In the

United States Court of Appeals

For the Seventh Circuit

Nos. 06-2768 & 06-3281

WILLIE POLE,

Petitioner-Appellant,

v.

AUSTIN RANDOLPH, Acting Warden

of Logan Correctional Center,

Respondent-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 3393—Charles R. Norgle, Sr., Judge.

ARGUED SEPTEMBER 21, 2007—DECIDED JULY 7, 2009

Before EASTERBROOK, Chief Judge, and KANNE and

ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Willie Pole was convicted of

first degree murder and attempted armed robbery in

the State of Illinois. He appeals the denial of his petition

for a writ of habeas corpus, arguing that his attorney provided ineffective assistance at his trial and on appeal.

We affirm the district court’s denial of his petition.
2 Nos. 06-2768 & 06-3281

I.

We begin with the facts as presented at trial. Bernard

Jackson went to work on September 27, 1994, even though

it was his day off. Accompanied by his girlfriend,

Carmania Payton, and his seven-year-old son, Terrence,

he hoped to earn some extra money at the E & J Tire

Service shop where he worked with his brother, Larue.

Bernard arrived at the shop a few hours before its 7 p.m.

closing time, joining his brother and another worker,

Antoine Patillo. Patillo left work a little early that day

and shortly after he left, Willie Pole arrived at the shop

looking for him. Pole asked Larue where Patillo was, and

Larue told him Patillo had just left. As the two men

were talking, a red van pulled into the shop. Three men

in the van wanted to exchange the van’s tires with replacements they were carrying in the back of the vehicle.

Even though the shop’s owner was about to close for

the day, Bernard offered to stay and change the tires.

While Bernard waited on the men in the van, Pole

asked Larue whether the three men were members of the

Gangster Disciples street gang. Larue replied that he did

not know. Pole then used a payphone at the shop to

make a call, and Larue left work to go to a nearby store.

The shop’s owner went to a business next door to the

tire shop, leaving Bernard to work on the van.

Pole was a member of the Blackstone gang, a rival of

the Gangster Disciples. After making a phone call, he

left the shop and met up with other members of the

Blackstones, including Ramon Hamilton. He told

Ramon about the Disciples at the tire shop, and they
Nos. 06-2768 & 06-3281 3

hatched a plan to rob the Disciples of their jewelry. They

drove past the shop to verify that the men were still

there, and made gang signs identifying themselves and

disparaging their rivals. They parked and began to approach the tire shop through the alley behind it. Pole

pulled up his hood to hide his face. Ramon carried a

handgun and wore a ski mask.

Two of the men that Pole believed were Disciples were

standing near the van at the time. The third was inside

the shop. Carmania Payton and Terrence were also standing near the van, a few feet away from Bernard as he

worked to change the tires. The shop’s owner was just

returning because someone had come to tell him there

was going to be trouble at the shop. After asking

Bernard if everything was alright, the shop’s owner

turned to walk away. As he turned, he heard a gunshot.

Although Pole now denies that he pulled the trigger, he

later told the police that Ramon showed him how to

release the safety, and he pointed the gun at the

Disciples standing near the van and fired. He was

standing forty or fifty feet away from his target at the

time. The badly aimed bullet struck Bernard in the

back and exited through his chest. He fell to the ground

in front of his girlfriend and son, exclaiming, “I think

I’m hit.” The shop’s owner called for everyone to get

down. Willie Pole and Ramon Hamilton fled the scene.

When everything appeared to be clear, everyone stood

up except Bernard.

Pole placed the gun in his car, but then abandoned the

car. He and Ramon fled in separate directions. Larue
4 Nos. 06-2768 & 06-3281

returned to a frantic scene. The police and an ambulance

were summoned, and Bernard was pronounced dead at

a nearby hospital less than an hour later. Larue and

other witnesses at the scene told the police about Pole’s

visit to the shop, his inquiry about the men in the van,

and the car that drove by flashing gang signs before

the shooting. The police began to look for the car. At

about this same time, Pole showed up at Ramon Hamilton’s house. Ramon’s twelve-year-old sister, Andrea

Hamilton, answered the door. Pole asked her to walk

with him to retrieve his car because there were police in

the area. As Andrea and Pole walked to the car, they

met Karen Wills, a friend of Andrea’s, and she joined

them in the walk back to the car. When they got to the

car, Pole removed a gun and a glove from the car and

handed them to Andrea, asking her to hide them for

him. He told her he had shot a “Sipe,” i.e., a Disciple, and

he instructed her to place the gun in the front of her

pants. All three entered the car and Pole drove Andrea

home. Andrea hid the gun, still loaded except for the

single spent bullet, in a drawer and placed the glove on

her dresser. After dropping Andrea off, Pole told Karen

Wills that he had confronted some Disciples and fired

a shot at them.

Two police officers spotted Pole and Wills shortly

thereafter, in a car matching the description given by

witnesses to the crime. They took the two into custody

and at approximately 8:30 p.m., witnesses from the tire

shop confirmed that Pole was the man who had asked

about the alleged Disciples and then flashed gang

signs shortly before the shooting. Wills told the police
Nos. 06-2768 & 06-3281 5

that she did not know what was going on, but that Pole

had given a package to Andrea Hamilton. Pole and

Wills then led the police to the Hamilton home. In the

meantime, Ramon Hamilton had arrived home and

learned that Pole had asked Andrea to hide the gun.

Ramon took the gun from Andrea’s drawer and hid it

outside his house. When the police arrived, Andrea told

them she had given the gun to Ramon, who subsequently handed over to the police officers both the gun

and the glove. Pole’s name was written on the glove. The

officers took Pole, Wills, Ramon and Andrea Hamilton

and the Hamiltons’ mother, Bonnie, to the police station

for questioning.

Two officers questioned Pole at first. He told them he

had gone to the tire shop to see Patillo, who owed him

some money. After he saw the three men he believed

were Gangster Disciples, he went around the corner and

told some of his cohorts from the Blackstones that there

were “Sipes” at the tire shop. The Blackstones got into

two cars and drove past the tire shop. Pole told the

officers that, at Ramon’s suggestion, the Blackstones

decided to rob the Disciples. Ramon retrieved a gun

from his house, and Pole told the officers he went along

because he was considered a “pigeon” or a “white boy”

among the Blackstones and he wanted to prove himself.

In this first statement, Pole told the police that Ramon

was showing him how to work the safety on the gun

when it accidentally discharged in the direction of the

van. Pole told the officers that he panicked and ran.

After questioning Ramon, the officers came back to Pole

and told him his story did not match Ramon’s version
6 Nos. 06-2768 & 06-3281

Karen Wills’ statement is not part of the record on appeal 1

but Pole seems to concede that her trial testimony was consistent with her written statement. Bonnie Hamilton was

present for the questioning of both Ramon and Andrea because

they were minors.

of events. Pole then told the officers a story similar to his

first account, but this time stated that Ramon was

wearing a ski mask, and that Ramon directed Pole to

put up his hood as they walked through the alley toward

the back of the tire shop. In this second version, Pole

admitted that he pointed the gun at the men near the

van and fired a single shot before fleeing.

The police officers and an assistant state’s attorney

(“ASA”), Tom Biesty, then interviewed Andrea and

Ramon Hamilton, and Karen Wills as well, taking

written statements from each before returning to Pole to

record his statement. ASA Biesty took Andrea Hamilton’s 1

statement at 1:30 a.m., and she confirmed that Pole had

asked her to walk to the car with him. She reported

that Pole told her he had shot someone at the tire shop,

and that they met up with Karen Wills on the way to

Pole’s car. She said that Pole asked her to hide the gun

and glove once they reached the car. She had given the

gun to her brother Ramon when he came home asking

about it. Both Andrea and Bonnie Hamilton signed each

page of Andrea’s statement.

At 4:20 a.m., approximately nine hours after the

shooting, ASA Biesty recorded Ramon’s statement.

Ramon told Biesty that Pole came to his house after
Nos. 06-2768 & 06-3281 7

spotting the Gangster Disciples at the tire shop. Pole

asked Ramon for a gun so that he could rob the

Blackstones of their jewelry. Ramon and Pole drove past

the shop in separate cars, Ramon with three other

Blackstones—Lontray, Thaddeus and Thomas—and Pole

driving behind them in his own car. The group flashed

gang signs and then parked in the alley behind the

shop. Ramon released the safety on the gun at Pole’s

request, and Pole then walked toward the shop and

fired a shot at the Disciples. The two fled in different

directions but met up again later. Pole told Ramon that

he had given the gun to Andrea. Ramon went home

and retrieved the gun from Andrea and hid it near the

side of his house. Both Ramon and his mother, Bonnie

Hamilton, signed each page of his statement.

ASA Biesty then met with Pole to take his statement.

The shooting had occurred between 7 and 8 p.m., and it

was now 6:45 a.m., approximately eleven hours after

Pole had been taken into custody. As ASA Biesty later

testified, he sat next to Pole, read him his rights, and

wrote out Pole’s statement by hand. Biesty had Pole

read back to him the first paragraph of the statement to

make certain that Pole could read and understand it. In

the statement, Pole admitted he was a member of the

Blackstone gang. He told Biesty that after seeing the

three men at the tire shop, he went to Ramon’s house

and met with Ramon, Lontray, Thaddeus and Thomas,

fellow Blackstones that Pole identified only by their

first names. Ramon suggested that they rob the Disciples

of their jewelry. Ramon told the group that he had a

gun. Pole told ASA Biesty that he took the gun from
8 Nos. 06-2768 & 06-3281

Ramon and that they then drove up to the alley behind

the tire shop. There, Pole put on a white work glove

marked with his name, the same glove later retrieved

from Ramon’s house. He pulled up the hood of his sweatshirt and Ramon put on a ski mask. They agreed that

Pole would hold the gun on the Disciples while Ramon

searched their pockets and took their jewelry. Pole

asked Ramon to take the safety off the gun, and Ramon

complied. Pole told ASA Biesty that he “popped a round

off” at the Disciples and that he and Ramon then fled.

