Hampton, Patrick v. Leibach, Blair

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-4186

UNITED STATES OF AMERICA ex rel.

PATRICK HAMPTON,

Petitioner-Appellee,

v.

BLAIR LEIBACH,

Respondent-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 5473—Matthew F. Kennelly, Judge.

____________

ARGUED APRIL 10, 2002—DECIDED OCTOBER 14, 2003

____________

Before RIPPLE, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. In 1982, an Illinois jury convicted

eighteen-year-old Patrick Hampton of deviate sexual

assault, attempted rape, robbery, and aggravated battery,

and the trial judge ordered him to serve an extended pris-

on term of sixty years. Hampton filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254, alleging

(among other things) that his trial counsel was constitu-

tionally ineffective for failing to investigate and interview

exculpatory eyewitnesses to the crimes of which he was

convicted and for making promises in his opening statement

to the jury that he did not keep. Following an evidentiary

hearing, the district court granted the writ on these

2 No. 01-4186

grounds. Hampton v. Leibach, No. 99 C 5473, 2001

WL 1518533 (N.D. Ill. Nov. 29, 2001). The State has ap-

pealed. By order of the United States Supreme Court,

Hampton has been released from prison during the pen-

dency of this appeal. We affirm the district court’s judg-

ment.

I.

The offenses of which Hampton was convicted took

place at a rhythm and blues concert held at the Chicago

International Amphitheatre on the evening of December 29,

1981. Four bands performed at the concert: Chocolate Milk,

Slave, Michael Henderson, and Zapp. Shortly after mid-

night, while the last band was still playing, a group of up

to forty individuals marched up the aisle toward the stage,

chanting “Black Gangster Disciples” and “Third World

Disciple Nation,” pounding their fists together, and making

gang signals with their hands. Three Latino concert-

goers—Hugo N., Martha N., and Denise M.1—were seated

in the fifth row of the theater. As they arose from their

seats and attempted to leave, the group in the aisle at-

tacked them, removing their clothes, taking their wallets

and jewelry, beating them, and sexually assaulting the two

women. Security guards eventually intervened and rescued

the three victims of the assault. None of the perpetrators

was detained at the scene.

Fourteen year-old Keith Powell attended the concert

and witnessed the attack. He later identified a number

of former acquaintances from the Robert Taylor Homes

(a public housing project) as having been in the group of

people who had marched toward the stage of the theater.

1

We shall refer to the these three individuals by their first

names and last initials to respect their privacy.

No. 01-4186 3

Hampton was among the individuals that Powell identi-

fied, although Powell would later testify that he did not

actually see Hampton participate in the attack on the three

Latinos.

Hampton was arrested on December 31, 1981. He was

eighteen years old at that time and had never before been

arrested.

Ultimately, nine individuals, including Hampton, were

charged with the attacks. Six of them pleaded guilty

and were sentenced to the short periods of time they had

already spent in jail awaiting trial. Three defendants—

Hampton, Ronald Mallory, and Ricky Knight—pleaded not

guilty. They were tried jointly before three separate juries.

Attorney Jack Rodgon represented Hampton at the trial.

Hampton’s family had retained Rodgon, who previously

had represented Hampton’s brother. In advance of trial,

Rodgon sought to withdraw as Hampton’s counsel, asserting

that his fees were not being paid and that Hampton and his

family were not cooperating with him in preparation of the

case. The trial judge, Hon. Earl E. Strayhorn, proposed to

solve the problem by appointing Rodgon. Rodgon demurred,

indicating there were “some problems” with representing

Hampton. R. 48-1 at 129. The judge was unmoved and

refused to release Rodgon from the engagement; he subse-

quently granted Rodgon’s motion to continue as Hampton’s

counsel by appointment.

At trial, Powell testified that near the end of the concert,

a group of men approached the Amphitheatre stage, making

gang-related signs with their hands and chanting gang

slogans. The three defendants were members of that group.

Powell had known the defendants for two to three years; he

had once lived in the Robert Taylor Homes where the de-

fendants resided. Powell saw a disturbance break out near

the stage. At some point during the melee, a naked woman

ran up the aisle; he also saw Knight throw a pair of pants

4 No. 01-4186

in the air. Although the stage lights were lit during this

incident, the rest of the lights in the Amphitheatre were

darkened. Following the concert, Powell took the 43rd

Street bus back to the Robert Taylor Homes near 43rd and

State Streets, where he was staying with his aunt. He saw

each of the three defendants (among other individuals that

he knew) on that bus. He also overheard a conversation in

which someone—he could not say who—bragged about

having “stuffed his fingers” into the vagina of a woman, R.

48-2 at 563, and having taken jewelry. Powell reported

what he had seen and heard to the police on the afternoon

of December 31. Powell testified that although Hampton

was in the group that approached the stage, he had not

seen Hampton attack anyone, nor had he heard Hampton

say anything on the bus. Powell also testified that he had

picked Hampton out of a line-up, and he was positive on

this point. R. 48-2 at 624. However, the trial evidence would

subsequently reveal that he had never picked Hampton out

of a line-up. R. 48-3 at 1087.

Hugo N., one of the three victims of the assault, testified

that he had attended the concert with his girlfriend, Denise

M., his sister, Martha N., and Martha’s boyfriend, Scott S.

They sat in the fifth row on the main floor of the Amphi-

theatre. A number of disturbances preceded the assault

in which he, Denise, and Martha were injured: In the inter-

mission following the second act, Martha’s boyfriend was

struck in the head with a crowbar; during the third act,

Hugo saw security personnel chasing someone through the

theater; and during the intermission between the third and

final acts, he saw another fight break out among concert-

goers. During the last act, when Hugo, Denise, and Martha

saw the group of men moving down the aisle toward the

stage chanting “Third World Disciple Nation” and making

hand signals, they decided to leave. (Scott S. had already

left due to his injury.) As they attempted to do so, however,

the group blocked their exit and attacked them. Hugo lost

No. 01-4186 5

sight of Martha. As Hugo attempted to shield Denise from

the group, they were both kicked and punched. His shirt

was torn off, he felt people going through his pockets (his

wallet, keys, and jewelry all were taken) and then the rest

of his clothes were torn from his body. Denise was also

being stripped of her clothes. Knight twice struck him

and Denise with a chair, and on the second blow they both

fell to the floor. At this point, a number of attackers had

exposed their penises, and Hugo saw Knight put his in

Denise’s mouth, telling her “something like ‘here, take it.’ ”

R. 48-2 at 766. A security guard eventually came to his aid;

another helped Denise. They were taken to a first aid

station and subsequently by ambulance to a hospital. Hugo

later identified Knight from photographs and from a line-

up. He did not identify Hampton as one of his attackers.

Nor did he give the police a description of his assailants pri-

or to the first line-up that he viewed. Hugo agreed that at

the time of his assault, the last band was still playing, the

air in the Amphitheatre was smoke-filled, and the only light

was coming from the multi-colored stage lights.

Denise M. testified that when she, Hugo, and Martha at-

tempted to leave the theater, their path was blocked by a

group of fifteen to twenty men who were chanting and mak-

ing hand signals. She and Hugo were pushed and shoved,

and she felt hands grabbing her. Her clothing and jewelry

were ripped from her person, and she felt fingers being

pushed into her vagina. After someone twice struck them

with a chair, she fell dazed to the ground along with Hugo.

A number of the men had their penises out, and two of them

approached her. Knight attempted to put his in her mouth

(saying “here, take it,” R. 48-3 at 1017) as did Mallory.

Several men sat on her legs and one tried to pull them

apart. Denise saw one of the attackers, whom she identified

as Hampton, move his hands and she felt him try to force a

cold, hard object into her vagina. Eventually, a security

guard arrived and managed to break up the assault. Denise

6 No. 01-4186

suffered a number of injuries from the attack, including a

tear in her vagina that required surgical repair, a bladder

infection, and scarring on her breast. From photographs

and from a line-up, she subsequently identified Hampton as

the individual who had attempted to force an object into her

vagina. On cross-examination, Denise testified that she

could not estimate how long she had seen this individual.

She indicated that there were many men who were attack-

ing her, and that she was concentrating on the faces of the

men who tried to put their penises in her mouth.2 Prior to

viewing photographs and a line-up, she did not give a

description of Hampton or her other assailants to the

police.3

Martha N. testified that the assault began as a group of

men began to march toward the stage, making signals at

another group that was standing in front of the stage. As

she looked over at the aisle, she saw Knight gathering men

around him as they proceeded down the aisle. When she,

Hugo, and Denise attempted to move into the aisle in order

to leave, she found herself surrounded by a group of up to

thirty or thirty-five men. Knight swung a chair at her and

she ducked to avoid the blow. She then felt others pulling

her by the hair toward the stage. She was punched and

kicked, and her jewelry was taken. A man that she identi-

fied as Hampton tore her pants and attempted (unsuccess-

2

Other testimony indicated that on January 3, 1982, Denise

had identified Ronald Mallory, not Knight, as the person who put

his penis into her mouth; subsequently, on January 8, she iden-

tified Knight as the one who did this. R. 48-3 at 952-53, 957. At

trial, Denise testified that both men had attempted to do this, but

that neither one had succeeded. R. 48-3 at 1018, 1019.

3

Chicago police Detective Thomas Ptak testified that Denise M.

did supply the police with a description of her assailants. How-

ever, no such description was included in the police report that he

prepared. R. 48-3 at 960.

No. 01-4186 7

fully) to put his hand into her vagina. When she tried to get

away, she heard Knight say, “Get her. Get her.” R. 48-2

at 856. She managed to run to a security guard and asked

for his help, but he did nothing. She then located a second

guard who did help her. Martha testified that she subse-

quently picked Hampton out of line-up that took place on

December 31. She acknowledged that she had only seen his

face for four to five seconds on the night of the assault and

that during that time she was kicking and flailing at the

people who were attacking her. Prior to viewing the De-

cember 31st line-up, she did not describe Hampton or her

other assailants to the police beyond saying that they were

young black males. R. 48-3 at 949-50.

Detective Thomas Ptak later acknowledged on cross-ex-

amination that according to a written investigative report

that he had helped to prepare, Martha N. had identified

Ezra Garner, not Hampton, as the man who had tried to

put his hand into her vagina. R. 48-3 at 984. Ptak testified

that the report was erroneous, and that Martha had ac-

tually identified Hampton.

William Heinrichs, a field supervisor for the Cook County

Sheriff’s office, was moonlighting as a security guard at

the concert. Just after midnight, a young Latina in a torn

blouse and pants (Martha N.) approached him and told him

that a fight was taking place and that her brother and his

girlfriend were being attacked. He left her in the custody of

another guard, then rounded up additional other guards to

assist him. As he and other guards approached the scene of

the attack, he saw a large group of black men gathered in

a circle. In the center of that circle, a man and a woman

were on the ground being beaten. As Heinrichs pushed his

way through to the center of the circle, he saw a young

black man that he later identified as Hampton bending over

the woman, thrusting his arm toward her vaginal area. One

of the other guards yanked him off the woman, and the

guards helped the two victims—both of them naked and

8 No. 01-4186

bruised—to safety. Heinrichs testified that he grabbed the

assailant he identified as Hampton by the shoulder, but

was unable to keep him and the others from fleeing. On the

witness stand, Heinrichs indicated that he saw Hampton

for no more than three to four seconds during the assault;

he also testified that he had searched Hampton earlier in

the evening, when Hampton was admitted to the theater.

Following the incident, Heinrichs made no effort to contact

the police for more than a week; ultimately, someone from

the police department contacted him on January 6. Later

that day, Heinrichs identified Hampton and three other

individuals as participants in the attacks from a photograph

of a line-up. On the previous day, Heinrichs had seen a

television news report about the attack. That report fea-

tured a picture of Hampton (who by then was in police cus-

tody), and in Heinrichs’ estimation, the photograph of

Hampton had been displayed on the air for as long as one

minute.

Ricky Knight called no witnesses in his defense. He of-

fered only a single stipulation to the effect that a detective

would testify that the police investigation revealed it was

Ronald Mallory, and not Knight, who had put his penis in

Denise’s mouth.

Ronald Mallory presented four witnesses besides himself.

A woman who had grown up in the same neighborhood

as he testified that to her knowledge he was not a gang

member. A second witness, who knew Mallory from the pro-

jects and considered him a friend, testified that she had

attended the concert, that she had seen the attacks, that

she was standing right next to Mallory while the attacks

took place, that Mallory had not participated in the attacks,

and that he was not, to her knowledge, a gang member.

Gregory Hubbard testified that he had known Mallory

for five to six years from the neighborhood, that he too was

present at the concert, that he saw Mallory during the

attacks, that Mallory had not taken part in the attacks, and

that Mallory was not a gang member. Gregory Mallory

No. 01-4186 9

(“Gregory” or “Gregory Mallory”), Ronald’s brother, testified

that he too had attended the concert, that he had seen the

attacks, that he saw where his brother was during the

attacks, and that Mallory was not one of the attackers.

Gregory acknowledged that he had a previous conviction for

an unspecified crime. Finally, Mallory himself testified,

acknowledging that he was present at the concert but

denying any involvement in the attacks. Mallory said that

he approached the police on his own and gave them a

statement after hearing that they were looking for him. He

conceded, however, that he had lied to the authorities when

he told them he had not seen anyone he knew (other than

his brother) at the concert.

Two of Mallory’s witnesses had favorable things to say

about Hampton. The government asked Hubbard on cross-

examination whether he had seen anyone he recognized

participating in the attacks. Hubbard said that he had not,

and on further questioning, testified that he had not seen

either Knight, Hampton, or Mallory take part in the at-

tacks. R. 48-3 at 1145. Gregory Mallory, also on cross-ex-

amination, denied that either Mallory or Hampton was a

member of the Disciples gang. R. 48-3 at 1107.

However, because each defendant’s case was heard by a

separate jury, Hampton’s jury did not hear this testimony.

When the State was putting on its own witnesses, all three

juries were present in the courtroom at the same time. But

as counsel for each defendant took turns cross-examining

the State’s witnesses, and later as each defendant put on

his own evidence, the juries were rotated in and out of the

courtroom such that each jury only heard one defendant’s

case. Hampton’s jury thus was not present in the courtroom

when Mallory’s witnesses testified.

Hampton’s defense case was limited to one witness. De-

tective Craig Cegielski testified that Powell, to his knowl-

edge, had never picked Hampton out of a line-up. R. 48-3 at

1087.

10 No. 01-4186

In his opening statement, Hampton’s attorney, Rodgon,

made two promises: first, that Hampton would testify that

he was present at the concert and had seen what happened

but had not participated in the attack (R. 48-2 at 543), and

second, that the evidence would show that Hampton was

neither a member of, nor involved with, any gang (id. at

544). Neither promise was kept. Hampton did not testify,

and his jury heard no evidence that he had lacked involve-

ment with a gang.

The theme that Rodgon sounded in closing argument was

one that he focused on exclusively throughout the trial—the

weakness of the government’s case against Hampton.

Rodgon challenged both Powell’s credibility and Heinrichs’:

Rodgon noted that Powell claimed to have identified

Hampton in a line-up but that the evidence revealed he

had not done so; and Heinrichs, despite his position as

a law enforcement officer, had not come forward as a wit-

ness until the police contacted him more than a week after

the assaults, and he had identified Hampton only after

he had seen a news report featuring a photograph of

Hampton. Rodgon also questioned the ability of Martha N.

and Denise M. to identify Hampton as one of their attack-

ers, noting that they had only gotten brief glimpses of the

assailant under stressful conditions. Rodgon explained nei-

ther Hampton’s failure to testify nor the lack of evidence

that Hampton was uninvolved in a gang; he simply noted

that Hampton was not obliged to put on a case.

During jury deliberations, Hampton’s jury sent four notes

to the judge. One of these indicated that the jury had ar-

rived at a verdict as to five of the nine charges against

Hampton but was deadlocked as to the four other charges.

R. 62 at 189. Ultimately, the jury acquitted Hampton of the

attempted rape of Martha N. (R. 62 at 193) but convicted

him of deviate sexual assault, the attempted rape of Denise,

aggravated battery, and robbery (R. 62 at 194-201). Knight

was convicted on all charges. Mallory was acquitted of cer-

No. 01-4186 11

tain charges and granted a mistrial as to the remaining

charges, as to which his jury could not render a verdict. He

was acquitted of the remaining charges at a second trial.

