The opinion
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 21, 2005*
Decided July 21, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3649
Appeal from the United States
ANDRE THOMAS, District Court for the Northern
Petitioner-Appellant, District of Illinois, Eastern Division
v. No. 03 C 7754
NEDRA CHANDLER, Matthew F. Kennelly,
Respondent-Appellee. Judge.
ORDER
After a bench trial, Andre Thomas and two codefendants were convicted of
first degree murder and sentenced to a term of 30 years’ imprisonment. Convinced
that the state had not presented sufficient evidence to convict him and that his trial
counsel had been ineffective, Thomas pursued a direct appeal and state post-
conviction petition. When these efforts failed, Thomas filed the present habeas
corpus petition pursuant to 28 U.S.C. § 2254, arguing as relevant here that the
evidence unequivocally demonstrated that he had shot the victim, Clifford Ray, in
self defense and could not therefore be guilty of first degree murder and that his
trial attorneys were ineffective for advising him not to testify and refusing to call a
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-3649 Page 2
potentially exculpatory witness. The district court denied Thomas’s petition,
holding that the state courts had correctly applied federal law in concluding that
the evidence was sufficient to convict him of first degree murder and that counsel
had not been ineffective. Thomas appeals, and we affirm.
We draw the facts of this case from the Illinois appellate court’s resolution of
Thomas’s direct appeal, where we assume they were correctly stated. 28 U.S.C.
§ 2254(e)(1); Ashford v. Gilmore, 167 F.3d 1130, 1131 (7th Cir. 1999). In September
1995 Thomas, a governor of the Gangster Disciples, convened a meeting of some
gang members at his home. The subject of this meeting was the failure of some
members, Ray included, to pay their political fees in support of the organization. As
a governor, Thomas was responsible for making sure the Disciples’s laws and
policies were honored; gang members who violated rules or disrespected gang
leaders were subject to punishment in the form of “violations,” which include fines,
beatings, and even death. When Thomas asked Ray why he had not paid his fees,
he responded that he and several other members had decided not to pay because
they needed the money to take care of their children. Thomas’s assistant, Anthony
Adams, reprimanded Ray for his lack of respect, and Thomas himself left the room,
returning a few minutes later with a .380 semiautomatic handgun. Adams then
punched Ray on the right cheek and another gang member, Ronnie Sloan, hit him
with a baseball bat. At this point, Ray drew a gun and several gang members fled
the room.
None of the state’s witnesses actually saw Ray being shot. One witness,
Karrience Golden, observed Adams struggling with Ray for control of Ray’s gun;
during this battle the gun went off twice, injuring Golden and one other gang
member. Another witness, Lashon Coleman, ran and hid in a closet when he saw
Thomas with a gun. Coleman heard two shots followed in close succession by
another two or three shots. When he emerged from the closet, he saw that Ray and
two other gang members had been shot and that Thomas had left the room.
Thomas’s defense consisted of the testimony of a police officer who stated
that Golden had given him several different accounts of the shooting before arriving
at the version he presented at trial. Thomas also submitted stipulations from both
parties that Ray had twice previously been arrested for possession of a firearm, and
a stipulation that another witness at the scene, Terrence Brown, had previously
stated that Ray fired the gun wildly before he himself was shot. Thomas’s
attorneys convinced him not to testify, telling him that they believed the trial judge
found the state’s witnesses incredible, but would likely view his own testimony with
even more skepticism. Moreover, they noted, if Thomas testified the prosecution
would try to introduce more harmful evidence about his gang involvement.
Emphasizing their years of experience with criminal trials, Thomas’s attorneys told
him that the state had not met its burden of proof and that he would be acquitted.
No. 04-3649 Page 3
After brief closing arguments by both parties, the trial court found Thomas
(and his two codefendants, Adams and Ronnie Sloan) guilty of first degree murder
on an accountability theory. The court noted that, under Illinois law, a defendant
can be held accountable for a crime he knowingly helps another person to commit.
Because each of the defendants assisted in imposing “violations” on the victim, the
court found, they were all guilty of his murder, without regard to who actually
pulled the trigger.
In this appeal, we review the district court’s factual findings for clear error
and its legal rulings de novo. Bintz v. Bertrand, 403 F.3d 859, 865 (7th Cir. 2005).