Pole said that he returned to his car with Andrea, told

her he had “popped” some Disciples, and asked her to

hide the gun and glove. Pole signed each page of the

statement and also initialed a change in the spelling of

Ramon’s name.

Ramon pled guilty to murder and attempted armed

robbery, but Pole went to trial. Pole’s attorney moved to

suppress any oral or written statements that Pole made

the night he was arrested, claiming that he was not read

his rights prior to interrogation, that his statements were

not made knowingly or voluntarily, that his lengthy

interrogation continued after he invoked his right to

remain silent and his right to an attorney, that his statements were the result of physical and psychological

coercion, that his statements were provoked by confronting him with evidence obtained in violation of the

Fourth Amendment, and that authorities lied to Pole in

violation of the Fifth and Fourteenth Amendments. Counsel sought and obtained a hearing on the motion to suppress. At the hearing, the State presented testimony

from the police officers involved in Pole’s arrest and
Nos. 06-2768 & 06-3281 9

interrogation, and ASA Tom Biesty, all of whom refuted

Pole’s allegations. Pole’s attorney did not call Pole as a

witness and presented no evidence at the hearing,

relying entirely on cross-examinations of the state’s

witnesses to make his case. He argued that Pole was only

eighteen years of age at the time of the interrogation,

had limited education, had never been interrogated

before, was in custody for many hours before he signed

the confession and did not give the statement voluntarily.

The court found that the state’s witnesses were credible,

that Pole had been apprised of his rights prior to interrogation and that there was no evidence of coercion. The

court denied the motion to suppress.

At the trial, Andrea Hamilton testified consistently

with her signed statement. Karen Wills testified that she

had encountered Pole and Andrea when she was

walking home on the day of the murder. She went with

them to retrieve Pole’s car. When they arrived at the car,

she saw Pole give Andrea a black, metal object, and

heard him ask Andrea to “put it up” for him. After dropping off Andrea at her home, Pole told Karen Wills he

had “gotten into it” with some Disciples and that he had

shot at them. Wills testified that shortly thereafter, she

and Pole were stopped by the police. After Wills told the

officers she had seen Pole give something to Andrea, the

police officers drove the pair to Andrea’s house. The

officers later emerged from the house with all three

Hamiltons.

Pole’s written confession was entered into evidence,

and the officers and ASA Biesty testified about Pole’s
10 Nos. 06-2768 & 06-3281

oral and written admissions made within hours of the

murder. A forensic investigator for the police department testified that no physical evidence was found at

the scene, a gunshot residue test of Pole’s hands was

taken but he did not know the result, and no bullet

had been recovered because it had passed through the

victim’s body, exiting his chest. One of the officers

testified that he found a shell casing matching the gun

in the grass near the scene. Pole’s attorney argued to the

jury that the shooting was accidental, that no robbery

was intended and no steps had been taken towards a

robbery, and that the gun had discharged unexpectedly

while the safety was being manipulated. The attorney

successfully argued over the prosecution’s objection

that the jury should be instructed on involuntary manslaughter as an alternative to murder. This was not a

small victory given that Pole was charged with murder

and attempted armed robbery, allowing the state to

argue that he either intentionally shot at the Disciples or

that Bernard Jackson was killed in the course of another

felony. Under the felony murder theory, Pole’s argument

that he did not intentionally shoot at Bernard Jackson

would not have entitled him to an involuntary manslaughter instruction unless there was some evidence

that he did not intend to commit robbery together

with evidence that the shooting was accidental. Except

for Pole’s initial statement to the police, there was no

evidence in the record supporting an involuntary manslaughter charge. The court called it a close issue, but

gave Pole the benefit of the doubt and issued the involuntary manslaughter instruction. Perhaps because Pole
Nos. 06-2768 & 06-3281 11

had confessed to at least five different people within

twelve hours of the murder and had signed a written

statement detailing his actions that night, the jury had

little trouble returning a verdict finding him guilty of

murder and attempted armed robbery.

When the ink was barely dry on the verdict form, Pole

began complaining at his sentencing hearing that he did

not commit the crime, that his attorney failed to place

into evidence reports that no gunshot residue was

found on his hands or his glove, that he had wished to

testify but had deferred to his lawyer’s judgment out of

fear, and that he had been manipulated and coerced

into signing a confession. He claimed he had been led to

believe that the state’s attorney was there to help him,

and that he was young, inexperienced and exhausted

when he signed the confession. The court rejected Pole’s

claim of innocence and sentenced him to forty-four

years of imprisonment on the murder charge and fifteen

years on the attempted armed robbery conviction, to be

served concurrently.

II.

In his direct appeal, Pole argued that the trial court

failed to adequately inquire into his post-trial complaint

that his lawyer had failed to call a witness with exculpatory evidence. He also contended that the trial court

had erred in allowing the jury to hear evidence regarding Pole’s membership in a street gang. The exculpatory evidence, Pole explained, consisted of two favorable

gunshot residue tests. Pole contended that the swabs of
12 Nos. 06-2768 & 06-3281

his hands and tests of the glove were negative for

gunshot residue, and that the trial court should have

conducted an inquiry into his charge at sentencing that

his attorney failed to put into evidence the negative

gunshot residue test reports. Pole did not submit those

reports with his appeal. The appellate court noted that

Pole had not adequately raised the issue of ineffective

assistance of counsel because he did not request new

counsel and filed no pro se post-trial motion. The court

nevertheless considered the merits of Pole’s claim, and

determined that counsel’s strategy was to inform the

jury that the gunshot residue test was conducted but

that the prosecutor had not presented the results, leaving

the jury to infer the reports would have been favorable

to Pole. The appellate court continued that even if the

attorney erred in not going farther with this evidence or

the trial court erred in not pursuing Pole’s allegation

about his lawyer, there was no reasonable probability

that the outcome of the trial would have been any different had this evidence been admitted. The court noted

that the gunshot residue tests held little evidentiary

value in light of Pole’s signed confession and the other

ample evidence against him. Because the court did not

know the test results for Pole’s hands or the glove, and

because the other evidence of his guilt was overwhelming, the court concluded that Pole had failed to

show prejudice from the alleged errors.

Addressing Pole’s claim that the court erred in admitting evidence of his gang membership, the appellate

court found that this evidence was highly relevant to the

crime charged because the shooting was alleged to be
Nos. 06-2768 & 06-3281 13

motivated by gang rivalry. One of the three men in the

red van had been wearing the colors of the Gangster

Disciples, and Pole had asked Larue about the men’s

gang affiliation shortly before the shooting. Moreover,

Pole had confessed to a police officer that he went to

confront the Disciples because the Blackstones considered him a “pigeon” or a “white boy” and he wanted to

prove himself to his fellow gang members. Finally, the

court rejected Pole’s argument about the gang affiliation

evidence because the state had used the evidence only

for proper purposes throughout the trial. The appellate

court therefore affirmed Pole’s conviction. The Illinois

Supreme Court declined to hear Pole’s case on direct

appeal.

Pole then filed a pro se petition for post-conviction

relief in the state court, citing three grounds for relief.

First, he contended that his trial attorney was ineffective

for failing to present witnesses at the hearing on the

motion to suppress and for not allowing Pole himself to

testify at the motion to suppress. Second, he argued that

his trial counsel was ineffective because he failed to

investigate exculpatory witnesses and eyewitnesses to

the crime, and did not allow Pole to testify in his own

defense. Third, he claimed that his appellate counsel

was also ineffective for failing to raise in his direct appeal

the issues he was now raising in his post-conviction

petition. He filed numerous statements in support of his

post-conviction petition including three affidavits of his

own (R. 13, at C51, C57 and C61), an affidavit from

Andrea Hamilton (R. 13, at C72), an affidavit from Ramon
14 Nos. 06-2768 & 06-3281

Like Pole, Ramon signed a confession in the early morning 2

hours of September 28, 1994, fewer than twelve hours after the

murder. Ramon executed his affidavit more than four years

later, in November 1998.

Hamilton (R. 13, at C63), an affidavit from Bonnie Hamil- 2

ton (R. 13, at C78), and statements from his mother (R. 13,

at C83), sister (R. 13, at C84 and C85), and a fellow inmate

(R. 13, at C81) supporting his requests for relief. The circuit

court dismissed the petition without an evidentiary

hearing and Pole appealed.

The Illinois Appellate Court took up Pole’s case for a

second time. In response to the state’s argument that

Pole had waived the arguments he was now raising, the

court relaxed the rule for waiver because Pole claimed

ineffective assistance both at trial and on appeal. The

court therefore decided to address Pole’s arguments on

their merits. On the ineffective assistance claim based on

counsel’s performance at the suppression hearing, the

appellate court reviewed the hearing transcript and

determined that the claim was without merit. Specifically,

the court noted that defense counsel’s strategy was to

paint his client as so young, inexperienced and naive

about the justice system that his confession was involuntary. To that end, he cross-examined the state’s witnesses and argued his position to the court. The court

found that counsel’s conduct was not substandard.

In addressing Pole’s claim that his trial lawyer failed

to investigate the case by failing to locate and call two

eyewitnesses, Ramon Hamilton and Lontray, the court
Nos. 06-2768 & 06-3281 15

opined that there was no factual basis to support the

claim. The court concluded (erroneously, as it turns out)

that Ramon’s affidavit indicated that Ramon was not

present when the fatal shot was fired. Pole had not submitted an affidavit from Lontray. Because Ramon and

Lontray could not have provided testimony that would

have changed the outcome of the trial, the court found

the argument without merit. The court therefore

affirmed the dismissal of the post-conviction petition,

and the Illinois Supreme Court again declined to hear

the appeal.