Judge Strayhorn ordered Hampton to serve a prison term

of sixty years. R. 62 at 214; R. 48-6 at 58. The most ser-

ious of his offenses, deviate sexual assault, was normally

punishable by a maximum of thirty years. However, that

maximum was doubled to sixty years upon a finding that

the assault was accompanied by exceptionally brutal or

heinous behavior indicative of wanton cruelty. Judge

Strayhorn determined that Hampton’s use of a foreign ob-

ject to assault Denise M. met this condition. He remarked:

It is probably the most ag[g]rievously cruel, wanton,

depraved, brutal, [heinous], animalistic activity that

I have run into in some thirty five years in the practice

of law as a prosecutor, as a defense counsel and as a

Judge. I’ve never run into a situation involving the

[heinous] type facts that evolved in this case and that

were shown to exist in this case and Mr. Hampton was

actively involved to take a foreign object and to attempt

to force it into the vagina of a woman being held pros-

trate on the ground, people on each arm and on each

leg. That’s animalistic. That’s depraved. That’s cruel.

That’s doing great harm and I can’t allow it to pass and

I will not allow it to pass unnoticed.

R. 48-8 at 37. He was not imposing the sentence for the

purpose of rehabilitation, Judge Strayhorn explained. “It is

purely and simply for punishment for . . . the most cruel,

wanton, brutal, [heinous,] depraved, animalistic act that

I have ever seen committed on a human being.” R. 48-8

at 38. The judge ordered Hampton to serve concurrent, les-

ser terms on the other charges. R. 62 at 214; R. 48-6 at 58.

On direct review, the Illinois appellate court affirmed

Hampton’s conviction and sentence. People v. Knight, 486

N.E.2d 1356 (Ill. App. Ct. 1985). The Illinois Supreme

12 No. 01-4186

Court, as well as the United States Supreme Court, both de-

clined to hear the case. Knight v. Illinois, 480 U.S. 905, 107

S. Ct. 1346 (1987).

In 1990, Hampton filed a petition for postconviction relief

in state court. Through counsel, he filed a supplemental

petition after the Cook County public defender’s office was

appointed to represent him. R. 48-5 at 108 et seq. In his

supplemental petition, Hampton asserted that Rodgon had

been ineffective for failing to investigate and interview ex-

culpatory occurrence and character witnesses (R. 48-5 at

112-13, 117-19), for failing to have Hampton testify in his

own defense, and for failing to present evidence that

Hampton was not a gang member as Rodgon had promised

in his opening statement (R. 48-5 at 125-27). (Hampton’s

petition included other claims not relevant here.) Hampton

submitted an affidavit in support of the petition in which

he averred, inter alia, that he had given Rodgon the names,

addresses, and telephone numbers of Gregory Mallory,

Clinton Williams, and Ronnie Garner, and he had told

Rodgon that they would confirm that he had not partici-

pated in the attacks. R. 48-5 at 168 ¶ 12. Williams and

Garner signed affidavits indicating that Hampton was not

a gang member, that they had attended the concert with

him, and that Hampton was not involved in the attacks

R. 48-5 at 180-81 ¶ 5 (Williams); id. at 182-83 ¶ 5 (Garner).

They also stated that Rodgon had never contacted them. R.

48-5 at 180 ¶ 4 (Williams); id. at 182 ¶ 4 (Garner).

Hampton’s affidavit also indicated that he would have given

Rodgon the names of potential character witnesses if

Rodgon had asked him (R. 48-5 at 169 ¶ 15); and several of

his friends and family members submitted affidavits aver-

ring, among other things, that Hampton was not a gang

member (R. 48-5 at 184 ¶ 5g; id. at 187 ¶ 6b; id. at 189

¶ 5h, i; id. at 191 ¶ 5d; id. at 193 ¶ 5d). Hampton’s supple-

mental petition ultimately was assigned to Circuit Judge

Colleen McSweeney Moore.

No. 01-4186 13

On the State’s motion, Judge Moore summarily dismissed

the bulk of Hampton’s petition, including his ineffectiveness

claim. She determined that an evidentiary hearing was

warranted on Hampton’s claim that he had been denied the

right to testify on his own behalf. R. 48-7 at C38.4 But she

4

At the subsequent hearing on that issue, Rodgon explained that

he had advised Hampton not to take the witness stand because

Hampton would have testified that he knew everyone involved in

the case, including the other defendants, that he had gone to the

concert with some of the other defendants, that he had left with

them, and that he had taken the bus home with them. R. 48-7 at

D32. In Rodgon’s view, the specter of guilt by association was a

“terrible problem.” Id. at D33. Rodgon testified that he conveyed

this concern to Hampton, but left it to his client to decide whether

or not to testify. Id. at D31. Hampton, by contrast, testified that

Rodgon had never informed him that he had a right to testify and

did not explain that the decision whether or not to testify was his

rather than Rodgon’s to make. Id. at D7-8. Hampton said that he

had told Rodgon during the State’s case that he wanted to testify.

Id. at D9-11. But according to Hampton, Rodgon did not discuss

the matter with him again until after Rodgon announced to the

court that the defense was resting its case. Id. at D11. At that

point, Hampton asked Rodgon why he could not take the witness

stand, and Rodgon, according to Hampton, responded simply,

“Don’t worry, everything will be all right.” Id.

After hearing both Rodgon and Hampton testify, Judge Moore

credited Rodgon’s version of events over Hampton’s. See id. at

D58-59. She found that Rodgon and Hampton had discussed the

possibility of him testifying and what Hampton would say, that

Rodgon had informed Hampton of his right to testify and that the

decision was his as opposed to Rodgon’s, and that Hampton had

elected not to take the witness stand. Id. She also found, in view

of the “overwhelming” testimony from the “numerous eyewitnes-

ses” in the State’s case who identified Hampton as one of the per-

petrators, that Rodgon had understandably changed his mind

about Hampton testifying in his own defense. Id. at D57. “It is

. . . not unreasonable during the course of a trial or as a matter of

(continued...)

14 No. 01-4186

concluded that no such hearing was warranted as to his al-

legations of ineffectiveness. The judge thought the ineffec-

tiveness claim meritless in part because Hampton could not

show that the outcome of his trial might have been different

had Rodgon taken the steps that Hampton alleged he had

neglected to take. R. 48-7 at C34, C36. In the judge’s view,

Hampton’s postconviction counsel was attempting to sub-

stitute his own strategic judgment, informed by hindsight,

for that of Rodgon. Id. at C34-35. Judge Moore went on to

“find . . . as a matter of fact from the record . . . that Mr.

Ro[dg]on’s trial tactics, his strategy in the manner in which

he represented Patrick Hampton’s interest was not ineffec-

tive but rather was highly competent.” Id. at C35. She

noted that Rodgon had moved to quash Hampton’s arrest

and had obtained an evidentiary hearing on that motion, he

had moved to suppress the identification of Hampton and

also obtained a hearing on that request, he had pursued

additional motions regarding discovery and other issues in

the case, and during the trial he had effectively cross-exam-

ined the State’s witnesses. Id. at C32-34. The judge rejected

the notion that Mallory’s acquittal supplied reason to be-

lieve that Hampton too might have been acquitted had

Rodgon looked for the types of witnesses that Mallory’s

counsel had presented. “[T]he evidence with regard to Mr.

Mallory was so much weaker than the evidence with re-

gard to Patrick Hampton,” she reasoned. Id. at C35. In

Hampton’s case, a security guard as well as the victims of

the assault were able to identify Hampton; the case against

Mallory, by contrast, rested solely on the testimony of a

single victim (Denise M.). See id.

4

(...continued)

concurring trial strategy between a defendant and his attorney to

agree not to take the stand with the type of testimony that they

had discussed Mr. Hampton testifying to, in light of the over-

whelming evidence in the case.” Id.

No. 01-4186 15

A divided Illinois Appellate Court affirmed the dismis-

sal of Hampton’s ineffectiveness claims, concluding that

Hampton’s allegations did not satisfy either of the two

criteria set forth in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984)—objectively unreasonable perfor-

mance by counsel and prejudice resulting therefrom. People

v. Hampton, No. 1-95-4282, 726 N.E.2d 1187 (Ill. App. Ct.

June 8, 1998) (unpublished) (hereinafter, “App. Ct. Order”).

Hampton could not show prejudice, the court reasoned, giv-

en the “overwhelming” proof of his guilt—namely, the fact

that two of the victims of the attack, along with the security

guard, had identified him as one of the perpetrators. App.

Ct. Order at 5. Nor could Hampton establish that Rodgon’s

performance as his attorney was objectively unreasonable.

The decision whether to present a witness, the court stated,

is a matter of strategy and “cannot support a claim of in-

effective assistance of counsel.” Id. at 6. The court noted

that an attorney is only obliged to make a reasonable

investigation or to make a reasonable decision that renders

particular investigations unnecessary. Id. Here, Rodgon

knew that Hampton had attended the concert along with

several other defendants and that he had been positively

identified as one of the perpetrators by two victims and the

guard. Against that backdrop, the court believed, Rodgon

reasonably could have concluded that pursuing witnesses

who would simply have confirmed that Hampton was pres-

ent at the scene of the crime and linked to the other per-

petrators of the offense posed as much of a detriment as a

benefit to Hampton’s defense:

The testimony of these other witnesses would have been

redundant and only serve[d] to emphasize the fact that

defendant went to the concert with the perpetrators,

was present during the assault, and left with the

perpetrators. It was not unreasonable for defense coun-

sel to find this troubling. Indeed, it was defense coun-

sel’s assessment that defendant faced a probability of

“guilt by association.”

16 No. 01-4186

Id. 7. Thus, “[a]pplying a heavy measure of deference to de-

fense counsel’s judgment,” the court concluded that Rodgon

made a reasonable decision not to interview the witnesses

that Hampton had named. Id. As for Rodgon’s failure to

fulfill the promise that Hampton would testify in his own

defense,5 the court noted that Rodgon, at the time he made

this statement, believed that Hampton would take the

stand. Id. at 8. Subsequently, however, he discussed with

Hampton the problem of guilt by association, and he also

became concerned that Hampton might not be able to with-

stand the rigors of cross-examination. Id. In the end,

Rodgon had advised Hampton that the choice whether or

not to testify was his to make, and Hampton had decided

not to testify. Id. The court viewed this as a change in trial

strategy that could not support a claim of ineffectiveness.

Id.

Judge Sheila O’Brien dissented, reasoning that Hampton

should have had the same opportunity that the State had to

present occurrence witnesses:

This crime occurred in a large area, with hundreds of

people present. Defendant could have been present in

the area and not have participated in the events and

these occurrence witnesses could have corroborative in-

formation. These allegations make a substantial show-

ing of a violation of defendant’s constitutional rights.

Id. at 21. The Illinois Supreme Court subsequently denied

Hampton’s petition for leave to appeal. People v. Hampton,

No. 85803, 705 N.E.2d 443 (Ill. Oct. 6, 1998) (unpublished).

5

The court noted (App. Ct. Order at 8) but did not address

Rodgon’s prediction that the evidence would show Hampton’s lack

of involvement with any gang. Hampton had raised this promise

in his supplemental post-conviction petition (R. 48-5 at 125-27)

and in his appeal (R. 17 Ex. B at 17-18).

No. 01-4186 17

Having exhausted his state court remedies, Hampton filed

a pro se petition for a writ of habeas corpus in the district

court. The court appointed counsel to represent Hampton,

and his attorneys subsequently filed an amended petition

which, in relevant part, re-asserted Hampton’s claim of

ineffectiveness. R. 27. Over the State’s objection, the district

court conducted an evidentiary hearing to explore Rodgon’s

failure to investigate exculpatory witnesses.

Hampton testified at that hearing that during the nine-

month period that he was incarcerated in advance of trial,

Rodgon had met with him at the jail on only one occasion,

for about thirty to forty-five minutes. R. 59-1 at 10, 13.6

During this meeting, which took place shortly after

Hampton was arraigned in January 1982, Hampton told

Rodgon that he had attended the concert with Ronnie

Garner, Clinton Williams, and Gregory Mallory, and that

all three could verify that he was not involved in the at-

tacks and that he was not a gang member. Id. at 13-14. All

three lived in the same building as Hampton, and they

had grown up together. Id. at 14. Hampton gave Rodgon

their contact information. Id. He also pointed out Williams

and Gregory Mallory to Rodgon at subsequent court pro-

ceedings that they attended. Id. at 16. Hampton assumed

that Rodgon would contact them and call them to testify at

trial. Id. at 14, 16, 17. When Rodgon rested the defense case

without calling these witnesses, Hampton asked him why

he had not done so and Rodgon told him not to worry about

the matter. Id. at 18.

6

Hampton did have other two- or three-minute meetings with

Rodgon during this period—in court or in the holding cell adjacent

to the courtroom—but, according to Hampton, on those occasions

Rodgon simply explained to him what had occurred in court that

day or what he expected to happen at the next court date. R. 59-1

at 11.

18 No. 01-4186

Rodgon testified that he believed the State’s case against

Hampton was weak: there was no physical evidence impli-

cating Hampton in the attacks; it was purely an identifica-

tion case. R. 59-1 at 89. Hampton had not given him any

information about potential defense witnesses, and for that

reason Rodgon had not interviewed any such individuals.

Id. at 99-100. Rodgon knew that Hampton lived in the

Robert Taylor Homes and that “numerous people from

there” had attended the concert. Id. at 91. However, he did

not know who these individuals were. Had Hampton given

him the names of potential occurrence witnesses, Rodgon

testified, he would have followed through and spoken to

such witnesses. Id. at 116. Rodgon did not visit the Robert

Taylor Homes in an effort to identify potential witnesses,

nor did he have an investigator do so. Id. at 100-02. With

two immaterial exceptions, Rodgon’s case file contained

no notes reflecting interviews with potential witnesses, al-

though he agreed that such notes would have been in the

file. Id. at 95-99, 151-52.

In a 1987 letter to the Illinois Attorney Registration and

Disciplinary Commission (“ARDC”) responding to a com-

plaint Hampton had filed about his performance, Rodgon

had indicated that he did speak with Hampton about pos-

sible witnesses.

Prior to trial I did talk to [Hampton] concerning wit-

nesses that may or may not be called on his behalf. As

I recall he told me at that time that he was with people

who he had left the Amphitheatre with on a bus. Most

of these people were later arrested and charged with

the crime and plead[ed] guilty. I did not think it appro-

priate for me to put on witnesses who had plead[ed]

guilty to the crime to say that they were with Mr.

Hampton at the time but that he did not participate in

the crime.

R. 58 Petitioner’s Ex. 1D at 3. When asked about the letter

at the evidentiary hearing, Rodgon still maintained that

No. 01-4186 19

Hampton had not given him the names of potential occur-

rence witnesses. Had Hampton done so, Rodgon testified, he

would have sent someone to speak with them. R. 59-1 at

121. Rodgon indicated that he did not contact co-defendant

Ronnie Garner because when defendants plead guilty (as he

knew Garner had), they typically incriminate not only

themselves but their co-defendants. Id. at 123-24. He had

not spoken with any of the other defendants who pleaded

guilty for the same reason; Rodgon did not think it good

strategy to put people who had pleaded guilty on the

witness stand. Id. at 125. He acknowledged, however (at

first reluctantly), that one cannot assess the credibility of a

prospective witness without first talking to him or her. Id.

at 147.

Harold Winston, Hampton’s postconviction attorney, also

testified at the hearing before Judge Kennelly. Winston

recalled that after obtaining Rodgon’s trial file and review-

ing the contents, he asked Rodgon about the lack of any

notes from interviews with Hampton or other witnesses.

Rodgon told Winston that he had given him all that he had.

R. 59-1 at 32. Winston also indicated that in the course of

preparing Hampton’s supplemental postconviction petition,

he had spoken with Gregory Hubbard. Although Hubbard

had given him helpful information, he had ultimately

refused to sign an affidavit in support of Hampton’s peti-

tion. Id. at 54.

W. Michael Fay had represented Ronald Mallory at the

trial. He testified before Judge Kennelly that he went to

the Robert Taylor Homes along with two assistant public

defenders who were representing Ricky Knight to speak

with other people who had attended the concert and had

witnessed the attacks. R. 59-1 at 68-70. Fay did not recall,

however, whether the occurrence witnesses he called to tes-

tify in Mallory’s defense were among the people he spoke to

at the Robert Taylor Homes. Id. at 71. Fay was confident

that, pursuant to Circuit Court rules, he would have given

20 No. 01-4186

Rodgon a copy of Mallory’s witness list. Id. at 73. Gregory

Hubbard was among the witnesses included on that list.

Id. Fay also recalled that he spoke with Rodgon regularly

about the case as they encountered one another in the hall-

ways of the Criminal Courts building. Id. at 79.

Having heard both Hampton and Rodgon testify, Judge

Kennelly credited Hampton’s testimony in relevant part. He

found that Hampton had given Rodgon the names of

potential witnesses but that Rodgon had failed to follow up

with these witnesses. 2001 WL 1518533, at *7-*8. Judge

Kennelly thought that a decision by Rodgon not to pursue

these witnesses might have been strategically justified vis

à vis Garner, who had pleaded guilty to charges arising out

of the incident and who had not contested the government’s

version of events, which implicated Hampton. Id. at *8, *16

n.7. However, the failure to investigate would not have been

justified as to Mallory and Williams. Id. at *8, *16-*17. Not

having interviewed those two individuals, Rodgon had no

strategic basis for dismissing them as prospective wit-

nesses. Id. at *8.

