct. 770 (2011).
We need not consider the first prong of the Strickland
test if we find that counsel’s alleged deficiency did not
prejudice the defendant. Matheney v. Anderson, 253
F.3d 1025, 1042 (7th Cir. 2001). As the Court noted in
Strickland, “[i]f it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed.” 466 U.S. at 697. We heed this
advice and now explain why the Illinois Supreme Court
did not err under § 2254(d) when it determined that
Morgan’s claim fails because he suffered no prejudice
under Strickland.
First, the court correctly identified the Strickland
standard and then, under the prejudice prong of
Strickland, considered each mental state defense that
Morgan argued should have been presented. Second,
after its analysis, the state court concluded that, because
none of Morgan’s proposed defenses would have been
successful, he was not prejudiced by a failure to
investigate and present those defenses.
No. 10-3155 21
The court recognized that although voluntary intoxica-
tion is “normally not a defense to the commission of a
crime, evidence that the intoxication was so extreme as
to suspend the power of reason may be used to negate
the existence of the mental state which is an element of
the crime.” Considering evidence of Morgan’s mental
impairments and affidavits from Gregson and Prater,
the court found that “nowhere in the affidavits relied
upon by defendant is there evidence that defendant’s
purported intoxication was so severe that he could
not form the requisite intent to support a first
degree murder conviction.” The court also concluded
that “there is no reasonable likelihood that testimony
that defendant was intoxicated at the time of the
murders would have successfully established the
defense of voluntary intoxication.” Based on the state
court’s findings, we cannot say that it was unreasonable
for the Illinois Supreme Court to conclude that
Morgan failed to show a reasonable probability of a
different result.
After rejecting the intoxication defense, the Illinois
Supreme Court evaluated Morgan’s likelihood of success
if he had argued that he acted on a belief of self-defense.
The court rejected this argument as well, finding that
Morgan failed to make a substantial showing that there
is a reasonable likelihood that the result of his trial
would have been different had be put on that defense.
Again, the Illinois Supreme Court correctly cited and
articulated Strickland’s standard and properly considered
Morgan’s proposed self-defense claim under its prejudice
22 No. 10-3155
prong. After citing the requirements for a self-defense
claim in Illinois, the court concluded that Morgan’s
claim was barred as a matter of law because Morgan
could not demonstrate that “either victim used unlawful
force” against Morgan. In fact, the court concluded that
the evidence overwhelmingly established that Morgan
was the aggressor. Therefore, the court’s conclusion
that, had Morgan presented a self-defense claim, there
is no substantial likelihood that his trial result would
have been different and was not based on an unrea-
sonable application of Strickland. For the same reasons,
the Illinois Supreme Court applied Strickland in holding
that Morgan was not prejudiced by the absence of a
voluntary manslaughter jury instruction.
Morgan’s assertion that the Illinois Supreme Court
unreasonably determined that he was the initial
aggressor also fails. As the Illinois Supreme Court was
clear to point out, “there is no evidence of record that, at
the time of the shootings, either Merkson or Motley made
any threats of use of unlawful force against defendant
that would lead a person to reasonably believe that
there was an imminent danger of death or great bodily
harm that required the use of deadly force in self-de-
fense.” In determining that Morgan was the initial aggres-
sor, the court cited that the evidence demonstrates that
Motley was shot while sitting on the couch making
phone calls; Merkson was shot in the back of the head
after Morgan asked him to kneel on the floor; and that
at the time of Merkson’s shooting, Morgan was armed
with a shotgun and Motley’s handgun. Given the
strength of that evidence, it was certainly not against
No. 10-3155 23
the clear weight of the evidence to conclude that Morgan
was the aggressor.
Morgan next argues that we should not apply the
Strickland test but, instead, apply the standard set forth
in United States v. Cronic because his attorney was
absent during the following critical states of his trial:
part of voir dire, opening statements, arguments on the
admissibility of evidence, and the examination of seven
state witnesses. See United States v. Cronic, 466 U.S. 648,
654 n. 11 (1984). These absences, Morgan argues, require
a presumption of prejudice. We do not agree and find
that the Strickland test governs Morgan’s claim.