Pole then brought his case to federal court, seeking

habeas corpus relief based on ineffective assistance of

counsel. Pole listed two specific instances of ineffective

assistance of trial counsel: (1) counsel’s refusal to allow

Pole to testify at the hearing on the motion to suppress;

and (2) counsel’s failure to adequately investigate his

case. Pole contended that the motion to suppress was

critical to his case because a signed, written statement

implicating him in the shooting was the state’s best

evidence. Indeed, Pole argued, the prosecution had no

physical evidence linking him to the crime and presented

no eyewitnesses who could identify the shooter. Moreover, there was no real down side to Pole testifying, and

no chance of winning the motion without Pole’s testimony. Only he could have provided evidence that he was

tricked into signing the confession because he was extremely tired and high on marijuana, according to Pole.

He also argued that there was no strategic reason for

the failure to call him as a witness at the suppression

hearing. In explaining counsel’s inadequate investiga-
16 Nos. 06-2768 & 06-3281

tion, Pole noted that the affidavits he supplied constituted

new evidence that corroborated his account of the

shooting and undercut the state’s theory. The new evidence, according to Pole, consisted of recantations of

testimony of two of the state’s witnesses. Finally, Pole

argued that his appellate lawyer should have raised

the ineffective assistance of counsel issue in his direct

appeal.

The district court denied Pole’s habeas petition without

a hearing. The court adopted the factual findings of the

Illinois appellate court in its unpublished order deciding

the direct appeal. The court began by considering

whether Pole had adequately presented his federal

claims to the state courts because any claim not presented

to the state’s highest court is deemed procedurally defaulted. The court also noted that a federal court on

habeas review could not consider claims that a state

court had decided on state law grounds that were independent of the federal question and adequate to

support the judgment. The court noted as an example of

this rule the issue of waiver, which is considered an

independent and adequate state law ground that bars

habeas relief. The court also noted, however, that waiver

bars federal review only when the last state court to

consider the question actually relied on procedural

default as the basis for its decision. Turning to Pole’s claim

of ineffective assistance of counsel, the court found

that Pole raised these issues in his direct appeal, that the

Illinois Appellate Court’s decision was based on independent state grounds adequate to support the judgment, and
Nos. 06-2768 & 06-3281 17

This finding is puzzling because the only issues Pole raised in 3

his direct appeal were related to the failure of his attorney to

bring in evidence of the favorable gunshot residue tests and the

trial court’s decision to allow evidence of his gang affiliation.

Perhaps the district court meant to refer to the Illinois Appellate

Court’s decision on the appeal of the dismissal of Pole’s postconviction petition, where Pole did raise many of the issues

he raises here. However, the Illinois Appellate Court expressly

declined in that decision to apply waiver to Pole’s claims, and

therefore the decision was not based on independent state

grounds adequate to support the conviction.

that the issues were therefore procedurally barred under

28 U.S.C. § 2254.3

The court nonetheless considered the issues on their

merits. The court rejected Pole’s claim that his attorney

was deficient for failing to call him as a witness at the

critical suppression hearing, instead relying on the

state’s witnesses. According to Pole, it was unreasonable

to expect the state’s witnesses to support Pole’s version

of events. But the court declined to second-guess

counsel’s strategic decision to rely on cross-examination

and not present Pole as a witness. As for Pole’s complaint

that trial counsel failed to investigate his case, the

district court found the supporting affidavits insufficient. Repeating the error that the Illinois Appellate

Court made in deciding the post-conviction appeal, the

district court found that Ramon’s affidavit indicated he

was not present at the time of the shooting, and that

information supplied by Ramon would not have

changed the outcome of the trial, negating any claim of
18 Nos. 06-2768 & 06-3281

ineffective assistance. Finally, because the district court

had already concluded that trial counsel was not ineffective, the court also rejected Pole’s claim that his appellate

counsel was ineffective for failing to raise the issue of

trial counsel’s ineffectiveness. The court therefore denied

Pole’s petition.

Within ten days, Pole filed a pro se motion for reconsideration, again claiming ineffective assistance of counsel.

While that motion was pending, Pole filed a notice of

appeal from the court’s order denying his petition. He

also requested a certificate of appealability from the

district court. The court granted the certificate of appealability and then dismissed the motion to reconsider. The

court found that it lacked jurisdiction over the motion

to reconsider because it was an unauthorized attempt to

litigate a successive collateral attack on his sentence

without the permission of the court of appeals. Pole then

filed an amended notice of appeal that added the denial

of the motion to reconsider, and requested that this court

grant a certificate of appealability with respect to that

claim. In an Order issued on January 18, 2007, we found

that the district court erred in characterizing the motion

to reconsider as a successive habeas petition. We held that

the district court should have treated the motion as a

timely filed motion for reconsideration and decided it on

the merits. We therefore amended the certificate of

appealability granted by the district court to include

the denial of the motion for reconsideration and consolidated his appeal of the denial of the motion to reconsider with his original appeal of the denial of his petition.
Nos. 06-2768 & 06-3281 19

See generally Pole v. Firkus, Case Nos. 06-2768 & 06-3281,

Order (7th Cir. Jan. 18, 2007). We now consider Pole’s

appeals.

III.

On appeal, Pole contends that he is entitled to habeas

relief because his lawyer’s assistance did not satisfy

constitutional minimums. Pole now cites five instances

of counsel’s errors: (1) the failure to introduce the results

of the gunshot residue tests; (2) the failure to interview or

call Ramon Hamilton, an eyewitness whose testimony

would have exonerated Pole; (3) the failure to interview

key prosecution witnesses; (4) the failure to interview or

call other identified eyewitnesses; and (5) the failure to

call Pole to testify at the suppression hearing. Pole also

maintains that the district court erred in concluding

that his entitlement to habeas relief is procedurally barred.

The state counters that Pole forfeited any argument that

the state court unreasonably interpreted Ramon Hamilton’s affidavit. Moreover, the state adds, Pole’s habeas

petition argued only two operative facts in support of his

ineffective assistance claim, forfeiting or procedurally

defaulting all others including his contention about counsel’s failure to present the gunshot residue evidence.

Addressing Pole’s remaining claims for ineffective assistance individually and as a whole, the state posits that

Pole has not met his burden of demonstrating that counsel’s performance fell below constitutional minimums.
20 Nos. 06-2768 & 06-3281

A.

We must begin by sorting out the appropriate

standards of review and whether certain claims have

been waived or procedurally defaulted. Our review of the

district court’s decision to deny Pole’s habeas petition is

de novo, and is governed by the terms of the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). Mack v.

McCann, 530 F.3d 523, 533 (7th Cir. 2008); Julian v. Bartley,

495 F.3d 487, 491-92 (7th Cir. 2007). See also Jackson v.

Frank, 348 F.3d 658, 661 (7th Cir. 2003); 28 U.S.C. § 2254.

“Habeas relief must not be granted unless the state

court’s adjudication of the claim (1) resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Julian, 495 F.3d

at 492. See also Jackson, 348 F.3d at 662; 28 U.S.C. § 2254(d).

“In assessing the reasonableness of the state court’s

decision, the federal court assumes that the state court’s

factual determinations are correct unless the defendant

rebuts them with clear and convincing evidence.” Julian,

495 F.3d at 492. See also 28 U.S.C. § 2254(e)(1).

The Supreme Court set forth the legal principles that

govern claims of ineffective assistance of counsel in

Strickland v. Washington, 466 U.S. 668 (1984). See also

Wiggins v. Smith, 539 U.S. 510 (2003). “An ineffective

assistance claim has two components: A petitioner must

show that counsel’s performance was deficient, and that
Nos. 06-2768 & 06-3281 21

the deficiency prejudiced the defense.” Wiggins, 539 U.S.

at 521 (citing Strickland, 466 U.S. at 687). To demonstrate

that counsel’s performance was deficient, a “defendant

must show that counsel’s representation fell below an

objective standard of reasonableness.” Strickland, 466

U.S. at 688; Wiggins, 539 U.S. at 521. That objective standard of reasonableness, in turn, is determined by prevailing professional norms. Strickland, 466 U.S. at 688;

Wiggins, 539 U.S. at 521.

To demonstrate prejudice from counsel’s deficient

performance, a “defendant must show that there is 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.”

Strickland, 466 U.S. at 694. If a defendant is unable to

make a sufficient showing on either component of the

Strickland standard, we need not consider the other component. Strickland, 466 U.S. at 697. See also Pearson v. Callahan,

129 S. Ct. 808, 821 (2009) (reaffirming the holding of

Strickland that leaves to the sound discretion of the

lower courts to determine the order of deciding the

two components).

“[I]neffective assistance of counsel is a single ground

for relief no matter how many failings the lawyer may

have displayed.” Peoples v. United States, 403 F.3d 844, 848

(7th Cir. 2005). We assess counsel’s work as a whole, and

“it is the overall deficient performance, rather than a

specific failing, that constitutes the ground of relief.” Id.

Under Section 2254’s exhaustion requirement, the peti-
22 Nos. 06-2768 & 06-3281

tioner must assert his federal claim through one complete round of state-court review, either on direct appeal or

in post-conviction proceedings. See § 2254(b)(1)(A); Stevens

v. McBride, 489 F.3d 883, 894 (7th Cir. 2007), cert. denied,

128 S. Ct. 2429 (2008); Lewis v. Sternes, 390 F.3d 1019, 1025

(7th Cir. 2004). Adequate presentation of a claim to the

state courts requires the petitioner to present both the

operative facts and the legal principles that control each

claim. Stevens, 489 F.3d at 894. See also Thompson v. Battaglia,

458 F.3d 614, 616 (7th Cir. 2006) (noting that the Rules

Governing Section 2254 Cases in the United States District

Courts require a petitioner to specify all grounds of relief

available to him and the facts supporting each ground).

Thus, if a petitioner fails to assert in the state courts a

particular factual basis for the claim of ineffective assistance, that particular factual basis may be considered

defaulted. Stevens, 489 F.3d at 894 (“the failure to alert

the state court to a complaint about one aspect of

counsel’s assistance will lead to procedural default”).

1.