Judge Kennelly further observed that Rodgon admitted

knowing that a group of people who lived at the same

housing project as Hampton had attended the concert,

and that some of those individuals might have witnessed

the attacks. Id. at *8. But Rodgon had made no effort to

locate such individuals. Id. Nor was there any indication

that Rodgon had spoken with the attorneys representing

Hampton’s co-defendants about their witnesses. Id. At least

one of those witnesses—Gregory Hubbard—could have ex-

culpated Hampton. Id. Finally, Rodgon had never asked

Hampton for the names of witnesses who could verify that

he was not in a gang, nor had he made any other efforts to

locate such witnesses. Id.

Ronnie Garner also testified at the evidentiary hearing

before Judge Kennelly. At the time of the concert, Garner

No. 01-4186 21

had known Hampton for ten years and was his friend.

According to Garner, Hampton was not a gang member.

Garner had attended the concert along with Ronnie Jack-

son, Sandelle Poole, Ezra Garner (Ronnie’s brother), and

Hampton; Hampton also left the concert with them. During

the concert, Hampton was seated near Ronnie Garner and

was within his sight at all times. Garner testified that

Hampton was not part of the crowd that attacked the three

Latinos. Garner said that no one had ever asked him what

he knew about Hampton’s involvement in the attacks, nor

had anyone asked him to testify on Hampton’s behalf. He

would have testified in Hampton’s defense had he been

asked. Garner himself had been charged with participating

in the attacks, however; and he ultimately had pleaded

guilty (against his lawyer’s advice) and was sentenced

to the six months he had already served in pretrial deten-

tion. On the witness stand before Judge Kennelly, Garner

insisted that he had not, in fact, participated in the attacks,

but had elected to plead guilty in order to avoid a poten-

tially much longer term had he been tried and convicted.

And although he had not contested the version of events

that the prosecutor recited at the change of plea hearing—a

version that had implicated Garner and Hampton both—

neither had he endorsed it as accurate. R. 57-3 at 21-27; see

R. 58, Petitioner’s Ex. 11 at 31-32 (State proffers factual

basis for plea and Judge Strayhorn finds it sufficient to

accept plea but Garner not asked to endorse it); compare id.

at 7 (co-defendant Ford asked to stipulate to State’s prof-

fer). Judge Kennelly found Garner’s testimony to be credi-

ble. 2001 WL 1518533, at *9.

Gregory Mallory, who had been a next-door neighbor and

friend of Hampton’s for about nine years at the time of the

concert, also testified. Gregory had attended the concert,

was seated about five to ten feet from Hampton, and said

that Hampton was not near the attacking crowd. As noted

above, Gregory’s brother Ronald Mallory was tried along

22 No. 01-4186

with Hampton, and Gregory had testified in Ronald’s (suc-

cessful) defense. Although Gregory said that he would have

testified on Hampton’s behalf, Hampton’s attorney had

never contacted him. Gregory had begun using heroin in

1989, and was still addicted to the narcotic when the evi-

dentiary hearing took place in 2001. He was convicted

of felony theft in 1981, and for heroin possession in 1994.

Although Gregory did not believe that his longtime abuse of

heroin had affected his memory, he answered a number of

the questions put to him with answers like “okay” and “I

guess so,” and he was unable to recall certain details about

the concert (e.g., precisely what row he sat in) and about the

trial (including the fact that it involved three juries). But

Gregory had not been a heroin user at the time of the

concert or at the time of Hampton’s trial. And although

Judge Kennelly characterized Mallory’s memory as imper-

fect, he found his testimony credible nonetheless.

Unsurprisingly, given the passage of time and the

effects of heroin use, [Gregory Mallory’s] memory of the

incident has faded a bit. But the issue is not whether he

would make a good witness if Hampton’s trial were held

today, but what effect his testimony might have had at

the 1982 trial. The Court finds that Mallory would have

made an effective defense witness at that trial.

2001 WL 1518533, at *9.

Clinton Williams died in July 1995, six years before the

evidentiary hearing took place. He too had been a friend of

Hampton’s and had attended the concert. Williams was

alive at the time that Hampton had petitioned for post-

conviction relief in state court and had signed an affidavit

in support of that petition indicating that Hampton had

not participated in the attacks. R. 48-5 at 180-81. Judge

Kennelly discerned no reason to believe that Williams

would not have been a credible witness on Hampton’s be-

No. 01-4186 23

half. 2001 WL 1518533, at *9. The judge pointed out that

there was no evidence linking Williams to the group that

had perpetrated the attacks. Id.

Before reaching the merits of Hampton’s failure-to-

investigate claim, the district judge determined that there

were no procedural obstacles that precluded either the evi-

dentiary hearing he had convened or consideration of the

merits of the claim. The court first concluded that Hampton

had fairly presented the claim in state court and thus had

exhausted his state court remedies with respect to that

claim. See 28 U.S.C. § 2254(b)(1), (c); O’Sullivan v. Boerckel,

526 U.S. 838, 844-45, 119 S. Ct. 1728, 1732 (1999); Picard

v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512

(1971). This was so, in the court’s view, notwithstanding

Hampton’s failure to submit an affidavit from Gregory

Mallory in support of his postconviction petition. 2001 WL

1518533, at *10. As the court observed, a claim advanced

in a federal habeas petition may be said to have been fairly

presented to the state courts so long as that claim is funda-

mentally the same claim that the petitioner asked the state

courts to resolve. Id. at *10, citing Boyko v. Parke, 259 F.3d

781, 789 (7th Cir. 2001). This was true of Hampton’s inef-

fectiveness claim, the judge reasoned. Although Hampton

had not tendered an affidavit from Gregory Mallory to

substantiate the ineffectiveness claim (as he had from

Williams and Garner), Hampton had, in his own affidavit,

averred that Gregory’s name was among those he had given

to his attorney as a witness, and Hampton had argued in

his petition that Rodgon should have contacted and inter-

viewed Gregory. Under these circumstances, Hampton’s

federal claim was not materially different from the one

Hampton had pursued in state court. 2001 WL 1518533, at

*10.

Nor did Hampton’s failure to submit an affidavit from

Gregory constitute a procedural default that barred federal

consideration of the ineffectiveness claim. Id. at *11; see

24 No. 01-4186

Harris v. Reed, 489 U.S. 255, 261-62, 109 S. Ct. 1038, 1042

(1989). Although the Illinois Appellate Court had noted the

absence of an affidavit from Gregory in its discussion of the

claim, it had nonetheless addressed the merits of the claim

in its entirety and without relying on the procedural flaw of

the missing affidavit. Because the state court chose to

ignore this default, Judge Kennelly reasoned, it posed no

obstacle to federal consideration of the ineffectiveness

claim. 2001 WL 1518533, at *11.

Next, the judge found that a federal statutory restriction

on evidentiary hearings in habeas proceedings did not fore-

close the court from hearing testimony in support of

Hampton’s ineffectiveness claim. Id. at *12-*14. Subject to

narrow exceptions, 28 U.S.C. § 2254(e)(2), added by the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), forbids a district court from holding an eviden-

tiary hearing on a habeas claim if the petitioner failed to

develop the factual basis of that claim in state court. As the

district court acknowledged, we have held that this limita-

tion applies not just to an evidentiary hearing, but to any

means used in lieu of such a hearing to expand the record

in order to introduce new factual information. 2001 WL

1518533, at *12, citing Boyko, 259 F.3d at 790. The State

argued that section 2254(e)(2) constrained the court’s abil-

ity not only to convene an evidentiary hearing, but also its

ability to consider the affidavit from Gregory Mallory that

Hampton had submitted in support of his habeas petition,

given that Hampton had not submitted an affidavit from

Gregory in support of his postconviction petition in state

court. But this provision forecloses an expansion of the

record only if the habeas petitioner’s failure to develop the

record appropriately in state court was due to the peti-

tioner’s lack of diligence or some larger fault attributable

to the petitioner or his counsel. See Williams v. Taylor, 529

U.S. 420, 432, 120 S. Ct. 1479, 1488 (2000); see also

Matheny v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001)

No. 01-4186 25

(quoting Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir.

1997), cert. denied, 522 U.S. 990, 118 S. Ct. 462 (1997)),

cert. denied, 535 U.S. 1030, 122 S. Ct. 1635 (2002).

In the district court’s view, there was no evidence that

Hampton had been anything but diligent in pursuing his

ineffectiveness claim in state court. 2001 WL 1518533, at

*12. Although the materials in support of Hampton’s

post-conviction petition did not include an affidavit from

Gregory, Hampton had identified Gregory in his own affi-

davit, averring that he had given Gregory’s name and con-

tact information to Rodgon as an eyewitness who might

testify on his behalf. The court also noted that Hampton

had asked the lower state court to conduct an evidentiary

hearing but that the State had opposed a hearing and the

state court had refused to conduct one. Had a hearing been

held, the court theorized, “it is overwhelmingly likely that

[Gregory] Mallory would have been called to testify.” Id. at

*12. Consequently, although the state court record lacked

an affidavit from Gregory that outlined what his testimony

on Hampton’s behalf might have been (had Rodgon pursued

him as a witness), that omission could not be ascribed to a

lack of diligence on Hampton’s part. “Having been rebuffed

at the prosecution’s request in his attempt to make a com-

plete record in state court, Hampton cannot be faulted for

his failure to do so or accused of a lack of diligence.” Id.7

7

The court reached a different conclusion with respect to the af-

fidavit of Farod Poole, which Hampton had submitted in support

of his supplemental habeas petition. According to that affidavit,

Poole was with Hampton at the concert, he had witnessed the

attacks, and he saw that Hampton was not a participant. R. 27

Ex. E ¶ 5. Poole was not mentioned in Hampton’s supplemental

postconviction petition, however, and no affidavit from him was

tendered to the state postconviction court. Although the district

court remained convinced that Hampton had fairly presented his

(continued...)

26 No. 01-4186

Having thus determined that the AEDPA posed no bar to

taking additional evidence on Hampton’s claim, the court

turned to pre-AEDPA standards. See Matheny, 253 F.3d

at 1039. Under those rules, an evidentiary hearing on a

habeas petitioner’s claim is required if the petitioner has

alleged facts that would entitle him to relief and the state

courts, for reasons beyond his control, did not consider

his claim in a full and fair hearing. See Townsend v. Sain,

372 U.S. 293, 312-13, 83 S. Ct. 745, 757 (1963), overruled

on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1,

112 S. Ct. 1715 (1992); Wright v. Gramley, 125 F.3d 1038,

1044 (7th Cir. 1997). A full and fair hearing is one that af-

forded the petitioner a complete opportunity to present

the facts relevant to his constitutional claim. See Matheny,

253 F.3d at 1039; Spreitzer v. Peters, 114 F.3d 1435, 1456 &

n.9 (7th Cir. 1997), disposition clarified, 127 F.3d 551 (7th

Cir. 1997), cert. denied, 522 U.S. 1120, 118 S. Ct. 1060

(1998). Judge Kennelly found that the Illinois post-convic-

tion court, when it dismissed the relevant portion of

Hampton’s postconviction petition without a hearing, had

deprived Hampton of this opportunity:

The state court did not permit Hampton to explore his

trial counsel’s reasons—if he had any—for failing to

interview and call the witnesses whose names Hampton

had given him. Nor did it permit him to address the is-

7

(...continued)

ineffectiveness claim to the state courts (because Poole’s affidavit

did not alter the nature of Hampton’s claim), see 2001 WL

1518533, at *11, it found that consideration of Poole’s affidavit

was barred under section 2254(e)(2), id. at *14. Hampton had not

established in state court what Poole’s testimony would have

been, nor had he offered any explanation for the omission. Id. “Un-

der the circumstances, the Court has no alternative but to find

that Hampton lacked due diligence in state court in this regard,

thus barring this Court’s consideration of Poole’s affidavit.” Id.

No. 01-4186 27

sue of prejudice, which would have required consider-

ation of the effect of [those witnesses’] testimony.

2001 WL 1518533, at *13.8 The judge pointed out that in

both Matheny and Bruce v. United States, 256 F.3d 592, 600

(7th Cir. 2001), we had concluded that an evidentiary hear-

ing was necessary in order to evaluate the ineffectiveness

claims asserted in those cases. Judge Kennelly believed

that this was true here as well. Testimony from Hampton’s

counsel as well as Hampton’s proposed witnesses would en-

able the court to assess the adequacy of Rodgon’s represen-

tation of Hampton and to determine whether Hampton was

prejudiced by Rodgon’s failure to interview (and summon to

testify) Hampton’s witnesses. 2001 WL 1518533, at *13.

The Illinois Appellate Court had said that Rodgon’s

failure to follow up with Hampton’s occurrence witnesses

was based on a strategic decision to avoid the specter of

guilt by association that such witnesses might have raised

or enhanced (App. Ct. Order at 7); but the district court

found to the contrary. Although section 2254(e)(1) provides

that state court findings of fact are owed a presumption of

8

Although the court’s analysis on this point was framed in terms

of Gregory alone, the focus properly is on the need to hear him

and the other witnesses Hampton has identified testify. Section

2254(e)(2) and procedural default rules deal with whether the un-

derlying factual basis for the claim was adequately developed in

state court and whether state procedural rules were followed. The

Townsend analysis, by contrast, addresses the need for the federal

habeas court to conduct an evidentiary hearing in order to fairly

resolve the petitioner’s claim. Here, for example, that analysis

considers whether it is necessary to hear Hampton’s witnesses

testify or whether his failure-to-investigate claim can be resolved

solely on the affidavits, as the state courts did. This analysis

therefore must take into consideration not only Gregory’s prof-

fered testimony, but the entire body of evidence relevant to

Hampton’s claim.

28 No. 01-4186

correctness, no such presumption was warranted here, in

the district court’s view. 2001 WL 1518533, at *15. The

state court’s finding was “entirely speculative,” with no

basis in the record before the state courts. Id. The only

evidence that Rodgon was concerned about guilt by associa-

tion came from a limited hearing that the state trial court

had conducted on Hampton’s separate claim regarding

Rodgon’s failure to have Hampton himself testify. Id.; see

n.4, supra; R.48-7 at D32-33. Rodgon’s rationale for not

calling Hampton to the witness stand could not be “trans-

mogrified” into an explanation for his failure to conduct an

adequate pretrial investigation, the district court reasoned.

2001 WL 1518533, at *15. Moreover, even if the appellate

court’s characterization of Rodgon’s conduct as “strategic”

were presumed correct, Hampton had succeeded in rebut-

ting that presumption by clear and convincing evidence.

Id.; see § 2254(e)(1). The court found that Rodgon had no

reason not to follow up on the eyewitness information that

Hampton had given him or not to make his own effort to

identify other occurrence witnesses. Rodgon had conceded

on the witness stand that an attorney cannot decide wheth-

er to call a witness who is not also a co-defendant without

first interviewing that witness, barring some other external

factor known to the attorney (such as a significant felony

record or the immateriality of the witness’s testimony) that

detracts from the value of that witness’s possible testimony.

2001 WL 1518533, at *15.

The district court also viewed the appellate court’s

strategy determination as either contrary to or an unrea-

sonable application of Strickland’s observation that strate-

gic choices based on something less than a complete investi-

gation are reasonable to the extent that reasonable profes-

sional judgment would support limits on that investigation.

Id. at *16; see Strickland v. Washington, supra, 466 U.S. at

690-91, 104 S. Ct. at 2066. Here, there was no evidence of

No. 01-4186 29

any judgment at all on Rodgon’s part, and it was not the

court’s duty to fill that void with its own judgment. 2001

WL 1518533, at *16.

Where the prosecution relies heavily on eyewitness tes-

timony that might be rebutted by other eyewitnesses, the

district court emphasized, the attorney’s duty to investi-

gate such witnesses is critical. Id. In this case, Rodgon had

cross-examined the State’s witnesses and exposed the

weaknesses in their identifications of Hampton, but he

made no effort to determine whether Hampton had more of

a defense than that. Id. Cases including Washington v.

Smith, 219 F.3d 620, 631-32 (7th Cir. 2000); Williams v.

Washington, 59 F.3d 673, 681 (7th Cir. 1995); Harris v.

Reed, 894 F.2d 871, 878-79 (7th Cir. 1990); and Sullivan v.