Again, to find an error under the “contrary to” clause
of § 2254(d)(1), the Illinois Supreme Court must have
“applie[d] a rule that contradicts the governing law set
forth in [Supreme Court] cases.” Calloway, 512 F.3d at 943.
The Supreme Court has consistently limited the presump-
tion of prejudice to cases where counsel is physically
absent at a critical stage. See Penson v. Ohio, 488 U.S. 75,
88 (1988) (applying Cronic where defense counsel errone-
ously moved to dismiss any appeal leaving the petitioner
“completely without representation during the appeals
court’s actual decisional process”); White v. Maryland,
373 U.S. 59, 60 (1963) (presuming prejudice where de-
fendant pleaded guilty at a preliminary hearing before
he was appointed counsel); Hamilton v. Alabama, 368 U.S.
52, 54-55, (1961) (presuming prejudice where defendant
was completely without counsel when he pleaded guilty
to a capital charge and irrevocably waived other pleas);
see also Siverson v. O’Leary, 764 F.2d 1208, 1217 (7th Cir.
24 No. 10-3155
1985) (applying a presumption of prejudice where
the defendant’s trial counsel was absent during jury
deliberations and at the return of the verdicts). Here, a
counsel was physically present at all stages of the
litigation—Levin’s co-counsel, Steven Decker repre-
sented Morgan in Levin’s absence—and therefore, we
cannot conclude that Morgan was denied counsel at
critical stages of trial. The Illinois Supreme Court’s deter-
mination to apply Strickland, instead of presuming preju-
dice under Cronic, was not contrary to clearly estab-
lished federal law.
The Illinois Supreme Court concluded that Morgan did
not suffer prejudice per Strickland as a result of Levin’s
absences. The record shows that, during the trial, Levin
served as Morgan’s primary counsel, conducted the
direct examination of two of the three defense witnesses,
cross-examined the State’s two key eyewitness, and
delivered the closing argument. In Levin’s absence,
Decker conducted jury selection, delivered the opening
argument, conducted the direct examination of one
defense witness, and cross-examined several State wit-
nesses. In doing so, Decker advanced the defense’s
theory of the case—that the State could not prove
beyond a reasonable doubt that Morgan had committed
the crimes for which he was charged.
The Illinois Supreme Court determined that there
was no reasonable probability that the outcome of Mor-
gan’s trial would have been different had Levin not
been absent. This conclusion was not against the clear
and convincing weight of the evidence; rather, the court
No. 10-3155 25
reasonably concluded that Decker competently filled
in for Levin, and that consequently, Morgan was not
prejudiced. Since Morgan has not demonstrated any
prejudice under his ineffective assistance claim, his
claim for overall prejudice fails. See Alvarez v. Boyd, 225
F.3d 820, 825 (7th Cir. 2000) (petitioner could not
prevail on his cumulative effect argument because he
failed to show that there was even a single error, much
less two).
In sum, Morgan is not entitled to habeas relief on the
basis of his ineffective assistance of counsel claim.
E. Morgan’s Giglio Claim
Morgan also contends that the State violated his due
process rights by presenting the false testimony of Prater
and Gregson. Giglio v. United States, 450 U.S. 150, 154
(1972). Whether the State violated Morgan’s due process
rights by a knowing use of perjured Prater testimony
turns on Prater’s recanted testimony. We have ac-
cepted the Illinois Supreme Court’s finding that Prater’s
recantation was incredible. Accordingly, the rejection of
Morgan’s Giglio claim as to Prater was not unreasonable.
Morgan’s Giglio claim as to Gregson also fails. Here,
Morgan relies on circumstantial evidence of a leniency
agreement to support his contention that Gregson’s
testimony was perjured. But even if a leniency agree-
ment existed, it does not follow that Gregson’s trial
testimony was false. The only evidence that Morgan can
muster to support his argument that Gregson’s testimony
26 No. 10-3155
was false is Prater’s recantation. But as we just explained,
the State reasonably concluded that Prater’s recantation
was incredible. The Illinois Supreme Court’s rejection
of Morgan’s Giglio claim as to Gregson was not unrea-
sonable.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the denial of
Morgan’s petition for writ of habeas corpus.
11-7-11