Acknowledging these familiar standards, the state

asserts there is a “wrinkle” in determining the correct

standard of review here. The state notes Pole’s argument

that both the state appellate court and the district court

described Ramon Hamilton’s affidavit inaccurately, and

that, according to Pole, this was an unreasonable determination of the facts in light of the evidence presented

in the state court proceeding under § 2254(d)(2). Although

conceding that both courts did, in fact, read the affidavit
Nos. 06-2768 & 06-3281 23

incorrectly, the state argues that Pole forfeited any claim

under § 2254(d)(2) regarding Ramon’s affidavit by failing

to preserve it in the district court. The state further maintains that, even if Pole adequately preserved the issue

in the district court, we should nevertheless apply

§ 2254(d)(1) deference to the portions of the state court

analysis that were unaffected by the state appellate

court’s factual findings regarding Ramon Hamilton’s

affidavit.

We consider the claim of forfeiture first. Looking to

Pole’s pleadings in the district court, we note first that, in

his habeas petition, Pole correctly described Ramon’s

affidavit in detail and attached it to his petition. R. 1-1.

In his brief on the habeas petition, he argued that the

state court “erroneously concluded that Ramon’s

affidavit did not place him at the scene.” R. 31, at 14.

After quoting Ramon’s affidavit to illustrate the state

court’s error, Pole’s counsel argued that this “gross misrepresentation of the contents” of Ramon’s affidavit, in

combination with the other affidavits submitted, proved

that the state court unreasonably applied the facts. Later,

when it became apparent that the district court had

nonetheless made the same mistake as the state appellate

court, Pole again pointed out the error in his motion

for reconsideration. We find that Pole adequately preserved for review his claim under § 2254(d)(2) that the

state appellate court misread Ramon’s affidavit, and its

decision was thus based, at least in part, on “an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”
24 Nos. 06-2768 & 06-3281

As we noted, both the state and district courts concluded from the affidavit that Ramon was not present at

the shooting. That conclusion was inexplicable. Ramon

stated in the affidavit that he brought the gun to the

confrontation and that it discharged as he and Lontray

both tried to take the gun from Thaddeus in order to set

the safety. R. 13, at C63, ¶¶ 11-15. By every account of the

crime, including the state’s version, Ramon was present

at the shooting. Indeed, Ramon pled guilty to the same

murder and attempted armed robbery charges that Pole

faced. Pole has thus clearly and convincingly rebutted

the determination that Ramon was not present at the

shooting. The question now is what effect that error has

on our review of Pole’s claims in general. The state posits

that, even if Pole preserved that claim, and we find that

he did, § 2254(d)(1) deference should still apply to any

part of the state court’s analysis that was not affected

by that error. Pole does not argue otherwise.

In Wiggins, the Supreme Court analyzed a habeas claim

based on ineffective assistance of counsel where the

state court made a similar factual error in its analysis of

Wiggins’ claim. 539 U.S. at 528. Wiggins’ lawyer claimed

to have been aware of severe sexual abuse his client

suffered as a child, citing two documents the lawyer

possessed. The lawyer claimed that, based on the information contained in these documents, he made an informed and reasoned decision not to pursue the history

of abuse further or present it to the jury in mitigation at

sentencing. As the state conceded on appeal, however,

neither document contained any information about the

sexual abuse Wiggins suffered as a child. The Supreme

Court stated:
Nos. 06-2768 & 06-3281 25

The state court’s assumption that the records documented instances of this abuse has been shown to

be incorrect by “clear and convincing evidence,” 28

U.S.C. § 2254(e)(1), and reflects “an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding,” § 2254(d)(2).

This partial reliance on an erroneous factual finding

further highlights the unreasonableness of the state

court’s decision.

Wiggins, 539 U.S. at 528. The Wiggins Court had other

grounds for finding counsel’s performance deficient

but clearly used this single factual error to support its

conclusion that the state court’s decision was unreasonable under the standards of § 2254. We will therefore

consider the factual error regarding Ramon’s affidavit

in combination with his other claims in determining

whether the state court unreasonably applied Strickland

to the facts here. See Wiggins, 539 U.S. at 520 (“We have

made clear that the ‘unreasonable application’ prong of

§ 2254(d)(1) permits a federal habeas court to ‘grant the

writ if the state court identifies the correct governing

legal principle from this Court’s decisions but unreasonably applies that principle to the facts’ of petitioner’s

case.”).

2.

Oddly, the state concedes in one part of its brief that

the gunshot residue claim was fairly presented to and

adjudicated by the state appellate court (Brief of

Respondent-Appellee, at 24, (7th Cir. Apr. 25, 2007)
26 Nos. 06-2768 & 06-3281

(hereafter “State’s Brief”)), but then later argues that Pole

procedurally defaulted the gunshot residue claim in the

state court (State’s Brief at 32-33). Fair presentment of an

issue requires a petitioner to put forward both the operative facts and the controlling legal principles. Sanders v.

Cotton, 398 F.3d 572, 580 (7th Cir. 2005). See also Baldwin v.

Reese, 541 U.S. 27, 32 (2004) (“ordinarily a state

prisoner does not ‘fairly present’ a claim to a state court

if that court must read beyond a petition or a brief (or a

similar document) that does not alert it to the presence

of a federal claim in order to find material, such as a

lower court opinion in the case, that does so.”). According

to the state, the state court held that Pole did not adequately raise the issue of trial counsel’s ineffectiveness

for failing to present the gunshot residue results. R. 1-1,

Appx. 1, at A-9. On direct appeal, the state court indeed

said that Pole had not adequately raised the issue of

ineffective assistance related to the gunshot residue

evidence, but the court then nonetheless addressed

that claim on the merits. The court found that counsel

was not ineffective because he placed before the jury

the fact that the residue test had been taken and that

the prosecution had not put the results into evidence.

The state court found it was a reasonable strategy to

imply to the jury that the results favored Pole. Because

counsel on appeal also did not submit the results of the

gunshot residue test to the state appellate court, that

court also found that Pole failed to show prejudice from

counsel’s failure to place the actual test results before

the jury.

Similarly, in post-conviction proceedings, the state

appellate court refused to treat the claim of ineffective
Nos. 06-2768 & 06-3281 27

assistance of trial counsel as waived because Pole had

also alleged ineffective assistance of appellate counsel.

The state post-conviction court thus addressed Pole’s

claim of ineffective assistance on the merits, expressly

finding that, under these circumstances, “strict application of waiver should be relaxed to give defendant a

fair opportunity to present his argument.” People v. Pole,

No. 1-99-0858, at 4 (Ill. App. 1 Dist. April 13, 2001). That

Pole may have failed to abide by a state procedural

rule does not necessarily preclude this court from

hearing his claim. See Harris v. Reed, 489 U.S. 255, 262 (1989)

(“a federal claimant’s procedural default precludes

federal habeas review, like direct review, only if the last

state court rendering a judgment in the case rests its

judgment on the procedural default.”). “[T]he state court

must actually have relied on the procedural bar as an

independent basis for its disposition of the case.” Caldwell

v. Mississippi, 472 U.S. 320, 327 (1985). See also Harris,

489 U.S. at 261-62. The Supreme Court also set a “plain

statement” rule to govern the analysis of whether the

state court rested its judgment on a procedural default:

“[A] procedural default does not bar consideration of a

federal claim on either direct or habeas review unless

the last state court rendering a judgment in the case

‘clearly and expressly’ states that its judgment rests on a

state procedural bar.” Harris, 489 U.S. at 263 (quoting

Caldwell, 472 U.S. at 327). See also Smith v. Battaglia, 415

F.3d 649, 653 (7th Cir. 2005) (same); Sanders v. Cotton, 398

F.3d 572, 580 (7th Cir. 2005) (where the state appellate

court’s discussion of waiver is intertwined with its

merits analysis, the state court’s decision does not rest
28 Nos. 06-2768 & 06-3281

on an independent and adequate state law ground). The

state can point to no such statement here, and indeed

the last state court to consider the gunshot residue

issue expressly declined to rest on a procedural bar and

instead decided the issue on the merits. We therefore

decline to find that the claim was procedurally

defaulted in the state court.

But the state is correct that Pole did not argue, in

either his habeas petition or his brief in the district court,

the issue of his lawyer’s failure to present the gunshot

residue test, and therefore forfeited it in federal proceedings. See Martin v. Evans, 384 F.3d 848, 853 (7th Cir. 2004)

(a defendant who fails to present a specific ground of

trial counsel’s ineffectiveness in the district court has

waived the issue). See also Stevens, 489 F.3d at 894 (the

failure to alert a state court to a complaint about one

aspect of counsel’s assistance will lead to a procedural

default), Peoples, 403 F.3d at 848 (“one who makes and

loses a contention that counsel was ineffective for four

reasons cannot start over by choosing four different (or

four additional) failings to emphasize”). A party may not

raise an issue for the first time on appeal. Domka v.

Portage County, Wisconsin, 523 F.3d 776, 783 (7th Cir.

2008) (where a party raises a specific argument for the

first time on appeal, it is waived even though the “general

issue” was before the district court). Pole claims that

his filings in the district court were replete with

references to his lawyer’s failure to raise the results of

the gunshot residue tests. Simply referring to the

gunshot residue test, of course, is not enough to preserve

the ineffectiveness issue for review in this court. Kunz v.
Nos. 06-2768 & 06-3281 29

DeFelice, 538 F.3d 667, 681 (7th Cir. 2008) (failure adequately to present an issue to the district court waives

the issue on appeal).