Fairman, 819 F.2d 1382, 1389 (7th Cir. 1987), support the

notion that the failure to investigate exculpatory witnes-

ses can amount to ineffective assistance of counsel. 2001

WL 1518533, at *17-*18. Rodgon’s ineffectiveness was not

limited to his failure to interview the eyewitnesses that

Hampton had identified for him, but included his failure to

make an effort of his own to locate other eyewitnesses. Id.

at *18. The court noted that if Rodgon simply had paid

attention to the witness lists of Hampton’s co-defendants,

he would have found at least one witness (Gregory Hub-

bard) who could have exonerated Hampton. Id.

The district court believed that Rodgon was also ineffec-

tive for failing to look for witnesses who could confirm that

Hampton was not a gang member. Id. at *18-*19. The

Illinois Appellate Court had written this omission off as a

failure to call witnesses who might have testified that

Hampton was a “decent person.” App. Ct. Order at 16. But

Hampton’s supplemental postconviction petition, along with

the affidavits he had submitted in support of that petition,

made clear that the gist of such witnesses’ testimony was

not simply that Hampton was of good character, but that

30 No. 01-4186

he was not a gang member. 2001 WL 1518533, at *19. Gang

affiliation was made relevant by the strong overtones of

gang activity that Powell had observed in the group of men

he saw marching toward the stage of the theater (the

chanting of gang slogans and hand signals). The unfulfilled

promise that Rodgon made in his opening statement—that

the jury would hear evidence that Hampton was not in-

volved in a gang—revealed that Rodgon was aware of the

importance of this issue. Id. at *18. Proof that Hampton had

no gang connections would have tended to undercut testi-

mony that he was part of the group that attacked the three

victims. Id. at *19. Yet Rodgon had never so much as asked

Hampton for the names of individuals who could attest to

his lack of gang involvement. Id.

The Illinois Appellate Court had also held that even if

Rodgon had rendered ineffective assistance, Hampton could

not demonstrate that he was prejudiced by his attorney’s

performance. App. Ct. Order at 5. “In light of the over-

whelming evidence of defendant’s guilt, i.e., two of the vic-

tims and a security guard identified defendant, defendant

cannot establish that but for his defense counsel’s perfor-

mance the outcome of his trial would have been different.”

Id. The district court concluded that this one-sentence

disposition of the prejudice prong of the ineffectiveness in-

quiry amounted to an unreasonable application of Strick-

land.

In the district court’s view, the State’s case against

Hampton was “far from unassailable.” 2001 WL 1518533, at

*19. Heinrichs, the security guard, conceded that on the

night of the attacks he had only seen the assailant he later

identified as Hampton for three or four seconds, and he had

not picked Hampton out of a line-up until after he had seen

Hampton’s picture in a television news report. Id. Denise

M. and Martha N. likewise had only gotten brief glimpses

of Hampton and had been unable to describe him except as

No. 01-4186 31

an African-American male for the police. Id. Hugo M. never

identified Hampton notwithstanding the fact that he was at

Denise M.’s side during the assault. Id. Each of the wit-

nesses who identified Hampton had witnessed the assault

“under extremely stressful . . . near-riot conditions.” Id. at

*19.

The fact that the jury acquitted Hampton of the attempt-

ed rape of Martha N. demonstrated the likelihood that the

testimony of exculpatory occurrence and other witnes-

ses might have produced a different outcome on the other

charges. Id. at *20. Martha N. had identified Hampton as

one of her attackers, and had done so under the same cir-

cumstances as the other two witnesses who identified

Hampton. But in Martha N.’s case, the record had supplied

a basis to challenge her identification—the written report

indicating that Martha N. had picked from the line-up

someone other than Hampton. Notwithstanding testimony

from a detective that the written report was erroneous, the

jury’s decision to acquit Hampton on this charge suggested

to the district court that the jury had doubts about the

strength of Martha N.’s identification. Id. This in turn in-

dicated to the court that if the jury had been given reason

to doubt the identifications by Denise M. and the guard be-

yond arguments about the circumstances under which they

had seen the assailant, it was reasonably likely that the

jury’s decision on the other charges might have been dif-

ferent as well. Id.

Rodney Mallory’s acquittal on all charges supplied addi-

tional, “powerful evidence” that an adequate investigation

into defense witnesses might well have produced a different

result for Hampton. Id. at *20. Mallory’s attorney had put

on the very type of eyewitness testimony that Rodgon had

failed to pursue, including Rodney’s brother Gregory, whom

Hampton had cited to Rodgon as an eyewitness. Id. Rodney

Mallory was acquitted notwithstanding the testimony of

32 No. 01-4186

Denise M. that he had attempted to place his penis in her

mouth and the testimony of Keith Powell that Rodney was

among the group of individuals who walked toward the

stage of the Amphitheatre. Id. True, no security guard had

identified Rodney. Id. Even so, the favorable outcome for

Rodney Mallory persuaded the district court that it was

reasonably probable that a defense founded in part upon

exculpatory occurrence witnesses would have resulted in

Hampton’s acquittal. Id.

The district court found further that Rodgon’s failure to

investigate and present witnesses to establish Hampton’s

lack of gang affiliation, although not dispositive by itself,

was also “highly prejudicial” to Hampton. Id. Gang affilia-

tion was an aspect of the prosecution’s case that tended to

buttress the witnesses’ identification of Hampton. Id. Sow-

ing doubt about the notion that Hampton would have parti-

cipated in gang-related activity thus would have given the

jury reason to question the identification of Hampton. Id.

Rodgon’s failure to keep the promise he made during

opening that Hampton would testify in his own defense re-

inforced the district court’s conclusion that Rodgon’s repre-

sentation of Hampton was ineffective. Id. at *21-*22. The

Illinois Appellate Court had chalked up Hampton’s failure

to testify to a change in trial strategy driven by Rodgon’s

concern over the prospect of guilt by association. App. Ct.

Order at 8. Had Hampton testified, he would have admitted

that he was present at the scene of the crime and that he

arrived and left with others implicated in the attacks. But

if that prospect was what worried Rodgon, the district court

noted, it was a possibility that was as apparent before trial

as it was when the time came to decide whether Hampton

would take the witness stand; there was no indication that

anything relevant to the guilt-by-association concern had

changed over the course of the trial. 2001 WL 1518533, at

*21. Consequently, the district court believed, it was “fool-

hardy and objectively unreasonable for [Rodgon] to promise

No. 01-4186 33

that Hampton would testify.” Id. The court acknowledged

that an attorney’s failure to keep a promise made in an

opening statement will rarely supply the basis for an in-

effectiveness claim. Id. In this case, however, nothing

occurred during the State’s case against Hampton that

altered the pros and cons of Hampton taking the stand.

Id. at *21-*22. True, had he testified, Hampton would

have had to explain his presence at the scene of the crime,

but, the court pointed out, Rodney Mallory had been able

to do so successfully. Id. at *22. Under the circumstances,

the court found it objectively unreasonable for Rodgon to

make and then abandon the promise that Hampton would

take the stand. Id. “The Appellate Court’s contrary conclu-

sion, based on a finding that was without any support

in the record, was an unreasonable application of Strick-

land.” Id. Rodgon’s failure to fulfill the promise, the district

court went on, was also prejudicial to Hampton. Id.

Hampton’s failure to take the stand as promised gave rise

to a negative inference about what the content of his tes-

timony might have been. Id. The court could not say that

this alone likely affected the outcome of the trial. However,

the decision not to keep the promise “significantly buttres-

se[d]” the court’s conclusion that Rodgon’s overall perfor-

mance likely did influence the outcome. Id.

Having concluded that Hampton was deprived of the

effective assistance of counsel, Judge Kennelly granted his

petition for a writ of habeas corpus. He ordered Hampton

released from prison unless, within thirty days, the State

announced its intent to retry Hampton. Id. at *25. The

State appealed, and subsequently it asked the district court

to stay its judgment. Hampton in turn asked the court to

order his release pending appeal. By this time, Hampton

had been incarcerated for twenty years, but even with cred-

it for good time, he could not expect to be discharged from

prison prior to January 2012. After weighing the equities,

Judge Kennelly stayed the judgment to the extent of reliev-

34 No. 01-4186

ing the State, pending appeal, of the obligation to announce

its intent to retry Hampton within thirty days. Hampton v.

Leibach, No. 99 C 5473, 2001 WL 1618737, at *3 (N.D. Ill.

Dec. 18, 2001). The judge also ordered Hampton released

from prison on bond pending appeal. Id. at *2-*3.

Hampton’s release was conditioned on his sister’s willing-

ness to execute a quitclaim deed on her home as security.

Id. at *3. He also required Hampton to “live with his sister

in her home, restrict his travel to the State of Illinois, make

reasonable efforts to seek employment, and avoid contact

with the victims of the offenses with which he was charged

in state court.” Id. Although this court subsequently stayed

Hampton’s release pending appeal, United States Supreme

Court Justice John Paul Stevens, acting as Circuit Justice,

granted Hampton’s application to vacate that stay, and the

full Court subsequently declined to overturn his order. On

January 28, 2002, this court ordered Hampton released at

such time as the district court’s conditions on his release

were satisfied.

II.

A. Evidentiary Hearing

The State’s initial contentions on appeal concern the

district court’s decision to conduct an evidentiary hearing

on Hampton’s ineffectiveness claim. The State does not

quarrel with the lower court’s determination that Hampton

fairly presented his failure-to-investigate claim to the state

courts. See § 2254(b)(1), (c); Boyko, 259 F.3d at 788-89. But

for three reasons, the State contends that the decision to

hold a hearing on that claim was, either in part or in whole,

erroneous: (1) Hampton did not submit an affidavit from

Gregory Mallory in support of his supplemental petition for

postconviction relief, and to that extent failed to develop the

factual basis for his claim in state court; (2) Hampton’s

failure to tender an affidavit from Gregory in state court,

No. 01-4186 35

which the Illinois Appellate Court noted, amounts to a

procedural default that bars federal consideration of the

ineffectiveness claim; and (3) there was, in any case, no

need for an evidentiary hearing because there were no

factual disputes that required a hearing to resolve.

1. Failure to Submit Affidavit from Gregory Mallory.

As the district court recognized, section 2254(e)(2) bars

a district court from conducting an evidentiary hearing

or otherwise permitting an expansion of the evidentiary

record in support of a habeas claim if the petitioner failed

to develop the factual basis for his claim in state court. In

the supplemental postconviction petition that Hampton

filed in state court, Hampton identified the occurrence wit-

nesses whose names he had allegedly given to Rodgon,

he submitted his own affidavit averring that he supplied

Rodgon with their names and contact information, and

he submitted affidavits from two of those witnesses—

Williams and Garner—which in turn confirmed that they

would have given exculpatory testimony on Hampton’s

behalf. But Hampton did not submit an affidavit from

Gregory Mallory. As we have noted, Hampton’s post-

conviction counsel, Harold Winston, testified at the eviden-

tiary hearing in the district court, and Winston explained

that he had interviewed Gregory, that Gregory had pro-

vided helpful information, but that Gregory had been un-

willing to sign an affidavit reflecting that information and

that Winston lacked the authority to compel him to do so.

R.59-1 at 54-55. The State contends that in failing to tender

an affidavit from Gregory Mallory, Hampton failed to devel-

op the basis for his ineffectiveness claim.

It is not entirely clear from the briefing whether the State

believes that this omission wholly forecloses all expansion

of the record in support of Hampton’s ineffectiveness claim,

or only the submission and consideration of Gregory’s af-

36 No. 01-4186

fidavit and testimony. We shall assume that the State

means only to argue that Hampton is foreclosed from tend-

ering Gregory’s affidavit and testimony, as it is otherwise

clear that Hampton tendered affidavits from Williams and

Garner in state court and thus developed his ineffectiveness

claim to that extent. This is consistent with the State’s pre-

sentation at oral argument. There its counsel argued, in es-

sence, that a failure-to-investigate claim akin to Hampton’s

is both defined and limited by the particular witnesses that

the petitioner charges his counsel with failing to contact. In

other words, a failure to investigate claim supported by the

affidavits of two exculpatory eyewitnesses (like Garner and

Williams) is a claim based on those two witnesses alone;

and if the petitioner at a later date presents affidavits from

additional eyewitnesses that counsel failed to contact, he

has inevitably transformed his ineffectiveness claim into a

new claim with a distinct factual basis. Thus, in the State’s

view, if the affidavits of those additional witnesses were not

presented to the state courts, then section 2254(e)(2) pre-

cludes the petitioner from relying on those witnesses in

federal court, because they represent a factual basis for the

ineffectiveness claim that was never developed in state

court.

Whether the State is correct to parse the failure-to-inves-

tigate claim and its factual basis in this way is a matter on

which we reserve judgment. The essence of Hampton’s

claim is that there were multiple eyewitnesses to the at-

tacks who could have exonerated him and that his counsel

failed to contact any of them. In support of that claim, he

presented the affidavits of two of those witnesses (Garner

and Williams) to the state postconviction court, in this way

documenting the nature of the exculpatory testimony that

was available had his counsel pursued this line of investiga-

tion. Mallory’s proffered testimony was not materially

different from that of Garner or Williams and so did not

alter the basic nature of Hampton’s ineffectiveness claim;

No. 01-4186 37

his was just one more iteration of the exculpatory testimony

that was available to the defense but not investigated

by Rodgon. In that sense, the failure to tender an affidavit

from Gregory to the state court arguably did not constitute

a failure to develop the factual basis for the ineffective-

ness claim for purposes of section 2254(e)(2)—that basis

was fleshed out with the affidavits of Garner and Williams.

We need not resolve the point, however. We may assume

that the omission of Gregory’s affidavit from Hampton’s

postconviction petition might preclude him from presenting

Gregory’s affidavit and testimony in federal court if the

omission was attributable to a lack of diligence on

Hampton’s part.

As the district court noted, a petitioner’s failure to devel-

op the factual basis of his habeas claim in state court will

bar expansion of the record in federal court only if this fail-

ure was due to a lack of diligence or some greater fault

attributable to the petitioner himself. Williams v. Taylor,

supra, 529 U.S. at 432, 120 S. Ct. at 1488; Burris v. Parke,

supra, 116 F.3d at 258-59; see also, e.g., Newell v. Hanks,

283 F.3d 827, 838 (7th Cir. 2002). The relevant inquiry is

thus not simply whether the petitioner theoretically could

have discovered the evidence while he was still in the state

forum, but whether he made appropriate efforts to locate

and present that evidence to the state courts. See Williams,

429 U.S. at 435, 120 S. Ct. at 1490. Winston’s testimony

in the district court reveals that he had spoken with

Gregory, that he had obtained information from Gregory

that would have supported Hampton’s claim, but that, in

the end, Gregory refused to sign the affidavit. R. 59-1 at 54.

Hampton argues that his failure to submit an affidavit from

Gregory was thus due to circumstances beyond his control

(Gregory’s refusal to cooperate) and not to his own lack of

diligence or some other fault that may deemed his responsi-

bility. Notably, the State does not quarrel with the notion

that a witness’s refusal to execute an affidavit may excuse

38 No. 01-4186

the petitioner’s failure to develop the record as to that

witness’s prospective testimony. See State Br. at 34-39; see

also Newell, 283 F.3d at 838. It makes two other arguments

instead. First, it suggests that this court erred in Burris

when it held that the failure to develop the factual basis

of a claim will preclude an evidentiary hearing under

section 2254(e)(2) only if the failure is attributable to the

petitioner. In the State’s view, the AEDPA bars expansion

of the record at the federal level even when the petitioner

and his counsel are not to blame for failing to develop the

factual basis for the claim in state court. State Br. at 35.

Second, the State argues that if Hampton attempted but

was unable to procure an affidavit from Gregory, his at-

torney should have executed an affidavit to that effect and

presented that affidavit to the state postconviction court.

State Reply Br. at 2.

The State’s first argument is untenable given the Su-

preme Court’s intervening opinion in Williams. The Court

in Williams did not construe section 2254(e)(2) to bar an

evidentiary hearing whenever the underlying facts were not

developed in state court. The Court instead held that evi-

dentiary expansion is foreclosed only when the failure to

develop the factual record sooner is due to “a lack of dili-

gence, or some greater fault, attributable to the prisoner or

the prisoner’s counsel.” 529 U.S. at 432, 120 S. Ct. at 1488.

The rule that we announced in Burris is consistent with

Williams; indeed, the Court cited Burris (among other

authorities) with approval. Ibid.

The State’s second argument misapprehends the nature

of the inquiry called for by section 2254(e)(2). The State

faults Hampton and his counsel for not making a record in

state court as to counsel’s inability to obtain an affidavit

from Gregory. But when the petitioner has not fully de-

veloped the factual basis for his claim in state court, it is

the federal court that must decide whether that omission

No. 01-4186 39

forecloses expansion of the record pursuant to section

2254(e)(2). To the extent that the state court record sheds

light on whether the petitioner could have developed the

facts underlying his claim while he was still in the state

forum, it is obviously relevant to this inquiry. Cf. Williams,

529 U.S. at 437-40, 120 S. Ct. at 1491-92 (references to

psyciatric record in state court proceedings demonstrated

that petitioner, if diligent, could have located report and

raised its non-disclosure in state habeas proceeding). But

when the reason is not self-evident from the state record,

nothing in section 2254(e)(2) precludes the petitioner from

supplying the explanation when he arrives in federal court.