To qualify for habeas relief, Thomas must show that the state court proceedings
adjudicating his claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Bintz, 403 F.3d at
865.
Thomas first argues that insufficient evidence supports his conviction for
first degree murder. He submits that the evidence clearly demonstrates that the
victim pulled a gun on him and that he shot him in self defense. When reviewing a
challenge to the sufficiency of the evidence, courts look to see whether the evidence,
viewed in the light most favorable to the prosecution, permits any reasonable trier
of fact to find the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). As relevant here, Illinois defines
first degree murder as a killing “without lawful justification” where the defendant
“either intends to kill or do great bodily harm to that individual or another, or
knows that [his] acts will cause death to that individual or another.” 720 ILL.
COMP. STAT. 5/9-1. If the defendant had an actual and reasonable belief that his
actions were necessary to defend himself or another against the imminent use of
unlawful force likely to cause death or great bodily harm, his actions are excused.
720 ILL. COMP. STAT. 5/7-1. A claim of self defense is not available, however, if the
defendant initially provoked the use of force against himself, unless he can show
that he exhausted every reasonable means to escape the imminent danger of great
bodily harm or that he withdrew from physical contact with the victim and
indicated a desire to terminate the use of force. 720 ILL. COMP. STAT. 5/7-4.
We cannot say that the state court’s decision was contrary to or an
unreasonable application of federal law. The state court correctly identified
Jackson as governing Thomas’s claim, and sufficient evidence supports Thomas’s
conviction. Thomas concedes that he shot Ray, and the evidence does not support a
claim of self defense, because it is clear that Thomas was the initial aggressor in the
conflict. Before Ray displayed a weapon or indeed made any gestures of aggression,
Thomas had already brought out his own gun and two of his associates had
physically assaulted Ray. Nor did Thomas make any attempt to retreat from Ray or
No. 04-3649 Page 4
terminate the use of force. Under these circumstances, Thomas was not entitled to
claim self defense, see People v. Sloan, 490 N.E.2d 1260, 1262-63 (Ill. 1986), and
the state courts were correct to conclude that his conviction was supported by
sufficient evidence.
Thomas next argues that the state court unreasonably concluded that he
received effective assistance of counsel. He claims that his trial attorneys were
ineffective because they advised him not to testify and did not call Dave Sloan (not
to be confused with codefendant Ronnie Sloan) as a witness. He argues that both
he and Dave Sloan would have testified that Ray pulled out his gun and began
shooting wildly before Thomas displayed his own weapon, and that this testimony
would have aided his claim of self defense. To establish that counsel was
constitutionally ineffective, a defendant must demonstrate both that counsel’s
performance was deficient and that there is a reasonable probability that, had
counsel acted appropriately, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 693-94 (1994).
The state court’s conclusion that Thomas’s attorneys performed adequately
was not contrary to or an unreasonable application of federal law. The state court
correctly identified Strickland as governing Thomas’s claim, and counsel did not
perform deficiently. An attorney is not obligated to call every witness the defendant
proffers if there are strategic reasons for not doing so, Foster v. Schomig, 223 F.3d
626, 631 (7th Cir. 2000), even if the rejected witness is the defendant himself,
United States v. Dyer, 784 F.2d 812, 817 (7th Cir. 1986). Thomas’s attorneys
identified good strategic reasons for keeping him off the stand; given his gang
history and prior inconsistent accounts of the shooting, his credibility may well
have been badly hurt on cross-examination. See Rodriguez v. United States, 286
F.3d 972, 983-84 (7th Cir. 2002). The attorneys’ alternate reason for suggesting
that Thomas not testify—their belief that the state had not met its burden of
proof—was similarly reasonable, even though this belief turned out to be incorrect.
See Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir. 1990), abrogation on other
grounds recognized by Willis v. Aiken, 8 F.3d 556, 563 (7th Cir. 1993). The record
also contains ample reason for rejecting the proffered testimony of Dave Sloan;
Sloan was the brother of Thomas’s codefendant and his affidavit mostly
corroborates, rather than contradicts, the version of events put forth by the
prosecution. Accordingly, the state courts correctly concluded that Thomas’s
attorneys did not act ineffectively.
AFFIRMED.