Pole details his references to the gunshot residue test

in the district court in his reply brief on appeal. We

recount them here to demonstrate why we find the issue

forfeited. First, Pole states that the issue was raised in

the state appellate court’s decision on direct appeal and

that the state court’s decision, in turn, was “discussed” in

his federal habeas petition. In the habeas petition, Pole

complained that the state appellate court, in ruling on his

direct appeal, faulted him for failing to file a post-trial

motion claiming ineffective assistance, failing to request

appointment of new counsel, and making only a general

statement regarding the evidence he believed should

have been presented at trial. Pole then noted, “However,

the evidence Petitioner referred to was a ballistics report

that conclusively shows that no gunshot residue was

found on the gloves he allegedly was wearing when the

fatal shot allegedly was fired.” R. 1-1, at ¶ 72. This passage

in the habeas petition merely recounted the state court’s

ruling on direct appeal. But simply rehashing another

court’s ruling on the subject, without supplying supporting facts and legal argument, is not enough to alert

the district court that he was raising this issue as a basis

for his claim of ineffective assistance. See Winsett v. Washington, 130 F.3d 269, 273-74 (7th Cir. 1997) (where the

only reference to the voluntariness of a confession in a

habeas petition is a recapitulation of the state trial court’s

ruling on the subject without facts or legal arguments

in support of a claim of involuntariness, the claim is
30 Nos. 06-2768 & 06-3281

waived). Second, in his habeas brief, Pole notes that he

filed affidavits in support of his post-conviction petition,

detailing what happened on the night of the shooting. He

recounts information from one of those affidavits: “Petitioner was arrested later that night and taken to a police

station, where the police checked his hands for gun-shot

residue. The test proved negative.” R. 31, at 7. But Pole

utterly failed in the habeas brief to develop any legal

argument that his lawyer’s failure to put those results into

evidence constituted ineffective assistance. These two

mentions of the gunshot residue test were the only references Pole made in the district court before the court

denied his petition.

After the district court ruled against him, Pole alluded

to the gunshot residue test a third time, in his pro se

motion for reconsideration. R. 41. There, for the first time

in federal proceedings, he argued that if his attorney had

presented the scientist who conducted the test and the

results of the test, he would have been able to prove he

was not the shooter. In the motion for reconsideration,

Pole posited that the gunshot residue test would also

have shown that his signed confession was untrue and

coerced. He also argued that Ramon’s affidavit would

have explained why the gunshot residue tests were

negative, namely because Pole was not touching the gun

when it accidentally discharged. Pole attached the gunshot residue report to his motion for reconsideration

before the district court. This third reference to the

gunshot residue tests came too late, however, to preserve

the issue for appeal. Arguments raised or developed for

the first time in a motion to reconsider are generally
Nos. 06-2768 & 06-3281 31

Based on our review of the record, Pole has never presented

4

any evidence that the absence of gunshot residue demonstrates

with any certainty that he was not holding the gun when the

fatal shot was fired. He has presented no evidence, expert or

otherwise, interpreting the results of the gunshot residue tests.

We therefore cannot say whether the test was conclusive on

the issue of whether he was holding the gun when it discharged,

or whether, for example, he could have washed off any residue

in the time between the crime and his arrest. On this record, we

simply do not know the value of this evidence. Indeed, on

direct appeal, the Illinois Court of Appeals commented, “The

absence of gunshot residue does not mean that the person

tested did not handle or fire the weapon.” People v. Pole, Case

No. 1-96-1030, at 11 (Ill. App. 1 Dist. Dec. 22, 1997).

deemed forfeited. Mungo v. Taylor, 355 F.3d 969, 978 (7th

Cir. 2004). In a fourth reference, Pole argued in his

reply brief on the motion to reconsider that the gunshot

residue evidence would have shown that it was

impossible for him to have fired the fatal shot. R. 56. 4

Again, arguments raised in a motion to reconsider are

generally deemed forfeited. Mungo, 355 F.3d at 978. In a

fifth reference, Pole repeated the argument from his pro se

reply brief in his pro se notice of appeal, again too late.

R. 42. And sixth (and finally), in his pro se briefing on

his request for a certificate of appealability, Pole stated,

“it is further highlighted that Petitioner did not fire a

gun that night because short [sic] after the shooting

his hands and alleged glove were tested for gunshot

residue. Both test [sic] yielded negative.” R. 74, at 5.

This reference also is too late to raise the issue, and in

any case, in this final instance, Pole mentions the
32 Nos. 06-2768 & 06-3281

gunshot residue test only in the context of bolstering the

importance of Ramon Hamilton’s affidavit and potential

testimony.

Only the first two references came before the district

court ruled on the petition for habeas relief. Neither of those

references contained anything resembling an argument

that counsel was ineffective for failing to present the

gunshot residue evidence at trial. In the habeas petition

itself, Pole listed only three bases for his claim of ineffective assistance: (1) the failure to call Pole as a witness

at the motion to suppress; (2) the failure to adequately

investigate the case which led to the failure to secure

the recantations and other affidavits corroborating

Pole’s account of the incident; and (3) the failure of appellate counsel to raise ineffective assistance by trial

counsel. Nowhere in his habeas petition or brief did he

develop a legal argument that his lawyer was ineffective

for failing to introduce the results of the gunshot residue

test. All other references came too late in motions to

reconsider and subsequent pleadings when Pole could

have raised the arguments earlier. Pole offers no justification for failing to develop the argument earlier in the

federal proceedings. The issue is thus forfeited. Winsett,

130 F.3d at 274 (appellate court may not consider a

habeas argument that was not presented to the district

court).

3.

The state agrees that two of Pole’s ineffective assistance

claims were fairly presented to and adjudicated on the
Nos. 06-2768 & 06-3281 33

merits by the state appellate court, and that those claims

were not procedurally defaulted. According to the

state, Pole properly preserved claims that counsel was

ineffective (1) for failing to call Pole as a witness at his

suppression hearing; and (2) for failing to investigate

Ramon Hamilton and Lontray. State’s Brief at 24, 50. The

state concedes that the district court erred in finding a

“complete procedural default.” We therefore will

address those claims on the merits below. The state

contends that Pole forfeited the other claims he now

raises on appeal because he failed to raise those claims

in the district court. In particular, the state maintains

that Pole did not argue in the district court that counsel

was ineffective when he failed to interview key prosecution witnesses (Andrea and Bonnie Hamilton and Karen

Wills) and failed to interview or call other identified

eyewitnesses (Thaddeus and Thomas, Jr.). Having reviewed Pole’s pleadings in the state courts and district

court, we find that Pole adequately raised both the legal

and factual bases for the claims related to the

prosecution witnesses. In both the state courts and the

district court, he attached the affidavits that formed the

basis of these claims. Pole did not, however, argue in

his habeas brief in the district court that counsel was

ineffective for failing to investigate Thaddeus and

Thomas Jr., the putative additional eyewitnesses to the

crime, and therefore that claim is forfeited because it is

presented for the first time on appeal. Winsett, 130 F.3d

at 274. In sum, we will address on the merits Pole’s

claims that trial counsel was ineffective in (1) failing to

call Pole as a witness at the suppression hearing;
34 Nos. 06-2768 & 06-3281

(2) failing to investigate Ramon Hamilton; and (3) failing

to interview the prosecution witnesses (Andrea and

Bonnie Hamilton and Karen Wills), who, in part, later

recanted their testimony.

B.

As we noted above, in order to make out a claim for

ineffective assistance, a petitioner must show both that

his lawyer’s performance fell below an objective standard

of reasonableness as measured by prevailing professional

norms, and also that the petitioner suffered prejudice as

a result of counsel’s errors. Strickland, 466 U.S. at 688;

Wiggins, 539 U.S. at 521. When we are reviewing a Strickland claim through the lens of the AEDPA, in order to

prevail, the petitioner must demonstrate that the state

court’s adjudication of the claim (1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States;

or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.

1.

We turn first to trial counsel’s failure to call Pole as a

witness at the suppression hearing. Counsel failed to

call any witnesses at the suppression hearing, instead

relying on his cross-examination of prosecution witnesses

to make his case. The state called two police officers
Nos. 06-2768 & 06-3281 35

and the state’s attorney, each of whom interviewed Pole

in the hours following his arrest. They testified that Pole

was advised of his rights and not mistreated in any manner, that he read and understood the confession written

out by the state’s attorney, and that he appeared capable

of understanding what was happening. Pole’s lawyer

argued to the state trial court that, at the time of the

interrogation, Pole was eighteen and had a limited education. This was the first time he had been interrogated,

and he lacked experience with the criminal justice system. Pole’s counsel also argued that he was held for

a lengthy time before he confessed, and that under

the totality of the circumstances, his statement was not

voluntary.

In his affidavits, Pole claims that, had he been called

to testify at the suppression hearing, he would have told

the court that the officers chained him to the wall of the

interrogation room. R. 13, at C51, C57 and C61. Two

officers gave him a snack and a drink and asked him if

he knew about the shooting at the gas station. When

Pole told the officers that the shooting was accidental,

one of the officers took back the snack and drink and

called him a liar. The other officer took him to another

room and handcuffed him to the wall again. Pole was

tired and had difficulty getting into a position where he

could sleep because he was handcuffed to the wall. On

two or three occasions, when he started to fall asleep,

officers came back into the room, woke him up, and

asked more questions. According to his affidavits, at

the time of his interrogation, Pole had been awake for

twenty-four to thirty hours, and had been selling
36 Nos. 06-2768 & 06-3281

narcotics, smoking marijuana, and drinking rum in the

hours before his arrest. Pole would have testified that

he was not in a “normal frame of mind,” and that he

told the officers he was tired and needed sleep. R. 13, at

C59. Eventually, according to Pole, the state’s attorney

told him that, in order to save himself, he should sign a

paper saying that Ramon was the shooter. Pole signed

the paper without reading it in the hopes of “getting it

over.” R. 13, at C55.

We begin with the presumption that counsel rendered

adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.

Thompson v. Battaglia, 458 F.3d 614, 620 (7th Cir. 2006). To

determine whether a confession is voluntary, the court

looks at the characteristics of the defendant and the

conduct of the interrogators to determine if the

defendant’s will was overcome by coercion. Gilbert v.

Merchant, 488 F.3d 780, 791 (7th Cir. 2007) (whether a

confession was voluntary depends on the totality of the

circumstances surrounding that confession, including

both the characteristics of the accused and the details of

the interrogation that resulted in the confession). A confession is voluntary if, considering the totality of the circumstances, it is the product of a rational intellect and

free will, and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that

have overcome the defendant’s free will. United States v.

Gillaum, 372 F.3d 848, 856 (7th Cir. 2004). See also Johnson v.