See id. at 440-44, 120 S. Ct. at 1492-94 (relying on federal

court record to determine that petitioner’s failure to develop

factual basis for two of his claims was not due to lack of

diligence on petitioner’s part); Boyko, 259 F.3d at 791-92

(remanding for determination by district court as to peti-

tioner’s diligence). Hampton’s postconviction counsel, in his

testimony before the district court, detailed the unsuccess-

ful effort he had made to obtain an affidavit from Gregory.

In deciding whether expansion of the record was appropri-

ate, the district court was free to consider that and any oth-

er evidence that placed into context Hampton’s failure to

completely develop the basis for his ineffectiveness claim in

state court.9 As we have said, the State has not disputed the

9

Although section 2254(e)(2) does not require the petitioner to

have explained his failure to develop the factual basis for his

claim while still in the state forum, we acknowledge that the

Illinois Post-Conviction Hearing Act did require Hampton either

to attach to his postconviction petition “affidavits, records, or oth-

er evidence supporting its allegations” or to explain “why the same

are not attached.” Ill. Stat. Ann. Ch. 38 ¶ 122-2 (Smith-Hurd

1990). Thus, Hampton and his counsel should have explained to

the state postconviction court that their failure to submit an

affidavit from Gregory Mallory was due to Gregory’s refusal to

(continued...)

40 No. 01-4186

notion that a witness’s refusal to cooperate with the

petitioner may suffice under section 2254(e)(2) to excuse the

petitioner’s failure to tender that witness’s testimony in the

state forum. In the absence of such an argument, we shall

assume that Hampton did demonstrate diligence not with-

standing his failure to submit an affidavit from Gregory

Mallory in support of his postconviction petition.

2. Procedural Default

When it addressed Hampton’s ineffectiveness claim, the

Illinois Appellate Court pointed out that Hampton had

attached affidavits from both Williams and Garner to his

petition for postconviction relief, but not one from Gregory.

App. Ct. Op. at 6. The Illinois Post-Conviction Hearing Act

requires a petitioner to attach to his petition affidavits (or

other evidence) supporting the factual allegations of the pe-

tition. See Ill. Stat. Ann. Ch. 38 ¶ 122-2 (Smith-Hurd 1990),

now codified at 725 Ill. Comp. Stat. 5/122-2. Thus, a claim

that trial counsel failed to investigate and call to testify

a particular witness should be supported by an affidavit

from that witness. People v. Enis, 743 N.E.2d 1, 13 (Ill.

9

(...continued)

sign such an affidavit, just as the State suggests. Had the Illinois

courts relied on the lack of such an explanatory affidavit as a

reason to disregard Gregory’s potential testimony on Hampton’s

behalf, Hampton’s failure to explain to the state courts why he

had not submitted an affidavit from Gregory might have consti-

tuted a procedural default barring the federal courts from con-

sidering Gregory’s testimony. As we note below, however, al-

though the Illinois Appellate Court noted that Hampton had not

submitted an affidavit from Gregory, it did not rely on the missing

affidavit in disposing of Hampton’s ineffectiveness claim; neither

did it note or rely on the lack of an explanation for the missing

affidavit.

No. 01-4186 41

2000), cert. denied, 533 U.S. 908, 121 S. Ct. 2254 (2001).

Hampton’s failure to tender an affidavit from Gregory was

in apparent violation of that requirement. The State con-

tends that this procedural default, which the Appellate

Court noted, constitutes an adequate and independent state

procedural ground for the court’s decision that precludes the

federal courts from reaching the merits of his constitutional

claim insofar as it rests on Gregory’s testimony. See Stewart

v. Smith, 536 U.S. 856, 860, 122 S. Ct. 2578, 2581 (2002);

Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546,

2553-54 (1991).

However, because the state court did not rely on

Hampton’s purported default in disposing of his ineffective-

ness claim, we may reach the merits of the claim. A peti-

tioner’s procedural default will bar federal habeas review

only if the state court actually relied on that default as an

independent basis for its decision. Harris v. Reed, supra,

489 US. at 261-62, 109 S. Ct. at 1042. Here, the Illinois Ap-

pellate Court (the last state court to address the ineffective-

ness claim) did no more than note Hampton’s failure to sub-

mit an affidavit from Gregory Mallory. App. Ct. Order

at 6. The court gave no hint that the missing affidavit con-

strained or influenced its resolution of the claim in any way.

The court proceeded to plenary consideration of the merits

of the claim, referring collectively to the witnesses that

Hampton claimed his attorney had failed to investigate as

“these witnesses,” without drawing any distinction between

Williams and Garner, whose affidavits had been attached

to Hampton’s petition, and Gregory Mallory. App. Ct. Order

at 7. Under these circumstances, we find no adequate and

independent state procedural ground that forecloses or

limits our consideration of Hampton’s ineffectiveness claim.

See, e.g., Farmer v. Litscher, 303 F.3d 840, 846 (7th Cir.

2002); Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002).

The State makes a similar argument with respect to

Gregory Hubbard. Hubbard’s name was not among those

42 No. 01-4186

that Hampton had given to Rodgon. Rather, the district

court cited Hubbard as an example of an exculpatory

witness whom Rodgon would have discovered had he made

a rudimentary effort of his own to identify such witnesses.

2001 WL 1518533, at *8. Recall that Hubbard had testified

on Ronald Mallory’s behalf and, among other things,

claimed that Hampton did not participate in the attacks.

R. 48-3 at 1132-33, 1145. As was the case with Gregory

Mallory, Hampton did not attach an affidavit from Hubbard

to his postconviction petition, and the State thus contends

that Hampton procedurally defaulted his ineffectiveness

claim insofar as it relied on Hubbard as a prospective wit-

ness.10

Hubbard, however, occupies a unique place among the

witnesses that Rodgon might have summoned on Hampton’s

behalf, in that the trial record itself revealed the substance

of Hubbard’s testimony. When he testified for Ronald

Mallory, Hubbard had not only exculpated Mallory but also

Hampton (Tr. 1132, 1145); it was simply the case that

Hampton’s jury never heard this testimony. Given the

existing record of Hubbard’s testimony, there was no real

need for Hampton to submit an affidavit from Hubbard in

order to substantiate the claim that he would have been

a helpful witness. See People v. Johnson, 700 N.E.2d 996,

1003 (Ill. 1998) (lack of affidavit or other evidence not fatal

to postconviction claim if petitioner’s allegations are uncon-

tradicted and clearly supported by record), cert. denied, 526

10

It is not clear whether the State also means to invoke section

2254(e)(2) in pressing this argument. However, for the same

reasons we conclude below that the failure to submit an affidavit

from Hubbard in state court did not constitute a procedural de-

fault barring Hampton from relying on Hubbard’s testimony, we

would also conclude that Hampton did not fail to develop the

factual basis for his failure-to-investigate claim insofar as it rests

on Hubbard’s testimony.

No. 01-4186 43

U.S. 1009, 119 S. Ct. 1150 (1999). As it was, Hampton not

only named Hubbard in his supplemental postconviction

petition, but cited the testimony he had given on behalf of

Ronald Mallory. R. 48-5 at 119. That testimony was in the

record, the entirety of which the postconviction judge said

she had considered before dismissing his failure-to-investi-

gate claim. R. 48-7 at C3, C31. Hampton did not, therefore,

commit a procedural default in state court that precludes

him from relying upon Hubbard’s testimony.11

3. Need for an Evidentiary Hearing

Finally the State appears to argue in passing that the dis-

trict court erred in ordering an evidentiary hearing because

“there were no factual disputes which warranted a hearing.”

State Br. at 39. Because the State has not developed this

argument, we need not consider it. See, e.g., Palmquist v.

Selvik, 111 F.3d 1332, 1342 (7th Cir. 1997) (“Even an issue

expressly presented for resolution is waived if not de-

veloped.”). Instead, we believe it sufficient to make two brief

points.

First, a habeas petitioner is entitled to an evidentiary

hearing under Townsend v. Sain, supra, 372 U.S. at 312-

13, 83 S. Ct. at 757, if he has alleged facts that would enti-

11

The State makes the same procedural default argument with

respect to Farod Poole, an additional witness that Hampton did

not name to Rodgon but, Hampton alleges, was readily dis-

coverable had Rodgon simply made an effort to locate additional

eyewitnesses. An affidavit from Poole was submitted in support

of Hampton’s supplemental habeas petition. R.27 Ex. E. The

district court ultimately did not consider Poole’s affidavit, how-

ever, finding that Hampton’s failure to identify him as a potential

witness and to tender an affidavit from him in support of his

petition for postconviction relief in state court was due to a lack

of diligence on Hampton’s part. 2001 WL 1518533, at *14.

44 No. 01-4186

tle him to relief and the state courts, for reasons not attrib-

utable to him, denied him a full and fair hearing to explore

those facts. See Matheny, 253 F.3d at 1039; Porter v.

Gramley, 112 F.3d 1308, 1317 (7th Cir. 1997), cert. denied,

522 U.S. 1093, 118 S. Ct. 886 (1998).12 That is the case here.

Hampton’s habeas petition, together with the affidavits

before the district court at the time it decided to convene

a hearing, made out a prima facie case of ineffectiveness.

Hampton had preliminarily established that there were

eyewitnesses to the attacks who could have exculpated

him, that these witnesses had either been identified to

Hampton’s trial counsel Rodgon by Hampton himself or

were readily discoverable, but that Rodgon had not con-

tacted these witnesses in order to determine whether they

might have aided Hampton’s defense. The state postconvic-

tion court was presented with those same basic averments

but summarily disposed of Hampton’s petition without an

evidentiary hearing; and the Appellate Court affirmed that

disposition.

Second, there were points that the district court could

not reasonably resolve without conducting a hearing. For

example, although the Illinois Appellate Court had ascribed

Rodgon’s failure to investigate and present exculpatory

witnesses to a legitimate concern that such witnesses might

have presented a problem of guilt by association for

Hampton (App. Ct. Order at 7), there in fact was no record

as to Rodgon’s efforts and thinking as to such witnesses.

12

The State suggests that section 2254(e)(2) displaces the pre-

AEDPA Townsend analysis. However, our opinion in Matheny

indicates that if section 2254(e)(2) by its terms does not apply (i.e.,

if the failure to develop the factual basis for the habeas claim in

state court cannot be attributed to something that the petitioner

did or failed to do), then the federal habeas court should consult

pre-AEDPA standards to determine whether an evidentiary hear-

ing on the petitioner’s claim is warranted. 253 F.3d at 1039.

No. 01-4186 45

The only available evidence as to Rodgon’s thinking came

from the postconviction hearing regarding Hampton’s own

failure to testify. See supra at 13-14 & n.4. Because the

postconviction court had summarily dismissed Hampton’s

ineffectiveness claim, the state court record was never

developed as to what Rodgon knew about exculpatory oc-

currence witnesses, what steps he may have taken to iden-

tify and speak with such witnesses, or his reasons (if any)

for neither investigating nor presenting such witnesses.

Indeed, as the evidentiary hearing in the district court re-

vealed, there were disputes between Hampton and Rodgon

as to whether or not Hampton had identified potential wit-

nesses for Rodgon, disputes that could only be resolved after

the court heard their testimony and assessed their credibil-

ity. See Bruce v. United States, supra, 256 F.3d at 598-99

(district court abused its discretion in refusing to conduct

an evidentiary hearing on failure to investigate claim made

under 28 U.S.C. § 2255, where the affidavits of trial coun-

sel, defendant, and prospective alibi witnesses presented

questions of fact as to whether counsel adequately assessed

the potential testimony of these witnesses). Moreover, the

district court could not assess what impact the exculpatory

eyewitnesses likely would have had upon Hampton’s trial

without hearing their testimony. Id. at 600. We observed in

Matheny that “[a]n adequate record is imperative to

properly evaluate ineffective assistance claims,” 253 F.3d at

1040 (citing United States v. Draves, 103 F.3d 1328, 1335

(7th Cir.), cert. denied, 521 U.S. 1127, 117 S. Ct. 2528

(1997)), and in this case an evidentiary hearing was

necessary in order to supply such a record. See also United

States ex rel. Cosey v. Wolff, 682 F.2d 691, 693-94 (7th Cir.

1982) (per curiam).

B. Merits

“The Antiterrorism and Effective Death Penalty Act of

1996 modified a federal habeas court’s role in reviewing

46 No. 01-4186

state prisoner applications in order to prevent federal ha-

beas ‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Bell v. Cone,

535 U.S. 685, 693, 122 S. Ct. 1843, 1849 (2002), citing

Williams v. Taylor, 529 U.S. 362, 403-04, 120 S. Ct. 1495,

1518 (2000). In order to obtain habeas relief under the

AEDPA, a petitioner must establish that the proceedings in

state court resulted in a decision (1) “that was contrary to,

or involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court of

the United States,” or (2) “that was based on an unreason-

able determination of the facts in light of the evidence pre-

sented in the State court proceeding.” 28 U.S.C. § 2254(d).

The relevant decision, for purposes of this assessment, is

the decision of the last state court to rule on the merits of

the petitioner’s claim—here, the order of the Illinois Ap-

pellate Court. E.g., Schultz v. Page, 313 F.3d 1010, 1015

(7th Cir. 2002), cert. denied, 123 S. Ct. 2220 (2003).

Hampton appropriately does not contend that the Illinois

Appellate Court’s decision is “contrary to” clearly estab-

lished law; the court cited and applied the familiar rules

governing claims of attorney ineffectiveness as set forth

in the seminal Supreme Court precedent on that subject,

Strickland v. Washington, supra, 466 U.S. 668, 104 S. Ct.

2052. See Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357,

359-60 (2002) (per curiam). Instead, Hampton maintains

that the court unreasonably applied those standards.

“A state-court decision that correctly identifies the govern-

ing legal rule but applies it unreasonably to the facts of

a particular prisoner’s case certainly would qualify as a

decision ‘involv[ing] an unreasonable application of . . .

clearly established Federal law.’ ” Williams, 529 U.S. at 407-

08, 120 S. Ct. at 1520. “Unreasonable” means something

more than “mistaken,” however. Visciotti, 123 S. Ct. at 360,

361; Williams, 529 U.S. at 410, 120 S. Ct. at 1522;

Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), cert.

No. 01-4186 47

denied, 123 S. Ct. 1802 (2003). A state court decision is

unreasonable for purposes of section 2254(d)(1) if its ap-

plication of Supreme Court precedent “l[ies] well outside the

boundaries of permissible differences of opinion.” Id., citing

Williams, 529 U.S. at 411, 120 S. Ct. at 1522; see also

Visciotti, 123 S. Ct. at 361 (“[t]he federal habeas scheme

. . . authorizes federal-court intervention only when a state-

court decision is objectively unreasonable”). “Our task is to

uphold those outcomes which comport with recognized con-

ventions of legal reasoning and set aside those which do

not.” Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003).

In relevant part, Hampton’s habeas petition contends that

he was denied his Sixth Amendment right to the effective

assistance of trial counsel. In order to succeed on a claim of

attorney ineffectiveness, a petitioner must demonstrate

both that his counsel’s conduct fell below an objective

standard of reasonableness and that his counsel’s sub-

standard performance prejudiced him. Strickland, 466 U.S.

at 687, 104 S. Ct. at 2064.

The first Strickland showing entails proof that the peti-

tioner’s trial attorney “made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defen-

dant by the Sixth Amendment.” Ibid. In assessing the

adequacy of an attorney’s performance, the court’s scrutiny

of course must be “highly deferential,” id. at 689, 104 S. Ct.

at 2065, allowing ample room for differences of professional

opinion among attorneys as to how one might best represent

the defendant, id. at 689-90, 104 S. Ct. at 2065-66.

A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of coun-

sel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time. Because of the

difficulties inherent in making the evaluation, a court

48 No. 01-4186

must indulge a strong presumption that counsel’s con-

duct falls within the wide range of reasonable pro-

fessional assistance; that is, the defendant must over-

come the presumption that, under the circumstances,

the challenged action “might be considered sound trial

strategy.” See Michel v. Louisiana, [350 U.S. 91, 101, 76

S. Ct.158, 164 (1955)].

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see also

Cone, 535 U.S. at 698, 702, 122 S. Ct. at 1852, 1854.

The second prong of the Strickland inquiry requires a

demonstration of prejudice, that is, proof that “counsel’s

errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” 466 U.S. at 687, 104

S. Ct. at 2064. Prejudice is established when “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been differ-

ent.” Id. at 694, 104 S. Ct. at 2068. This standard does not

require the petitioner to convince the court that his attor-

ney’s ineffectiveness “more likely than not altered the out-

come in the case.” Id. at 693, 104 S. Ct. at 2068; see also

Visciotti, 123 S. Ct. at 359; Nix v. Whiteside, 475 U.S. 157,

175, 106 S. Ct. 988, 998 (1986); White v. Godinez, 301 F.3d

796, 804 (7th Cir. 2002). Rather, a “reasonable probability”

is one “sufficient to undermine confidence in the outcome.”

Id. at 694, 104 S. Ct. at 2068. Even if the odds that the

defendant would have been acquitted had he received

effective representation appear to be less than fifty percent,

prejudice has been established so long as the chances of ac-

quittal are better than negligible. Miller v. Anderson, 255

F.3d 455, 459 (7th Cir. 2001), judgment modified, 268 F.3d

485 (7th Cir. 2001).

1. Failure to Investigate Exculpatory Eyewitnesses

Hampton’s ineffectiveness claim is based primarily upon

what he contends was Rodgon’s failure to conduct a reason-

No. 01-4186 49

able pretrial investigation by contacting the occurrence

witnesses whose names had been give to him and by failing

make any effort of his own to locate and contact other eye-

witnesses.

The duty to investigate derives from counsel’s basic

function, which is “ ‘to make the adversarial testing

process work in the particular case.’ ” Kimmelman v.

Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574 (1986)

(quoting Strickland, 466 U.S. at 690, 104 S. Ct. 2052).

“Because that testing process generally will not function

properly unless defense counsel has done some in-

vestigation into the prosecution’s case and into various

defense strategies, [the Supreme Court has] noted that

‘counsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary.’ ” Id. (quoting Strickland,

466 U.S. at 691, 104 S. Ct. 2052).

Brown v. Sternes, 304 F.3d 677, 691 (7th Cir. 2002). The

Illinois Appellate Court characterized Rodgon’s decision not

to present testimony from eyewitnesses who might have

testified favorably for Hampton as a strategic decision that

“cannot” support a claim of attorney ineffectiveness. App.

Ct. Order at 6. The Supreme Court has, true enough, ob-

served that “strategic choices made after thorough investi-

gation of law and facts relevant to plausible options are

virtually unchallengeable.” Strickland, 466 U.S. at 690, 104

S. Ct. at 2066 (emphasis supplied). The Court added,

however, that “strategic choices made after less than com-

plete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limita-

tions on investigation.” Id. at 690-91, 104 S. Ct. at 2066

(emphasis supplied). We also pointed out in Crisp v.

Duckworth that “[alt]hough there may be unusual cases

when an attorney can make a rational decision that inves-

tigation is unnecessary, as a general rule an attorney must

50 No. 01-4186

investigate a case in order to provide minimally competent

representation.” 743 F.2d 580, 583 (7th Cir. 1984), cert.

denied, 469 U.S. 1226, 105 S. Ct. 1221 (1985). Thus, among

the questions posed by Hampton’s claim are whether

Rodgon’s omission to contact and present exculpatory eye-

witness was indeed a strategic decision, whether that deci-

sion was based on a complete or incomplete investigation,

and whether, if based on an incomplete investigation,

“reasonable professional judgment” supported a limited

investigation. See Montgomery v. Petersen, 846 F.2d 407,

413 (7th Cir. 1988) (“counsel [has] a duty to contact a poten-

tial witness unless counsel ‘can make a rational decision

that investigation is unnecessary’ ”) (quoting Crisp, 743

F.2d at 583).

The district court made several threshold factual deter-

minations that have a substantial impact on our evaluation

of the ineffectiveness claim insofar as the claim rests on

Rodgon’s failure to investigate exculpatory eyewitnesses.

The court found first that Hampton had given Rodgon the

names of three eyewitnesses (Garner, Gregory Mallory, and

Williams), and in so finding rejected Rodgon’s testimony to

the contrary. 2001 WL 1518533, at *8. It found further that

Rodgon had not only failed to contact not only these wit-

nesses, but had also failed to independently pursue other

available eyewitnesses. Id. Third, except as to Garner, the

court found that Rodgon had no tactical or strategic reason

for not following up with such witnesses. Id. at *8, *16.

Although the State does not expressly challenge these find-

ings as clearly erroneous, see Foster v. Schomig, 223 F.3d

626, 634 n.4 (7th Cir. 2000), cert. denied, 532 U.S. 944, 121

S. Ct. 1407 (2001), it does nibble about their edges, taking

issue with the way in which the court evaluated some of the

evidence underlying its findings.

The State does not appear to quarrel with the district

court’s finding that Hampton gave the names of Garner,

No. 01-4186 51

Gregory, and Williams to Rodgon. In its recitation of the

evidence presented to Judge Kennelly, the State points out

that Rodgon denied having been given these names by

Hampton, insisting that he would have investigated had

he been given the names of such witnesses. State Br. at 25.

Hampton, on the other hand, testified that he did give

Rodgon this information. The choice of whom to believe fell

to Judge Kennelly, who heard them both testify. See Foster,

223 F.3d at 634 n.4; see also Sullivan v. Fairman, supra,

819 F.2d at 1392-93. Rodgon’s 1987 letter to the ARDC,

which indicated that he and Hampton did discuss potential

(unnamed) witnesses, figured into the judge’s credibility

assessment. See 2001 WL 1518533, at *7. The State sug-

gests that the district court gave the ARDC letter too much

weight, noting that Rodgon’s mere reference to potential

witnesses “does not mean that he failed to investigate any

witnesses.” State Br. at 50. That is true enough. However,

the principal inference that Judge Kennelly drew from the

letter was that Hampton, contrary to Rodgon’s testimony,

had identified potential defense witnesses for Rodgon. 2001

WL 1518533, at *7. Considered along with Hampton’s

testimony, that inference was not unreasonable. Judge

Kennelly’s finding that Hampton did give the names of

Garner, Williams, and Gregory Mallory to Rodgon is amply

supported by the record and is not clearly erroneous.

The State appears to take some issue with the district

court’s next finding—that Rodgon made no attempt to con-

tact the witnesses whose names Hampton had given him or

to identify other potentially exculpatory eyewitnesses on his

own. The record, we should point out, is devoid of any evi-

dence that Rodgon actually did make such an attempt.

Rodgon himself simply denied that Hampton had given him

the names of any witnesses and said that he did not know

who, other than Hampton’s co-defendants, might be favor-

52 No. 01-4186

able occurrence witnesses.13 The district court found it

noteworthy that Rodgon’s trial file lacked any memoranda

or notations indicating that Rodgon (or an investigator) had

spoken with any witnesses. 2001 WL 1518533, at *7. The

State suggests that there may be explanations other than

a failure to interview witnesses for the lack of documenta-

tion in Rodgon’s file. State Br. at 49. Rodgon did testify that

he had made notes that, by the time of the hearing before

Judge Kennelly, were missing from the file. “I had notes. I

know I had notes. I don’t know where they are because the

file got split up, and it has been 20 years almost, 19 years.”

R. 59-1 at 93. But Rodgon did not specify what type of notes

these were, nor was he able to identify any occurrence

witness that he did contact. In the absence of any evidence

that Rodgon had spoken with such witnesses, Judge

Kennelly permissibly concluded that Rodgon made no effort

to locate and interview potentially exculpatory eyewit-

nesses. Again, his finding is amply supported by the record

and is not clearly erroneous.14

13

Garner, Gregory, and Williams each averred that Rodgon had

never contacted him.

14

The State suggests that “Rodgon would [not] have been able to

file numerous pretrial motions requiring extensive research, pre-

pare discovery requests, conduct pretrial hearings and conduct

lengthy and vigorous cross-examinations of all the State witnes-

ses” without having conducted a more extensive pretrial investiga-

tion than reflected in the documentation remaining in the case

file. State Br. at 49. This contention misses the point, however.

The district court never suggested, let alone held, that Rodgon’s

representation of Hampton was deficient in all respects. Consis-

tent with the ineffectiveness claim that Hampton asserted, the

court focused on Rodgon’s failure to look for eyewitnesses who

might have exonerated Hampton. Rodgon’s representation of

Hampton might well have been conscientious and effective in

other respects, and we are obliged to consider Rodgon’s perfor-

(continued...)

No. 01-4186 53

Notably, the State mounts no direct challenge to the dis-

trict court’s finding that Rodgon’s failure to pursue excul-

patory eyewitnesses was not a strategic decision.15 The

district court observed that although the Illinois Appellate

Court had labeled it as such, this finding “ ‘rests on thin

air’ ” and consequently was entitled to no deference. 2001

WL 1518533, at *15 (quoting Mendiola v. Schomig, 224 F.3d

589, 592 (7th Cir. 2000), cert. denied, 533 U.S. 949, 121

S. Ct. 2591 (2001)). “Neither the state trial court nor the

Appellate Court had any basis to determine why Rodgon

had not interviewed Hampton’s witnesses (either the occur-

rence witnesses or the ‘character’ witnesses); the finding

that it was a strategic move was entirely speculative.” Id.

14

(...continued)

mance as a whole. See Miller v. Anderson, supra, 255 F.3d at 458-

59. But the possibility that Rodgon was competent in other

aspects of his lawyering by no means rules out the possibility that

his failure to investigate potential exculpatory defense witnesses

amounted to constitutional ineffectiveness. Cf. Bryant v. Scott, 28

F.3d 1411, 1418-19 (5th Cir. 1994).

15

The State does suggest that in making this determination, the

district court “closed its eyes” to the ramifications of one document

found in Rodgon’s trial folder—a copy of Ronald Mallory’s pretrial

statement to prosecutors. State Br. at 49. Among other things,

that statement asserts that Ronald Mallory did not see anyone

except his brother Gregory at the concert, that he did not see

Garner there at all, and that he never left the balcony of the

Amphitheatre. R.58 Petitioner’s Ex. 4 at 4-5. In these particulars,

Ronald Mallory’s statement is inconsistent with the accounts giv-

en by Williams, Garner, Gregory Mallory, and Hampton. (Mallory

admitted at trial that he had lied in his pretrial statement. R. 48-

3 at 1158, 1175.) But those inconsistencies in and of themselves

hardly would have justified a decision not to speak with the wit-

nesses whose names Hampton gave to Rodgon or to look for addi-

tional eyewitnesses. See, e.g., Bryant v. Scott, supra n.14, 28 F.3d

at 1418.

54 No. 01-4186

Our own review of the record confirms the district court’s

assessment: there is no evidence to support the notion that

Rodgon made a strategic decision not to look for exculpatory

eyewitnesses. As the district court put it, Rodgon’s omission

to pursue such witnesses was one that occurred by default

rather than design. Id. at *16.

In any case, an attorney’s decisions are not immune from

examination simply because they are deemed tactical.

Miller, 255 F.3d at 458; Crisp, 743 F.2d at 584. Strickland

itself makes clear that “strategic choices made after less

than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the

limitations on investigation.” 466 U.S. at 690-91, 104 S. Ct.

at 2066 (emphasis ours). Rodgon’s decision not to call

exculpatory eyewitnesses in Hampton’s defense—if it was

a decision at all—was necessarily one made after an in-

complete investigation, for Rodgon never spoke with such

witnesses to find out what they had to say. Only if it was

objectively reasonable for Rodgon to self-limit his investiga-

tion in this way may his “decision” not to present exculpa-

tory eyewitnesses itself be considered reasonable. Ibid.; see

also Montgomery, 846 F.2d at 413; Crisp, 743 F.2d at 584.

As we conclude below, given the circumstances confronting

Rodgon, it was not reasonable for Rodgon to believe that

it was unnecessary to identify and interview potentially

exculpatory eyewitnesses to the events underlying the

charges against Hampton.

Eyewitness testimony was the linchpin of the State’s case

against Hampton. There was no physical evidence tying

Hampton to the attack upon the three Latino concertgoers.

The only evidence implicating Hampton in the attack—

beyond Hampton’s conceded presence at the concert—came

from the three prosecution witnesses (victims Denise M.

and Martha N., and William Heinrichs, the security guard)

who identified Hampton as one of the attackers, and (to a

lesser extent) from Keith Powell, who identified Hampton

No. 01-4186 55

as among the group of individuals marching toward the

stage of the auditorium but had not seen Hampton attack

anyone. None of the three individuals who identified

Hampton as an assailant knew Hampton, and none of those

three witnesses had more than a momentary glimpse of the

assailant whom they identified as Hampton. They got that

look under conditions that were anything but ideal: the

attack was chaotic and perpetrated by a large group of

people, and the house lights in the Amphitheatre had been

dimmed for the concert. Moreover, by their own account,

none of the witnesses had, prior to seeing a line-up, pro-

vided a physical description of the assailant they identified

as Hampton to the authorities.

Under these circumstances, the first and most obvious

line of attack on the prosecution’s case was to emphasize

the vulnerabilities in the identification testimony; and this

Rodgon did with vigor. Through his cross-examination of

the State’s witnesses, Rodgon competently highlighted each

of the circumstances that might have given the jury reason

to doubt the ability of the State’s witnesses to identify

Hampton beyond a reasonable doubt as one of the assail-

ants.

But whatever the weaknesses in the State’s case that

Rodgon succeeded in exposing in this fashion, his defense of

Hampton did not elicit any testimony that Hampton

was not among the group of individuals who attacked the

three victims. The omission of such exculpatory evidence

cannot be discounted. None of the witnesses who identified

Hampton as an assailant was proven to be wholly incredi-

ble, and none of the weaknesses and inconsistencies in their

identifications was fatal to the State’s case. Each of them

testified that it was Hampton she or he had seen, notwith-

standing the difficult conditions under which they had seen

him. Opposing testimony from other eyewitnesses to the

attacks, positing that Hampton was not a participant,

would have given the jury a qualitatively different and more

56 No. 01-4186

powerful reason to believe that the State’s witnesses were

mistaken in their identifications of Hampton. See Washing-

ton v. Smith, supra, 219 F.3d at 634 (additional alibi

witnesses that attorney failed to contact “would have added

a great deal of substance and credibility to [petitioner’s]

alibi”); Wright v. Gramley, supra, 125 F.3d at 1042 (where

state’s case against petitioner relied almost exclusively on

testimony of two eyewitnesses who saw assailant only

briefly, occurrence witnesses who gave physical description

of assailant “radically different” from petitioner’s appear-

ance “would have transformed a relatively weak defense

into a far stronger one”); Crisp, 743 F.3d at 585 (“[h]aving

independent witnesses corroborate a defendant’s story may

be essential”); United States ex rel. Cosey v. Wolff, 727 F.2d

656, 658 n.3 (7th Cir. 1984) (witnesses whose names

petitioner had given to his counsel “would not only have

corroborated [petitioner’s] story and further impeached the

victim’s version, but . . . if the witnesses were believed, their

testimony alone would have entirely exculpated [peti-

tioner]”), overruled on other grounds, United States v.

Payne, 741 F.2d 887, 891 n.4 (7th Cir. 1984) (per curiam).

The Illinois Appellate Court’s assertion that such testimony

would have been “redundant” is plainly wrong; testimony by

one eyewitness to a crime that the perpetrator was not the

person named by another eyewitness is the antithesis of

redundancy. See Washington, 219 F.3d at 634; Montgomery,

846 F.2d at 415; Crisp, 743 F.2d at 585; Cosey, 727 F.2d at

658 n.3. For that very reason, the Fifth Circuit has recog-

nized that “[t]he failure to interview eyewitnesses to a crime

may strongly support a claim of ineffective assistance of

counsel.” Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994)

(citing Gray v. Lucas, 677 F.2d 1086, 1093 n.5 (5th Cir.

1982), cert. denied, 461 U.S. 910, 103 S. Ct. 1886 (1983)).

As the evidence presented to Judge Kennelly makes

clear, there were such exculpatory eyewitnesses available

No. 01-4186 57

to the defense. Hampton provided Rodgon with the names

and means of contacting three of these witnesses—Garner,

Gregory Mallory, and Williams. Each of those witnesses

knew Hampton, had attended the concert, had witnessed

the attacks, and was prepared to testify that Hampton had

not participated in those attacks. Attorneys representing

Hampton’s co-defendants had located other eyewitnesses to

the attacks who resided at the public housing project where

Hampton lived and thus might have known or at least

recognized Hampton. As the district court pointed out,

Rodgon would have been able to identify those witnesses

simply by consulting with his colleagues and/or investigat-

ing the people identified on their witness lists. At least one

of those individuals, Gregory Hubbard, would have testified

that Hampton did not participate in the attacks.