Pollard, 559 F.3d 746, 753 (7th Cir. 2009) (a confession

is involuntary when it was given in circumstances that

were sufficient to overbear the confessor’s free will).
Nos. 06-2768 & 06-3281 37

We note that Pole’s affidavit generally denies he made any

5

oral statements incriminating himself, and the alleged coercive

activity surrounds only his signed statement. The police officers

and assistant state’s attorney testified (and the trial court

found their testimony credible) that Pole’s first oral confession

came within a few hours of his arrival at the police station. Pole

does not allege that the police officers lied to him during

the earlier part of the evening, only that the assistant state’s

attorney misrepresented the contents of the signed statement

much later. The signed statement was written at approximately 6:45 a.m. on September 28, 1994, nearly twelve hours

after the murder.

Moreover, coercive police activity is a necessary predicate

to finding that a confession is not voluntary. Colorado v.

Connelly, 479 U.S. 157, 163-64 (1986); Gillaum, 372 F.3d at

856. Courts may consider, among other things, the

age, experience, education, background and intelligence

of the accused, the length of the questioning, and other

circumstances surrounding the interrogation when evaluating whether a confession was voluntarily given. Johnson,

559 F.3d at 755. See also Gillaum, 372 F.3d at 856-57 (same).

The basis of Pole’s claim of coercion is that his interrogators deprived him of sleep and lied to him at a time

when he was mentally impaired by his consumption of

marijuana and rum in the hours leading up to his arrest.5

He signed the papers, he contends, because he was told

they implicated Ramon as the shooter. He did not tell

the officers that he was under the influence of rum

and marijuana but only that he was tired and needed to
38 Nos. 06-2768 & 06-3281

In Pole’s signed confession, he claimed not to be under the 6

influence of drugs or alcohol at the time of making his statement.

sleep. He also does not claim that the officers 6

threatened him or physically abused him in any other

way. Pole’s lawyer did not call any witnesses, but

instead relied on cross-examination of the state’s witnesses to support the motion to suppress. The state trial

court found that the state’s witnesses were credible, that

Pole had been read his rights and that there was no

evidence supporting his allegations of coercion. As we

noted above, the state appellate court, in post-conviction

proceedings, found that counsel’s performance at the

suppression hearing was not deficient. Specifically, the

state appellate court found that counsel’s strategy of crossexamining the state’s witnesses and arguing Pole’s youth

and inexperience to the trial court was adequate.

We recently had the occasion to consider whether

relying solely on a cross-examination of the state’s witnesses to prove coercion fell within the range of

competent legal representation. See Bynum v. Lemmon, 560

F.3d 678 (7th Cir. 2009). Bynum told his lawyer that,

during his interrogation, the police threatened him

with violence when he asked for a lawyer, handcuffed

him to a chair for nine hours, deprived him of food and

water and refused to let him go to the bathroom, among

other things. Bynum’s lawyer moved to suppress his

confession but did not ask Bynum to testify at the hearing. Instead, counsel questioned the officers who
Nos. 06-2768 & 06-3281 39

took Bynum’s statement. The officers contradicted every

part of Bynum’s claim of coercion, and the trial court

found the officers credible. Counsel later explained that

he did not call Bynum to the stand because he did not

think Bynum would hold up under cross-examination.

We noted that Bynum’s account of the interrogation

was the only available evidence of coercion. We found

that an expectation that the interrogating officers would

admit on the stand that they used coercion to force

Bynum’s confession was more “television fantasy” than

trial strategy. Any competent lawyer would have

expected the interrogators to deny that they coerced a

suspect. Without an admission to wrongdoing by the

interrogators, Bynum was left with no evidence that his

confession was coerced. Because a “motion to suppress

allegedly involuntary confessions cannot succeed

without at least some evidence that the confessions were

coerced,” and because counsel’s reason for keeping

Bynum off the stand was legally baseless, we concluded

that counsel’s actions fell well outside the range of competence demanded by attorneys in criminal cases. Bynum,

560 F.3d at 684. We held that the state court’s conclusion

to the contrary was an unreasonable application of the

Strickland standard. Bynum, 560 F.3d at 685.

Pole’s case presents a similar situation. Counsel had

only Pole’s testimony that, at the time of his interrogation, he was obviously under the influence of drugs

and alcohol, he had been awake for twenty-four to thirty

hours, and the officers chained him to the wall in a

manner that made it difficult to sleep and then woke

him up every time he tried to fall asleep, even though
40 Nos. 06-2768 & 06-3281

A defendant’s mental state is not enough alone to render his 7

confession involuntary for suppression purposes. See Connelly,

479 U.S. at 164-65. Although mental condition is relevant to a

defendant’s susceptibility to coercion, the police interrogator

must have committed wrongful acts in order for a confession

to be suppressed as the product of coercion.

he told the officers that he needed to sleep. More- 7

over, only Pole could testify that when he signed the

confession, he did so because the interrogators told him

the confession implicated Ramon as the shooter and not

himself. We do not know why Pole’s counsel declined to

call him to the stand because there has been no hearing

on Pole’s claim of ineffective assistance and Pole has

submitted no affidavit from his trial counsel. Perhaps

Pole’s lawyer wished to avoid the possibility that Pole

would be impeached at trial with any testimony he gave

at a suppression hearing. See People v. Sturgis, 317

N.E.2d 545, 548 (Ill. 1974) (“We therefore hold that the

testimony of a defendant or documents voluntarily

attested to by him in conjunction with his motion to

suppress evidence may not be introduced by the State

directly in its case in chief but may be used for purposes

of impeachment should the defendant choose to testify

at trial.”). Pole’s lawyer may also have been concerned

that the trial court would enhance Pole’s sentence for

obstruction of justice if Pole testified and the court disbelieved him. In Bynum’s case, we had the benefit of a

fully developed record, including testimony from

Bynum’s lawyer explaining why he attempted to prove

coercion using only the prosecution witnesses. We
Nos. 06-2768 & 06-3281 41

found that counsel’s performance was deficient because

an attempt to prove coercion on the basis of the interrogators’ testimony alone without a valid reason to do

so was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690; Bynum, 560

F.3d at 685. Without knowing counsel’s reasoning in this

case, we will assume that counsel’s performance was

deficient and move on to the second part of the analysis.

Pole must still demonstrate, of course, that any error

prejudiced him. Strickland, 466 U.S. at 693; Bynum, 560

F.3d at 685. To succeed on the prejudice prong of

Strickland, Pole must demonstrate that, had he testified,

there was both a reasonable probability that he would

have prevailed on the motion to suppress and a reasonable probability that he would have been acquitted.

Strickland, 466 U.S. at 694; Bynum, 560 F.3d at 684. See also

Thompson, 458 F.3d at 620 (a habeas petitioner claiming

that a lawyer’s failure to make a motion to suppress

was ineffective must prove that the motion would have

been meritorious). Unlike Bynum, where the primary

evidence against the defendant was the confession

itself, we cannot assume that Pole would have been

acquitted had the motion to suppress been granted; there

was considerably more evidence against Pole than the

signed confession. In addition to oral and written confessions to the police officers and state’s attorney, Pole had

confessed to Andrea Hamilton and Karen Wills, and was

implicated by Ramon Hamilton as the shooter. Persons

on the scene identified him as the individual who

asked about three men in the van and who later drove

by flashing gang signals. The police had also recovered
42 Nos. 06-2768 & 06-3281

the murder weapon along with a glove bearing Pole’s

name. In Pole’s own version of events on the night of

the murder (which we glean from the affidavits he has

filed with his habeas petition), Pole concedes he called

his fellow gang members to the scene, that the group had

gone back to the tire shop to confront a member of a

competing gang, and that he was present when the fatal

shot was fired during the struggle to set the safety on

the gun. Indeed, the only salient points on which Pole’s

story differs from the state’s version are (1) whether the

shot was fired accidentally by his compatriots at a time

when he was not touching the gun, or whether Pole fired

the shot deliberately; and (2) whether Pole and his fellow

gang members were there to beat a gang rival or to rob

him. The difference between Pole’s version and the

state’s version of the shooting would be the difference

between first degree murder and involuntary manslaughter if Pole had not also been convicted of attempted

armed robbery, another felony arising out of the same

event. That is, if Bernard Jackson’s death was the result

of the attempted armed robbery, for the purposes of the

Illinois felony murder statute, it would not matter

whether Pole aimed deliberately or whether the gun

accidentally discharged; in either case, Pole would be

guilty of first degree murder. See People v. Figueroa, 886

N.E.2d 455, 463 (Ill. App. 1 Dist. 2008) (under the felony

murder doctrine, a felon is responsible for the direct and

foreseeable consequences of his actions, regardless of

whether the defendant intended to kill the victim or

whether the death was accidental); People v. Pugh,

634 N.E.2d 34, 35-36 (Ill. App. 5 Dist. 1994) (felons are
Nos. 06-2768 & 06-3281 43

responsible for those deaths which occur during a

felony and which are foreseeable consequences of their

initial criminal acts; it is immaterial whether the killing

was intentional or accidental or was committed by a

confederate without the connivance of the defendant or

even by a third party trying to prevent the commission

of or resist the felony). Pole’s confession implicated him

in both the armed robbery and the murder, and so the

suppression motion could have affected both convictions. Because Pole also alleges that the other evidence

of his participation in the crime is suspect (in particular,

the evidence from Andrea Hamilton, Karen Wills and

Ramon Hamilton), we will defer the final analysis of

whether the confession would have been suppressed

or whether Pole would have been acquitted until we

consider his other claims of ineffective assistance.

2.