Like the district court, we shall assume that Rodgon had

a valid reason not to contact Garner, who (unlike the other

prospective witnesses) had been charged with, and had

pleaded guilty to, participating in the attacks. Rodgon was

aware of Garner’s guilty plea, and he was also aware that

the proffer of evidence that the State recited each time one

of Hampton’s co-defendants pleaded guilty expressly im-

plicated Hampton in the attacks. Garner was not asked

to affirm the truth of the government’s proffer (neither

did he contest its accuracy). Nonetheless, Garner’s guilty

plea in the face of a proffer that expressly implicated both

Hampton as well as himself obviously diminished his utility

as a defense witness to some degree. But see Bryant, 28

F.3d at 1419 (without interviewing a co-defendant who had

pleaded guilty, petitioner’s trial attorney “was ill equipped

to assess his credibility or persuasiveness as a witness, de-

spite the objective factors tending to impugn [his] credibil-

ity”); cf. Cosey, 727 F.2d at 658 n.3 (although three of

potential witnesses had reason to be biased in petitioner’s

favor, “that alone is insufficient cause to automatically re-

ject them”).

58 No. 01-4186

But Rodgon had no reason not to contact and interview

the other eyewitnesses Hampton has identified. Those wit-

nesses were not implicated in the attacks, nor did they suf-

fer from any other disability that necessarily would have

impaired their credibility in the eyes of the jury. Although

the State has methodically identified various inconsisten-

cies and imperfections among the recollections of those

witnesses, such flaws—hardly surprising after the passage

of nearly twenty years—cannot excuse Rodgon’s failure to

contact and interview them. Certainly they would bear on

the weight that a jury assessing Hampton’s guilt might

have attached to their testimony, and to that extent they

are relevant to the assessment of prejudice from the failure

to contact them, an assessment we are about to make. But

they are not qualitatively different in kind from the weak-

nesses in the identification testimony of the State’s own

witnesses. A decision that it was unnecessary to look for

and contact such eyewitnesses cannot be described as rea-

sonable. See Washington, 219 F.3d at 632 (trial counsel’s

failure, inter alia, to ascertain what exculpatory evidence

defendant’s witnesses might have was a “flagrant exam-

ple[ ] of ineffectiveness”); Lord v. Wood, 184 F.3d 1083, 1095

(9th Cir. 1999) (counsel cannot assess credibility and de-

meanor of prospective witness without “looking him in

the eye and hearing him tell his story”), cert. denied, 528

U.S. 1198, 120 S. Ct. 1262 (2000). Notably, Rodgon himself

offered no strategic reason for the failure; he simply denied

having any leads on such witnesses—an explanation the

district court found incredible. 2001 WL 1518533, at *7-*8.

The Illinois Appellate Court also thought that testimo-

ny from exculpatory eyewitnesses would have posed

a problem of “guilt by association,” and for that reason it

was reasonable for Rodgon not to contact such witnesses.

App. Ct. Order at 7. Testimony from other eyewitnesses, the

court explained, would have “only serve[d] to emphasize the

fact that defendant went to the concert with the perpetra-

No. 01-4186 59

tors, was present during the assault, and left with the

perpetrators.” Id. The State sounds the same theme in its

briefs. “Petitioner’s potential witnesses all would place him

at the scene of the crime,” the State emphasizes. Reply Br.

at 14. “The testimony of Williams, Mallory and Garner

would have reinforce[d] the fact that Petitioner was [at the

concert] and would have taken away from Rodgon’s strategy

to distance Petitioner from the taint of association and vig-

orously pursue a misidentification theory.” State Br. at 54.

The “guilt by association” concern is altogether a red

herring, however, given the context in which the attacks

occurred. There was never any dispute, and the jury well

knew, that Hampton was present at the concert; so were

thousands of other people. Attending a rhythm and blues

concert is neither a crime nor suggestive of participation in

a crime; and the fact that a horrible assault occurred at the

concert does not cast a pall of suspicion upon everyone who

attended. Furthermore, only one of the four favorable eye-

witnesses that Hampton has identified—Garner—was

implicated in the attacks, and we have assumed that

Rodgon had a valid reason not to contact him. The other

three—Williams, Gregory Mallory, and Hubbard—were

simply bystanders to the assaults, and so would not have

fostered the notion that Hampton was linked to the perpe-

trators by testifying on his behalf. Even to the extent that

these witnesses would have testified that they, along with

Hampton, had attended and left the concert in the company

of other individuals who were perpetrators (which is not

surprising given that they all lived in the same neighbor-

hood), they were no different in that respect from Powell,

the State’s own witness, who knew and rode home on the

bus with the individuals he heard bragging about the

attacks.

For these reasons, we sustain the district court’s determi-

nation that Rodgon’s failure to investigate exculpatory eye-

60 No. 01-4186

witnesses was objectively unreasonable. Such witnesses

were readily available to Rodgon, the testimony of those

witnesses, if believed, would alone have given the jury a

reason to acquit Hampton, and Rodgon had no legitimate

strategic reason not to pursue such witnesses.

We further agree with the district court that Hampton

was prejudiced by his attorney’s ineffectiveness. In explain-

ing why it was unreasonable for Rodgon not to look for

exculpatory eyewitnesses, we have already highlighted sev-

eral of the circumstances that establish prejudice, so we will

briefly recite them again here with belaboring them. With

no physical evidence against Hampton, the prosecution’s

case against him depended entirely on witnesses

who testified that they saw him participate in the attacks.

Those witnesses saw the assailant they identified as

Hampton only briefly and under difficult circumstances,

rendering their identifications of Hampton vulnerable to

challenge. And although Rodgon effectively identified these

vulnerabilities, he presented no testimony to affirmatively

counter the prosecution’s witnesses—i.e., from eyewitnesses

who would have testified that Hampton did not participate

in the attacks. See, e.g., Wright, 125 F.3d at 1042-43; Cosey,

727 F.2d at 658 n.3.

Given the central role that eyewitness testimony played

in this case, the vulnerabilities in the testimony of the

State’s eyewitnesses, and the shortcomings in human per-

ception that so frequently render eyewitness testimony less

reliable than other types of evidence, see Wright, 125 F.3d

at 1043 n.4 (collecting cases), we are more than satisfied

that the failure to investigate exculpatory eyewitnesses

likely affected the outcome of Hampton’s trial. The eyewit-

nesses that Hampton has identified, and whose testimony

the district court found credible, would have given the jury

a powerful reason to doubt Hampton’s culpability.

Two separate acquittals lend support to this notion. First,

the jury acquitted Hampton of the attempted rape of

No. 01-4186 61

Martha N. Recall that according to a written report of a

line-up that Martha N. had viewed, she had picked Ezra

Garner rather than Hampton as her assailant. Detective

Ptak had characterized the report as inaccurate in this

respect. Nonetheless, the report stood as evidence that

Martha N., at least initially, had identified someone other

than Hampton as the person who attempted to rape her.

The jury’s decision to acquit Hampton on that charge, but

not others, suggests that the report gave it reason to doubt

the reliability of Martha N.’s identification in a way that

it did not doubt the other witnesses against Hampton.16

Second, Ronald Mallory ultimately was acquitted of all

charges. Recall that Denise M. had identified Mallory as

one of the men who attempted to place his penis in her

mouth. In his defense, Mallory had testified that he did not

participate in the attack, and he called three additional

witnesses who said the same thing (a fourth witness con-

firmed that he was not a gang member). Mallory’s acquittal

demonstrates the importance of exculpatory eyewitness

testimony and suggests that Hampton’s jury might have

been swayed by such testimony. We recognize that the case

against Mallory was not as strong as the case against

Hampton, in the sense that only one person—Denise M.—

identified him as an assailant. But the State’s case against

Hampton was not qualitatively different from the one

against Mallory; and Denise M., who was also one of

Hampton’s accusers, testified on cross-examination that

it was the men who attempted to put their penises in

her mouth (including Mallory) on whose faces she had

concentrated during the attacks. What substantively made

16

Recall that at one point during deliberations, the jury sent a

note to Judge Strayhorn indicating that it was deadlocked on four

of the charges against Hampton. R. 62 at 189. Although the dead-

lock obviously did not persist, it undercuts the notion that the

case against Hampton was overwhelming in all respects.

62 No. 01-4186

Mallory’s case unique, beyond his own (self-serving) testi-

mony that he did not participate in the attacks, was the

exculpatory eyewitness testimony that Mallory presented.

That testimony was virtually identical to the eyewitness

testimony on which Hampton bases his ineffectiveness

claim, and Mallory’s jury evidently found that testimony

sufficiently persuasive to doubt his accuser.17

The State latches onto a number of omissions, potential

biases, and inconsistencies in and among the testimonies

and affidavits of Garner, Gregory, and Williams, and con-

tends that in view of these vulnerabilities, the district court

was wrong to believe that their testimony likely would have

had any real impact on the outcome of Hampton’s trial. It

notes, for example, that Garner, Gregory, and Williams

were all long-time friends of Hampton’s who, like Hampton,

were present at the scene of the crime; and Garner, it re-

minds us, pleaded guilty to participating in the attacks. Cf.

Montgomery, 846 F.2d at 414 (stressing importance of

independent witnesses); Crisp, 743 F.2d at 585 (same). The

State also points to various incongruities among the af-

fidavits that these three witnesses submitted. Hampton

alleged in his affidavit that he snuck into the concert with

Gregory Mallory and then sat in the center of the theater

with Gregory and Garner until they left the concert.

17

The postconviction court suggested (R. 48-7 at C35), as has the

State (State Br. at 53, Reply Br. at 13) that the case against

Hampton was significantly stronger given that the witnesses

against him included William Heinrichs, the security guard who

testified that he saw an assailant he identified as Hampton as-

saulting Denise M. But Heinrichs’ credibility was far from unques-

tioned. Recall that Heinrichs, notwithstanding his employment

with the Cook County Sheriff, did not come forward as a witness

for more than a week after the attacks (after the police contacted

him), and that he identified Hampton the day after he had seen a

television news report featuring a photograph of Hampton.

No. 01-4186 63

However, Gregory’s affidavit did not mention that he and

Hampton had snuck into the theater together, nor did it

specify with whom Gregory sat during the concert. Garner’s

affidavit omitted any mention of Gregory. And Williams’

affidavit averred that Hampton snuck into the theater

with Garner, and like Garner’s affidavit, it omits mention

of Gregory. These omissions and inconsistencies, in the

State’s view, give reason to doubt the veracity and exculpa-

tory value of the eyewitnesses Hampton has identified.

Moreover, the State asserts that Gregory Mallory proved

himself to be a poor witness: as we have previously noted,

Gregory did not recall exactly where he sat during the

concert, did not remember that Hampton was tried along

with Gregory’s brother Ronald and that the case was tried

before three juries, and could not remember certain repre-

sentations he had made in his affidavit; he also answered a

number of the questions posed to him with answers like “I

don’t know” and “Okay.”

A number of these asserted weaknesses are unremark-

able. It is by no means surprising that the witnesses who

would have exonerated Hampton were his friends—they

were the people he was sitting with at the concert, and as

such they were in a superior position to know whether or

not he had joined the group of men who attacked the three

Latinos. Their friendship with Hampton certainly is a

circumstance that a factfinder would consider in weighing

their credibility, but it is not so impeaching that one can

wholly discount the import of their testimony and the effect

that it might have had on Hampton’s jury. As for the

asserted inconsistencies between the affidavits of Hampton

and the other eyewitnesses, these are by and large inconsis-

tencies of omission rather than outright conflicts. Because

the affidavits were prepared many years after the relevant

events took place, gaps and inconsistencies in the memory

of the affiants are to be expected. See, e.g., Brice v. Nkaru,

220 F.3d 233, 240 (4th Cir. 2000); Grebenick v. Chater, 121

64 No. 01-4186

F.3d 1193, 1200 (8th Cir. 1997). The district judge, who in

contrast to the state courts and to this court heard all but

Williams testify, found them to be credible witnesses.

Two of Hampton’s witnesses—Garner and Gregory

Mallory—did suffer from more serious credibility problems,

but the district court by no means overlooked these flaws as

the State suggests. The court agreed with the State that

Rodgon could not be faulted for failing to contact Garner,

who had pleaded guilty and in doing so had not contested

the evidentiary proffer that inculpated Hampton; Garner’s

testimony therefore played no role in the court’s decision to

grant relief to Hampton. Gregory Mallory’s testimony did

factor into the court’s assessment, but the court was candid

about his shortcomings as a witness. Years of drug abuse

may well have taken their toll on Gregory’s faculties, al-

though Mallory denied that his memory was impaired. But

the district court had to look backward and consider what

effect Gregory’s testimony might have had in 1982, when

Hampton and his co-defendants were tried. Gregory was not

yet a heroin user then; moreover, he had not only testified

in his brother Ronald’s successful defense, but he also had

testified at that time that Hampton had not participated in

the attacks. Under those circumstances, Judge Kennelly

had reason to believe that Gregory’s current testimony was

not the product of delusion or fabrication and that Gregory

would have made a credible witness for Hampton in 1982.

For all of these reasons, Hampton was prejudiced by his

attorney’s failure to look for and interview exculpatory oc-

currence witnesses. A diligent attorney would have made an

effort to locate such witnesses and, upon learning what they

had to say, surely would have put them on the witness

stand to testify on Hampton’s behalf. Although we cannot

say with confidence that it is more likely than not that

Hampton would have been acquitted had such witnesses

been presented, his chances of acquittal with the support of

No. 01-4186 65

those witnesses certainly would have been better than neg-

ligible. The State’s case, although more than sufficient to

convict Hampton, was not so overwhelming that the

outcome of the trial was a foregone conclusion.

Although we have concluded that Hampton’s claim of

ineffective assistance of counsel is meritorious, our work

does not end there. Hampton is entitled to relief in habeas

corpus only if the Illinois Appellate Court’s rejection of his

ineffectiveness claim amounts to an objectively unreason-

able application of Strickland. See Visciotti, 123 S. Ct. at

361; Williams, 529 U.S. at 411, 120 S. Ct. at 1522; ante at

46-47. For the reasons that follow—reasons that we have

already touched upon—we believe that the Illinois Appel-

late court unreasonably applied both prongs of the Strick-

land test for ineffectiveness.

The Illinois Appellate Court recognized that Hampton’s

trial counsel was required either to undertake a reasonable

investigation or to make a reasonable decision that an in-

vestigation was unnecessary. App. Ct. Order at 6. As found

by Judge Kennelly, Rodgon made no effort to locate and

speak with potentially favorable occurrence witnesses. 2001

WL 1518533, at *8. Under Strickland, that failure to in-

vestigate can be excused only if the decision not to look

for such witnesses was itself reasonable. 466 U.S. at 690-91,

104 S. Ct. at 2066. Yet, neither of the two explanations that

the state court posited for Rodgon’s failure to pursue ex-

culpatory eyewitnesses—(1) those witnesses would place

Hampton at the scene of the crime and link him to the

perpetrators of the assaults, and (2) their testimony would

be redundant (App. Ct. Order at 7)—is plausible, as we

have pointed out. It was never in dispute that Hampton

attended the concert, and testimony that he did so would

not have incriminated him any more than it would have

incriminated the thousands of other people who attended

but did not participate in the attacks. Nor would such

testimony have linked Hampton to the other perpetrators.

66 No. 01-4186

With the exception of Garner, whom we have assumed

Rodgon was not obligated to contact in view of his guilty

plea, none of the exculpatory witnesses Hampton has

identified was implicated in the offenses. At the same time,

eyewitness testimony to the effect that Hampton did not

participate in the assaults logically cannot be written off

as redundant. Whatever ammunition Rodgon had amassed

against the State’s witnesses, he had no witness pointing

affirmatively to Hampton’s innocence. In short, the record

supplies no sound reason for Rodgon to have concluded

that it was unnecessary to investigate eyewitnesses who

would have exculpated Hampton. The Illinois Appellate

Court’s contrary assessment was therefore unreasonable. It

is wholly inconsistent with the facts of the case. See, e.g.,

Rice v. McCann, 339 F.3d 546, 549 (7th Cir. 2003) (state

court’s application of federal law is reasonable where it is

“ ‘at least minimally consistent with the facts and circum-

stances of the case’ ”) (quoting Sanchez v. Gilmore, 189

F.3d 619, 623 (7th Cir. 1999), cert. denied, 529 U.S. 1089,

120 S. Ct. 1724 (2000)). It also stands in such tension with

the duty to investigate acknowledged in Strickland that it

was not only erroneous, but unreasonable. See Ward v.

Sternes, supra, 334 F.3d at 705.

As for prejudice, the Illinois Appellate Court character-

ized the proof against Hampton as overwhelming, so that

even if Rodgon had looked for, contacted, and presented

exculpatory eyewitnesses on Hampton’s behalf, there is no

reasonable probability that the outcome of the trial would

have been different. Again, we do not doubt that the trial

record as it stands supports Hampton’s conviction. But as

we have emphasized, the case against Hampton rested en-

tirely on the testimony of eyewitnesses who said that he

participated in the assaults, and the identification testi-

mony of these witnesses was by no means invulnerable.