As we have already noted, both the state appellate

court and the district court misread Ramon Hamilton’s

affidavit. Each court assumed that Ramon was not

present at the shooting and that his testimony therefore

could not have influenced the outcome of the trial. In his

affidavit and even in the state’s version of the facts,

Ramon was present at the shooting, and was the

individual who brought the gun to the encounter. Indeed,

Ramon was charged with and pled guilty to murder and

attempted armed robbery, the same charges on which

Pole was convicted at trial. In the course of pleading

guilty, Ramon admitted to the prosecutor’s proffered
44 Nos. 06-2768 & 06-3281

As previously noted, this affidavit was signed in 1998, more 8

than four years after the murder. Pole submitted Ramon’s

affidavit to the Illinois appellate court with his pro se petition

for post-conviction relief in November 1998, and also submitted it in his federal habeas proceedings.

factual basis for his plea. According to that proffer, after

Ramon was arrested on the night of the murder, he received Miranda warnings and, with his mother present

(because Ramon was fifteen years old at the time), gave a

statement implicating himself and Pole. According to

that statement, Pole came to Ramon the evening of the

murder to ask for a gun so that Pole could go to the tire

shop and rob the Gangster Disciples of their jewelry.

Ramon provided Pole with a loaded handgun, and drove

in a separate car when the Blackstones passed in front of

the tire shop to verify that Gangster Disciples were present.

After parking their cars near the tire shop, Pole asked

Ramon to release the safety on the gun and Ramon

obliged. They approached the shop and Pole fired one

shot before the two fled the scene. After being told that

Pole gave the gun to Ramon’s sister, Ramon retrieved the

gun and hid it until the police arrived and demanded the

weapon. Ramon conceded all of this at his change of plea

hearing.

In his affidavit, Ramon told a different story of the

night of the murder. R. 13, at C63. According to the 8

affidavit, Ramon was at his home with Thomas Jr.,

Lontray, Rob and Thaddeus “smoking weed” when Pole
Nos. 06-2768 & 06-3281 45

No last names have been offered by Pole or by any of his 9

affiants for any of these individuals.

According to www.urbandictionary.com, a blunt is a cigar 10

that has been hollowed out and refilled with marijuana.

drove up. R. 13, at C63, ¶3. Pole told the group that a rival 9

gang member, Corey Lamb, was at the tire shop. Thaddeus

suggested that the group proceed to the tire shop to beat

Lamb for a past wrong. After Rob balked, Thaddeus

suggested that the group drive past the tire shop to

make sure that Pole was correct about the identity of the

man he saw there. They drove past the shop, confirmed

Pole’s claim, and then parked in the alley behind the

shop. As they walked toward the tire shop, Thaddeus

asked if everyone had his back, and Ramon offered that

he had a gun. Thaddeus then took the gun from Ramon

and said he was going to hit Lamb with the gun. Ramon

and Lontray told him to put the safety on or to take the

clip out to prevent an accidental shooting. While

Thaddeus was trying to put the safety on, Ramon and

Lontray reached for the gun and it discharged toward the

van at the tire shop. Everyone ran, and Ramon returned

home and “fired up [his] blunt.” Thaddeus and Pole 10

came to Ramon’s house and Ramon asked where the

gun was. When Pole told him it was in his car, Ramon

told him to retrieve the weapon.

Pole left to get the gun, and Ramon proceeded to a “game

room” with Lontray, where he played a few games and

smoked more marijuana. When Ramon returned home,

his sister Andrea gave him the gun and he hid it on the
46 Nos. 06-2768 & 06-3281

side of his house. When the police arrived and asked

for the gun, Ramon (by his own account) “played crazy”

and told the officers he did not know what they were

talking about. After the officers starting “pulling and

shaking” him, he turned over the gun. The officers then

took Ramon, his sister and his mother to the police

station for questioning. The police questioned Ramon

with his mother present, telling him that Pole had

named him as the shooter. When Ramon denied being

the shooter, the officers told him that the only way for

him to go home was to sign a statement implicating Pole

as the shooter. Ramon refused to sign the statement

until his mother directed him to do so. Contrary to the

officer’s promise, Ramon was not released, but was placed

in custody at a juvenile facility. Ramon’s lawyer later

recommended that he accept a plea deal and testify against

Pole. Ramon’s mother told him to take the deal, and

Ramon pled guilty. Ramon was never asked to testify

against Pole. R. 13, at C63-66.

According to Pole, Ramon’s testimony, as portrayed

in his affidavit, would have exonerated him. Pole claims

that his lawyer’s failure to investigate Ramon and call

him to the stand constituted ineffective assistance of

counsel. Ramon, Pole contends, was an eyewitness

whose testimony could have shown that Pole was not

the shooter. Similarly, Lontray was an eyewitness whose

testimony could have exonerated Pole of the charge of

first degree murder. Because the district court and the

state court misconstrued the affidavit, we will review

this claim without the usual deference. We first consider

whether counsel’s failure to investigate Ramon and
Nos. 06-2768 & 06-3281 47

Ramon’s affidavit does not mention Pole’s attorney. R. 13, 11

at C63-C66.

Lontray was “outside the wide range of professionally

competent assistance.” Strickland, 466 U.S. at 690. Ramon

had signed a confession on the same night that Pole

implicated himself, and Ramon’s confession substantially matched the statements given by his sister Andrea

and by her friend Karen Wills. Ramon also pled guilty

to the murder and conceded the state’s version of the

facts at his plea allocution. That version, of course,

named Pole as the shooter.

Pole’s argument on this point presumes first that his

trial counsel did not investigate Ramon Hamilton or

Lontray. The record, however, does not tell us whether

counsel in fact had investigated these two eyewitnesses

to the crime prior to the time of the trial. Pole did not 11

obtain an affidavit from his trial counsel, and neither

the state courts nor the district court held a hearing at

which the fact-finder could have discerned whether

there was a factual basis for Pole’s claim that counsel

failed to investigate these witnesses. Moreover, Pole has

submitted no affidavit from Lontray supporting his

claim that Lontray’s testimony would exonerate Pole.

On appeal, Pole does not ask us to remand for a hearing

but rather requests that we simply reverse the district

court’s order and remand with instructions to issue the

writ. Given that it was Pole’s burden to produce evidence

on this point, and given that Pole has neither produced

that evidence nor requested a hearing where he would
48 Nos. 06-2768 & 06-3281

In the affidavits filed with the habeas petition, both Ramon and 12

Pole concede that they went to the tire shop to “beat Corey’s

(continued...)

have an opportunity to provide that evidence, we

decline to assume the truth of assertions that lack

record support.

Pole’s argument also presumes that, had counsel investigated Ramon Hamilton, counsel would have been able to

convince Ramon to recant his confession, withdraw his

guilty plea (or at least recant his plea hearing allocution),

and reverse his intention to cooperate with the state

in Pole’s prosecution. As for Lontray, Pole’s argument

presumes that counsel would have been able to locate

the elusive Lontray (whose last name has yet to be provided), and would have been able to get Lontray to

confess that it was he who was holding the gun and

struggling with his cohorts when the weapon discharged.

In other words, counsel would have had to persuade

Lontray to confess to his part in the shooting death of

Bernard Jackson. In the case of both Ramon and Lontray,

nothing in the record supports the wild speculation that

counsel would have been able to convince Ramon to

admit to perjury and Lontray to testify to the version of

the facts now promoted by Pole and Ramon. Nor may

we ignore the bizarre nature of the story Pole now promotes through Ramon, that gang members who concede

they were on their way to confront and beat a rival

gang member, stopped to argue about how best to

protect the target of their wrath from an accidental shooting. Reasonably competent counsel had every reason 12
Nos. 06-2768 & 06-3281 49

(...continued) 12

ass,” in Ramon’s words, and to “whip Corey’s ass,” in Pole’s

words. They also both conceded that after Ramon produced

the gun, Thaddeus announced he was going to use the gun to

pistol whip Corey, their gang rival. R. 13, at C51, ¶¶ 8, 14; R. 13,

at C63, ¶¶ 5, 12. Only then did these unusually conscientious

gang members begin to argue about how best to pistol whip

Corey without actually shooting him.

not to call Ramon to the stand. Ramon’s guilty plea, his

confession and his allocution all provided strong evidence

against Pole. Ramon’s earlier versions of events pointed

to Pole as the instigator for the entire confrontation and

as the ultimate trigger man. In light of the gaps in the

record, Ramon’s confession and guilty plea, and the

utter lack of information regarding Lontray, we cannot

say that counsel’s possible failure to investigate or call

these witnesses fell outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690.

3.

Pole’s primary evidence that his lawyer failed to investigate Andrea and Bonnie Hamilton and Karen Wills

comes in his third affidavit. R. 13, at C61. There he states

that, after talking to Andrea and Karen before the trial, he

asked his lawyer to investigate the two. His lawyer

replied that a private investigator would cost about $250,

a price Pole agreed to pay. According to the affidavit,

Andrea told Pole before the trial that she and her mother

signed statements implicating him only because the
50 Nos. 06-2768 & 06-3281

police told them they could go home if they did so. Andrea

offered that if Pole sent his lawyer to meet them, Andrea

and her mother would sign affidavits explaining why

they signed the original statements. Andrea later refused

to talk further to Pole, telling him she was going to testify

for the state. According to Pole, his lawyer also told

him that if Andrea and Karen were willing to sign affidavits changing their original stories, they would likely

testify “to the exact same thing at trial on the stand.” R. 13,

at C61, ¶ 4. Pole believed that Andrea was trying to

protect her brother Ramon when she withdrew her support from Pole.