Against that backdrop, one cannot summarily discount the

possibility that the outcome of the trial might have been

different had the jury heard credible testimony from other

No. 01-4186 67

eyewitnesses that Hampton was not one of the assailants.

Recall that under Strickland, Hampton need not convince

the court that such testimony more likely than not would

have resulted in his acquittal; he need only establish that

this is a reasonable probability, a better than negligible

likelihood. 466 U.S. at 693-94, 104 S. Ct. at 2068; Miller v.

Anderson, supra, 255 F.3d at 459. The exculpatory eyewit-

nesses whom Rodgon never pursued have now been located,

examined under oath, and found credible by the district

judge. Obviously, we cannot predict how the jury would

have resolved the credibility contest between the State’s

witnesses and Hampton’s, but nothing in the record permits

one to say that the jury inevitably would have discredited

the exculpatory eyewitnesses. The appellate court’s one-

sentence holding that Hampton could not establish preju-

dice (App. Ct. Order at 5) was not a reasonable application

of Strickland.

The Illinois Appellate Court’s decision turned a blind eye

both to the nature of the State’s case and to the importance

of the eyewitnesses that Rodgon failed to locate and inter-

view. Those witnesses, if believed, would alone have given

the jury a reason to acquit Hampton, see Cosey v. Wolff,

supra, 727 F.2d at 658 n.3, and given the vulnerabilities in

the testimony of the State’s witnesses, would have in-

creased the odds of an acquittal. See Washington v. Smith,

supra, 219 F.3d at 634; Wright v. Gramley, supra, 125 F.3d

at 1042-43. Rodgon’s failure to seek out exculpatory eye-

witnesses who were readily available to him cannot fairly

be described as a reasonable decision. Nor can the possibil-

ity of a different outcome had Rodgon pursued this line

of defense reasonably be quantified as no better than neg-

ligible. See Miller, 255 F.3d at 459. The state court’s

application of Strickland was therefore unreasonable, and

Hampton is entitled to relief.

68 No. 01-4186

2. Failure to Fulfill Promises Made in Opening

Statement

In his opening statement, Rodgon made two representa-

tions that form the basis for Hampton’s second claim of

ineffectiveness. He promised the jury first that “Mr.

Hampton will testify and tell you that he was at the concert.

Mr. Hampton will tell you that he saw what happened but

was not involved with it.” R. 48-2 at 543. He went on to

promise the jury that “[t]he evidence will show that my

client is not a member of any gang nor a part of a gang . . .

.” Id. at 544. Rodgon did not deliver on either prom-

ise—Hampton did not testify, and the jury never heard any

evidence establishing that Hampton lacked a gang affilia-

tion.

It bears noting that the foundation for this claim is the

broken promise as opposed to the decision not to pursue

a particular line of testimony. We may assume, without

deciding, that it was reasonable for Rodgon to advise

Hampton not to testify and not to present testimony from

other witnesses about his lack of gang ties; such decisions

are often motivated by strategic considerations that com-

mand deference from the judiciary. E.g., Taylor v. United

States, 287 F.3d 658, 662 (7th Cir. 2002); Foster v. Schomig,

supra, 223 F.3d at 631. But Rodgon promised the jury that

it would hear from Hampton and that it would also hear

evidence that he had no gang involvement, and he reneged

on his promises without explaining to the jury why he did

so. Turnabouts of this sort may be justified when “unex-

pected developments . . . warrant . . . changes in previously

announced trial strategies.” Ouber v. Guarino, 293 F.3d 19,

29 (1st Cir. 2002) (citing Dutton v. Brown, 812 F.2d 593, 598

(10th Cir.), cert. denied, 484 U.S. 836, 870, 108 S. Ct. 116,

197 (1987)); see also, e.g., Drake v. Clark, 14 F.3d 351, 356

(7th Cir. 1994). However, when the failure to present the

promised testimony cannot be chalked up to unforeseeable

No. 01-4186 69

events, the attorney’s broken promise may be unreasonable,

for “little is more damaging than to fail to produce impor-

tant evidence that had been promised in an opening.”

Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988); see also

Washington v. Smith, supra, 219 F.3d at 634 (failure to

produce witness identified in notice of alibi and mentioned

during voir dire gave rise to “negative inference” against the

defendant). The damage can be particularly acute when it

is the defendant himself whose testimony fails to material-

ize:

When a jury is promised that it will hear the defen-

dant’s story from the defendant’s own lips, and the

defendant then reneges, common sense suggests that

the course of trial may be profoundly altered. A broken

promise of this magnitude taints both the lawyer who

vouchsafed it and the client on whose behalf it was

made.

Ouber, 293 F.3d at 28.

In this case, the Illinois Appellate Court ascribed the

unfulfilled promise that Hampton would testify to a change

in trial strategy. App. Ct. Order at 8. In the postconviction

proceeding, Rodgon had testified that at the time of opening

statements, he believed that Hampton would take the stand

in his own defense. Subsequently, however, he raised with

Hampton the possibility that his testimony might aggravate

the possibility of the jury thinking him guilty by associa-

tion. He therefore communicated this concern to Hampton,

and Hampton made the decision not to testify. The

postconviction judge found Rodgon credible on this point. R.

48-7 at D58-59. In the Appellate Court’s view, this change

of strategy “cannot support an ineffective assistance of

counsel claim.” App. Ct. Order at 8.

The potential disadvantages of Hampton’s testimony were

ones that would have been obvious from the outset of the

case, however, and thus do not justify Rodgon’s decision to

70 No. 01-4186

promise the jury that Hampton would testify and then

renege on that promise. We have already voiced our skep-

ticism of the validity of the “guilt by association” theory;

and the record does not shed any light on the reasons why

Rodgon thought that Hampton otherwise might not hold

up on cross-examination. But we may put these points aside

and assume that Rodgon legitimately concluded that

Hampton’s testimony posed a substantial risk to the defense

for the reasons he cited. Nonetheless, the circumstances

that gave Rodgon pause were entirely foreseeable at the

time he made his opening statement. Hampton himself was

obviously available to Rodgon before the trial started, such

that Rodgon could have assessed his strengths and weak-

nesses as a prospective defense witness. If Hampton was a

weak witness, Rodgon should have ascertained that before

he announced that Hampton would take the stand; nothing

in the record suggests that anything material to Hampton’s

worth as a witness remained a secret until after Rodgon

had made that promise. See Oubler, 293 F.3d at 29. Nor did

the guilt by association issue emerge unexpectedly later in

the trial. It was never a secret that Hampton was present

at the concert, that he attended the concert with friends, or

that he knew other individuals (for example, Garner) who

were implicated in the attacks.

Thus, to the extent that Rodgon had legitimate reasons to

conclude that Hampton should not testify, it was unreason-

able for him to tell the jury that Hampton would take the

stand. Nothing was to be gained from making that promise,

only to renege upon it later without explanation. The jury

was lead to believe that Hampton had a story to tell that

was diametrically opposed to that of his accusers; it was

told, in essence, that there were two versions of what oc-

curred and that it would have the opportunity to evaluate

Hampton’s own credibility in choosing between those ver-

sions. In the end, however, the jury never heard a second

version of what occurred—from Hampton or any other

No. 01-4186 71

eyewitness; it heard only the State’s account of events. And

in that context, Hampton’s unexplained failure to take the

witness stand may well have conveyed to the jury the im-

pression that in fact there was no alternate version of the

events that took place, and that the inculpatory testimony

of the prosecution’s witnesses was essentially correct. See

Harris v. Reed, supra, 894 F.2d at 879 (failure to present

exculpatory testimony as promised “left the jury free to

believe [the prosecution’s witness’s] account of the inci-

dent as the only account”); see also Ouber, 293 F.3d at 34.

Rodgon’s decision to promise Hampton’s testimony and then

to break with that promise was objectively unreasonable.

Although less important, we also cannot ignore the failure

to present testimony that Hampton was not involved with

a gang, an omission that the state appellate court noted

(App. Ct. Order at 8) but did not explicitly address (see id.

at 7-9). Powell’s testimony that the group of men who

perpetrated the attacks had approached the stage of the

theater chanting “Third World Disciple Nation” and making

apparent gang signals with their hands suggested that the

attacks were gang-related. Against that backdrop, evidence

that Hampton was neither a gang member nor involved

with a gang arguably was relevant to an assessment of

Hampton’s guilt or innocence in the sense that it tended to

make his participation in the attacks less likely. Just as a

defendant’s affiliation with a gang may be probative of his

relationship with other participants in a crime and his

connection to the charged offense, see United States v.

Thomas, 86 F.3d 647, 652 (7th Cir.), cert. denied, 519 U.S.

967, 117 S. Ct. 392 (1996), proof that the defendant lacks

any gang affiliation may bear on the likelihood that he

participated in criminal activity with unmistakable gang

overtones. To be sure, evidence of a defendant’s gang af-

filiation or lack thereof is by no means dispositive of his

guilt or innocence. But to the extent it sheds light upon

72 No. 01-4186

the defendant’s relationship with other perpetrators of the

crime, and perhaps on his motive to commit the crime, it is

relevant nonetheless. Rodgon himself plainly recognized as

much when he informed the jury that Hampton was not a

gang member and, more to the point, told jurors that they

would hear evidence to that effect. As the record reveals

and as Judge Kennelly found, testimony along these lines

was readily available to Rodgon; he simply failed to pursue

it. We may assume that it would have been entirely rea-

sonable for Rodgon not to look for and introduce such

evidence in the absence of a promise that such evidence

would be presented. But having created an expectation that

the jury would hear evidence tending to disassociate

Hampton from the group of men who perpetrated the at-

tack, it was unreasonable for Rodgon not to follow through

by eliciting testimony on this point. His failure to do so

could only have undercut the credibility of the defense with

the jury.

The Illinois Appellate Court’s determination that it was

reasonable for Hampton Rodgon to make and then break

these promises as a matter of evolving trial strategy was

unreasonable. Making such promises and then abandoning

them for reasons that were apparent at the time the prom-

ises were made18 cannot be described as legitimate trial

strategy. Promising a particular type of testimony creates

an expectation in the minds of jurors, and when defense

counsel without explanation fails to keep that promise, the

jury may well infer that the testimony would have been

18

The record is silent as to Rodgon’s reasons, if any, for abandon-

ing the promise to present evidence that Hampton was not affil-

iated with a gang. In the absence of any indication that some sub-

sequent development rendered Rodgon unable to present such evi-

dence, we shall assume that Rodgon decided not to present such

testimony for reasons akin to the concerns that led him not to call

Hampton himself to the stand.

No. 01-4186 73

adverse to his client and may also question the attorney’s

credibility. In no sense does it serve the defendant’s in-

terests. Abandoning the promise may be necessary when

things do not pan out as the attorney reasonably expected

or the detriments of the promised evidence become clear

only later. But for the reasons we have discussed, that was

not the case here. Rodgon’s failure to call Hampton as a

witness or to establish his lack of gang ties cannot be

chalked up to a change in trial strategy. The Illinois

Appellate Court’s effort to do so is inconsistent with the

facts of the case, and unreasonable in that regard. See Rice

v. McCann, supra, 339 F.3d at 549.

Although we agree with the district court that Rodgon’s

breach of the promises he made in the opening statement

was not so prejudicial that it would support relief in and of

itself, the breach serves to underscore the more important

failure to investigate exculpatory occurrence witnesses. Al-

though Rodgon exploited what weaknesses there were in

the State’s case, he elicited no affirmative evidence that

Hampton did not participate in the attacks. The jury was

given reason to question how good of a look the State’s

witnesses had gotten of the assailant they identified as

Hampton, but was presented with no evidence that the as-

sailant was not Hampton. What is more, Rodgon promised

the jury that it would hear Hampton testify to his inno-

cence, and then failed to deliver on that promise. He pro-

mised the jury that it would hear evidence that Hampton

was not involved in any gang, and then failed to deliver on

that promise as well. Those broken promises themselves

supplied the jury with reason to believe that there was no

evidence contradicting the State’s case, and thus to doubt

the validity of Hampton’s defense. See Harris, 894 F.2d at

879.

74 No. 01-4186

IV.

For the reasons we have identified, we conclude Hampton

was deprived of the effective assistance of trial counsel, in

violation of the Sixth and Fourteenth Amendments to the

Constitution. The Illinois Appellate Court’s contrary con-

clusion was the result of an unreasonable application of the

principles identified in Strickland v. Washington. After

careful review of the record, we are left with the definite

and firm conviction that the result of Hampton’s trial is not

reliable. We therefore agree with the district judge, who

handled this case with commendable thoroughness, that

Hampton is entitled to a writ of habeas corpus.

AFFIRMED

MANION, Circuit Judge, dissenting. Twenty-one years ago

Patrick Hampton began to serve a sixty-year sentence for

deviate sexual assault, attempted rape and related crimes.

At his trial, the prosecution presented the testimony of two

of the three victims, Martha N. and Denise M., who clearly

identified and implicated Hampton in the brutal crimes. In

addition, the prosecution presented the testimony of a se-

curity guard at the concert, who unequivocally identified

Hampton as the person he saw actively participating in the

sexual assault of Denise M. Despite this evidence, the court

has held that primarily because Hampton’s attorney failed

to interview several of Hampton’s friends who were also at

the concert, and possibly present their testimony, his repre-

sentation of Hampton at trial was constitutionally deficient.

However, even if we assume that Hampton’s attorney could

No. 01-4186 75

have performed better in his service, because of the strong

evidence of Hampton’s guilt it is not reasonably probable

that the outcome of the trial would have been different.

Therefore, because the Illinois Appellate Court reasonably

applied relevant federal law to the facts of this case, I re-

spectfully dissent and would reverse the district court’s

grant of habeas corpus.

In order to succeed on a claim of ineffective assistance of

counsel, a petitioner is required to demonstrate that his

counsel’s conduct fell below an objective standard of rea-

sonableness and that he was prejudiced by that sub-stan-

dard performance. Strickland v. Washington, 466 U.S. 668,

687 (1984). Strickland’s prejudice inquiry looks at whether

“counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Strickland,

466 U.S. at 687. This requires the defendant to show “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been differ-

ent.” Id. at 694. A reasonable probability, under Strickland,

“is one sufficient to undermine confidence in the outcome of

the trial.” Id. Additionally, under the AEDPA, a federal

habeas court must consider whether the state court’s

decision was an objectively unreasonable application of

Strickland regarding the prejudice prong. Roche v. Davis,

291 F.3d 473, 481 (7th Cir. 2002). Here, Hampton cannot

meet the Strickland requirements for demonstrating preju-

dice and therefore the Illinois state court’s application of

those requirements was not unreasonable.

Although Hampton’s attorney Rodgon failed to investigate

three of Hampton’s friends who may have testified that

Hampton did not participate in the crime, this does not

necessarily demonstrate prejudice. Even if we assume that

all three witnesses would have testified at trial, it is likely

that their testimony would have been conflicting, as demon-

strated by their conflicting affidavits, and could have been

more of a hindrance than a help.

76 No. 01-4186

Additionally, the court relies on the fact that because one

of Hampton’s codefendants, Ronald Mallory, was acquitted,

it demonstrates that further investigation into defense wit-

nesses may have produced a different result for Hampton.

Such reliance is misplaced. Ronald Mallory only had to

contend with the identification of one victim, whereas three

individuals—the two victims and one security guard—

clearly and concisely identified Hampton.

Finally, his attorney’s failure to present Hampton’s own

testimony to the jury or present evidence of his lack of gang

affiliation, after promising to do both in his opening state-

ment, similarly does not rise to the level of prejudice under

Strickland. The court does not hold that the testimony that

Hampton would have delivered in his defense could have

swayed the jury, but instead holds that Rodgon should have

explained why his client did not testify. But any explana-

tion could be complicated and risky, and might have simply

underscored the fact that he did not testify. The court also

does not mention that Rodgon did not need to present evi-

dence as to Hampton’s gang affiliation, despite his promise

in his opening statement, because the State did not present

any evidence with regard to Hampton’s gang affiliation.

Without such evidence, Rodgon did not have anything to

rebut. In fact, without the State’s evidence, it would have

been potentially damaging for Rodgon to broach the issue of

Hampton’s possible gang affiliation.

II

Therefore, because of the questionable prejudice caused

by Rodgon’s alleged errors and the strong evidence of his

guilt, Hampton has failed to demonstrate a reasonable

probability that, but for counsel’s unprofessional errors, the

result of his trial would have been different. These deficien-

cies similarly preclude a finding that the Illinois Appellate

Court’s dismissal of Hampton’s claims of ineffective assis-

No. 01-4186 77

tance of counsel was an objectively unreasonable applica-

tion of Strickland. I would, therefore, reverse and remand

to the district court with instructions to deny the petition

for habeas corpus, and I respectfully dissent.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-14-03