Pole has not provided any affidavit from Karen Wills,

stating only in his own affidavit that he spoke to Wills in

May 1995, and that Wills related to him that “she did not

want to sign the paper but she just wanted to go home

that night, especially since the police knew she had stolen

some hair care products. She further related that she

meant me no harm she just signed the paper that she

thinks the State’s Attorney had written up.” R. 13, at C61,

¶¶ 1-2. Yet Pole has presented no evidence that Karen

Wills ever recanted her statements from the night of the

murder or her testimony at trial, both of which

implicated Pole as the shooter. She states (through Pole)

that she did not want to sign the statement and meant

no harm to Pole but does not assert that she lied in her

initial statements and testimony. Notably, neither the

affiants (Pole, Bonnie and Andrea Hamilton) nor Karen

Wills state that Pole’s lawyer did not contact them or

investigate their stories. Nor do any of them claim that
Nos. 06-2768 & 06-3281 51

Andrea Hamilton comes closest to saying that her original 13

statement was untrue. In her affidavit, she alleges that the

prosecutor told her to testify that Pole brought a gun to her

house and that Pole told her he shot somebody. The prosecutor

told her that she had to choose between her brother and Pole

and “It’s only natural I would chose Ramon.” She also averred

that she now felt “responsible for my brother Ramon and Willie

[Pole] being locked up for something that they had nothing

to do with.” R. 13, at C72-C73. That Pole and Ramon had

“nothing to do with” the shooting is a characterization of

events belied by the affidavits of Pole and Ramon. Each now

concedes that they went to the tire shop with a gun to attack

a rival gang member, an action that led to the shooting death

of an innocent bystander. They also both stated in their affidavits that Ramon directed Pole to bring the gun to Ramon’s

house, and that Pole did so by giving the gun to Andrea

with directions to bring it home for Ramon. Her assertion that

the prosecutor manufactured her statement is curious in light

of her brother’s concessions. 

the statements they signed on the night of the murder

were untrue. Rather, they now assert that they signed 13

the statements because they wanted to go home, or

because they wanted to protect themselves or Ramon.

Each testified at trial consistently with their original

statements. Bonnie Hamilton’s affidavit does not add

much to the mix. She averred that the prosecutor told her

the only way for her and her children to go home was

for Ramon to sign a statement saying that Pole shot at

someone and for Andrea to sign a statement saying

that Pole gave her the gun. Again, Pole himself concedes

(as does Ramon Hamilton) that Pole gave the gun to
52 Nos. 06-2768 & 06-3281

Andrea after the shooting. Bonnie Hamilton does not

aver that the prosecutor was asking Ramon to falsely

claim that Pole shot at someone, only that the prosecutor

asked Ramon to sign a statement to that effect. Bonnie

Hamilton, like her daughter, now complains that Ramon

is “locked up for a murder he did not commit,” even

though Ramon pled guilty to murder charges and agreed

to the truth of the prosecutor’s proffer at his plea

allocution. R. 13, at C78-C80.

If in fact Pole’s lawyer failed to investigate Andrea and

Bonnie Hamilton and Karen Wills, we cannot say on this

record that failure caused Pole any prejudice at trial. See

Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 521. Andrea

and Bonnie Hamilton have both conceded that, at the

time of the arrests and trial, their primary concern was

to protect Ramon Hamilton. Pole’s counsel was able to

show Andrea’s bias on cross-examination at trial, getting

her to concede that she loved Ramon and would not do

anything to hurt him. Karen Wills has not recanted to

this day, and testified at trial consistently with her

original statement to the police on the night of the murder. Pole assumes that his lawyer could have convinced

Andrea to testify in a manner contrary to her original

statement and contrary to what she believed was in her

brother Ramon’s best interest. He also speculates that

Karen Wills would have changed her testimony had she

been approached by Pole’s lawyer. Even if Pole’s lawyer

had managed either of these highly speculative

and unlikely feats, Pole would also have to show a reasonable probability that he would have been acquitted

if the jury had been presented with this additional evi-
Nos. 06-2768 & 06-3281 53

dence. Strickland, 466 U.S. at 694; Bynum, 560 F.3d at 685;

Richardson, 401 F.3d at 803. In light of the substantial other

evidence against him, Pole has failed to make such a

showing.

4.

Before addressing the possible prejudice of counsel’s

performance as a whole, we must address the district

court’s handling of Pole’s pro se motion to reconsider. We

previously held that the district court erroneously

treated the timely motion to reconsider as an

unauthorized attempt to litigate a successive collateral

attack on his sentence. See Pole v. Firkus, Case Nos. 06-2768

& 06-3281, Order, at 2 (7th Cir. Jan. 18, 2007). We

concluded that the court should have treated the filing as

a timely motion for reconsideration and should have

decided it on the merits. Fed. R. Civ. P. 59(e). In his

motion to reconsider, Pole pointed out that both the

state appellate court and the district court misread

Ramon Hamilton’s affidavit. Pole’s observation was

correct, and the district court should have declined to

defer to the state court’s findings on Ramon’s affidavit.

We have not deferred to the state court’s findings regarding Ramon’s affidavit, and instead have resolved Pole’s

claims using the assumption that Ramon would have

testified that he was present at the shooting. Pole also

noted for the first time in the motion to reconsider that

the gunshot residue test results would have supported

his motion to suppress his confession and would have

corroborated Ramon’s new account of the crime. As we
54 Nos. 06-2768 & 06-3281

explained above, however, arguments made for the first

time in a motion to reconsider come too late for the

court’s consideration. Mungo, 355 F.3d at 978. Although

the district court should have decided Pole’s motion to

reconsider on the merits, we conclude that the error

does not affect the outcome of the appeal.

C.

Finally, we consider whether Pole was prejudiced by

any deficiencies in his counsel’s performance, an inquiry

we make by considering counsel’s performance as a

whole. Thompson, 458 F.3d at 616 (counsel’s performance

must be addressed as a whole; it is overall deficient

performance rather than a specific failing, that constitutes

the ground of relief); Peoples, 403 F.3d at 848 (same).

We assumed above that counsel’s decision to rely

entirely on the state’s witnesses to establish that Pole’s

confession had been coerced constituted deficient performance. In Bynum, the defendant’s confessions provided

the primary evidence against him. Bynum, 560 F.3d at 685.

Because the only other evidence supporting Bynum’s

conviction consisted of a voice identification by a thirteenyear-old boy who had heard the defendant speak on one

other occasion, we reasoned that Bynum would have been

acquitted had the two confessions been suppressed. In

Pole’s case, in addition to his signed confession, Pole

sought to exclude oral statements he made to two police

officers and an assistant state’s attorney on the night of

the murder. These statements were all consistent with

statements Pole made that same evening to Andrea
Nos. 06-2768 & 06-3281 55

Hamilton and Karen Wills, who also testified at trial. Pole

was also identified by other persons present at the tire

shop that evening as the person who had inquired about

the gang affiliation of the other men at the shop, and as

the person who later drove past the shop flashing gang

symbols. His car was identified by witnesses, and the

murder weapon was recovered from Ramon Hamilton’s

house, along with a glove marked with Pole’s name. Unlike

Bynum, there was considerable evidence of Pole’s guilt

beyond the allegedly coerced confessions to law enforcement officers and the prosecutor. We conclude that Pole

has failed to demonstrate a reasonable probability that

he would have been acquitted had the oral and written

confessions been suppressed.

Although we earlier assumed that the failure to put

Pole on the stand was outside the wide range of professionally competent assistance, we ultimately find that

Pole has failed to demonstrate a reasonable probability

that he would have prevailed at the suppression hearing

if he had testified on his own behalf. As with Bynum, the

court found the officers and assistant state’s attorney

testifying against Pole were credible. Bynum, 560 F.3d at

685. And as with Bynum, we defer to this conclusion

because it was reached after a hearing on the merits and

is supported by the record. Id. Had Pole testified at the

suppression hearing, he would have had only his own

uncorroborated testimony of coercion, with no physical

evidence and no other witnesses. In his signed

confession, Pole stated that he was treated well by the

police officers and the assistant state’s attorney, that he

was given water and soda to drink, that he was allowed
56 Nos. 06-2768 & 06-3281

bathroom breaks, that he was not promised anything

in exchange for his statement and that he was not threatened in any way. He also stated that he was not under

the influence of drugs or alcohol at the time he signed

the confession. Weighed against his signed statement

and the credible testimony of two police officers and an

assistant state’s attorney, Pole offers only his uncorroborated testimony that he was kept awake for approximately ten hours before he confessed. We conclude Pole

has failed to demonstrate a reasonable probability that

he would have prevailed at the suppression hearing if

he had testified on his own behalf.

Viewing counsel’s performance as a whole, we note

first that Pole’s lawyer was faced with a client who confessed to no fewer than five people within hours of the

murder, including two acquaintances, two police

officers and an assistant state’s attorney. By his own

admission, Pole instigated the entire incident and then

personally tried to hide the murder weapon after the

shooting. The gun was found with a glove marked with

Pole’s name. Although Pole claims not to have been

touching the gun, he was the person who was in

possession of the gun after the shooting. The basis for

Pole’s claim that the shooting was accidental is a highly

suspect story: a group of drug-addled gang members

who were on their way to beat a rival gang member

stopped to argue about how to engage the safety on the

gun so that they would not accidentally shoot their

rival. And while trying to protect their target, they

tussled over the gun and accidentally shot an innocent

bystander.
Nos. 06-2768 & 06-3281 57

Despite these facts, Pole’s lawyer successfully argued

for the court to instruct the jury on the lesser offense of

involuntary manslaughter, and also successfully argued

that there were sufficient mitigating factors to preclude

imposition of the death penalty. Given the evidence

against Pole, these were significant victories. There are

certainly things that Pole’s lawyer could have done differently and perhaps more effectively. That is not the standard, however, for habeas review under the AEDPA.

“Habeas relief must not be granted unless the state

court’s adjudication of the claim (1) resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States; or (2) resulted

in a decision that was based on an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” Julian, 495 F.3d at 492.

See also Jackson, 348 F.3d at 662; 28 U.S.C. § 2254(d). The

state court’s adjudication of Pole’s claim of ineffective

assistance of counsel does not meet this standard. To

demonstrate prejudice from counsel’s deficient performance, a “defendant must show that there is 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.” Strickland,

466 U.S. at 694. Any lawyer would have had difficulty

persuading a jury to buy the story that Pole wanted to

tell, given his multiple confessions and his farfetched

explanation for the “accident.” Pole has not shown a

reasonable probability that the result of the proceeding
58 Nos. 06-2768 & 06-3281

would have been different even if his lawyer had done

everything Pole now argues he should have done. We

therefore affirm the district court’s denial of his petition

for a writ of habeas corpus.

AFFIRMED.

7-7-09