William Thompkins, J v. Randy Pfist

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2467

W ILLIE M ARSHALL T HOMPKINS, JR.,

Petitioner-Appellant,

v.

R ANDY P FISTER,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 6252—George W. Lindberg, Judge.

A RGUED N OVEMBER 1, 2011—D ECIDED O CTOBER 23, 2012

Before B AUER, F LAUM, and SYKES, Circuit Judges.

S YKES, Circuit Judge. On December 23, 1980, a patrolling

police officer found the body of Gerald Holton lying

facedown in a ditch in an unincorporated area of Cook

County, Illinois. Holton’s hands were tied with tele-

phone cord, and he was shot in the head. The officer

discovered the body of Arthur Sheppard nearby, hidden

in a clump of trees, similarly executed with his hands

bound. For about three months, investigators had no

2 No. 10-2467

leads in the murders. A break came when an informant

implicated Pamela Thompkins in the killings. Pamela

Thompkins was arrested and immediately confessed

her role in assisting her former brother-in-law and their

mutual friend in a robbery that got out of hand and

became a double murder.

The police then arrested Pamela’s former brother-in-law

Willie Thompkins, Jr., and he too agreed to talk after

receiving Miranda warnings. At some point during the

interrogation, he took a phone call from an attorney

who had been contacted by his wife, but continued to

talk to police without invoking his right to counsel.

The next morning Thompkins was taken to court for

a bond hearing. Before the hearing took place, he con-

fessed his involvement in the murders of Holton and

Sheppard. A jury convicted him of two counts of

murder based on his confession, the testimony of eye-

witnesses, and evidence from the scene of the crime.

He was sentenced to death. After an unsuccessful direct

appeal and more than a decade and a half of state

postconviction proceedings, the Governor of Illinois

commuted the sentences of all death-row inmates, and

Thompkins was resentenced to life. He exhausted

his remaining postconviction claims and then sought

federal habeas relief on multiple grounds. The district

court denied the petition.

We authorized an appeal on two issues: (1) whether

Thompkins’s confession should have been suppressed

because it was taken in violation of his Sixth Amend-

ment right to counsel; and (2) whether trial counsel was

No. 10-2467 3

constitutionally ineffective for failing to interview

several potential witnesses. On the first issue, the

Illinois Supreme Court held that the right to counsel

had not yet attached when Thompkins confessed, so

the trial court properly declined to suppress the confes-

sion. On the second, the court rejected the claim of inef-

fective assistance of counsel based on procedural

default and lack of factual support. On federal habeas

review, these decisions are entitled to substantial defer-

ence. Because the state supreme court did not unrea-

sonably determine the facts or unreasonably apply

federal law, see 28 U.S.C. § 2254(d), we affirm the denial

of habeas relief.

I. Background

Thompkins’s case was tried in Cook County Circuit

Court more than three decades ago in June 1982. See

People v. Thompkins (Thompkins I), 521 N.E.2d 38, 42-45 (Ill.

1988) (direct appeal); People v. Thompkins (Thompkins II),

641 N.E.2d 371, 374-76 (Ill. 1994) (first postconviction

appeal). The key witnesses for the prosecution were

Keith Culbreath and Sandra Douglas. Our account of

the facts is based primarily on their testimony as

described in the Illinois Supreme Court’s opinions in

Thompkins I and Thompkins II.

On December 22, 1980, Willie Thompkins and Ronnie

Moore were at Douglas’s home in Harvey, Illinois, in

southern Cook County, hatching a plan to rob a couple

of cocaine dealers. Culbreath stopped by around noon.

Thompkins took him into a bedroom and asked if he

4 No. 10-2467

wanted to make some money by helping him “stick-up”

a “couple guys.” He agreed to participate but told

Thompkins he wanted to go home first and get a ski

mask so he couldn’t be identified. Thompkins told

him, “don’t worry about it, [I’ll] take care of that.”

Culbreath saw two guns on the bed, got cold feet, and

left Douglas’s house.

Later that day, Thompkins, Moore, and Douglas drove

to the home of Thompkins’s former sister-in-law Pamela

Thompkins (“Pamela”). Pamela arranged for Gerald

Holton and Arthur Sheppard to come over on the

pretense of doing a cocaine deal. When Holton and

Sheppard arrived, the group moved to the basement

where there was a small kitchen and recreation area.

Holton and Sheppard produced a baggie of cocaine

and placed it on the kitchen table. Thompkins then

stood in the door frame, pointed a gun at the two men,

and demanded that they put their hands on the table.

They did as they were told. Moore and Thompkins

then searched Holton and Sheppard, taking a gun, their

wallets, and a beeper. Moore and Thompkins bound

the hostages’ hands with telephone cord and dragged

them by their feet from the kitchen to the recreation

area. Douglas retreated upstairs.

A few hours passed. At some point Pamela joined

Douglas upstairs. While the two women were talking,

Douglas heard a loud banging sound in the basement,

followed by two gunshots. Pamela blurted out that she

“told them not to do it here, she knew it wouldn’t go

according to plans.” Douglas ventured part way down

No. 10-2467 5

the stairs and got a glimpse of a body she assumed

was Holton’s because she recognized his shoes. She

then saw Moore, holding a knife, lead Sheppard—alive

but still bound—in the direction of the garage. She

watched as the others dragged Holton’s body to the

garage. Thompkins, Moore, and Pamela then drove off in

two separate cars, with Sheppard as their hostage and

Holton’s body in the trunk of one of the cars. Douglas

estimated that this took place at around 8 or 9 p.m.

About 35 minutes later, Douglas received a phone

call from Thompkins telling her to “clean up a little bit”

in the basement. She was so repulsed by the scene that

she couldn’t do it. The next day, however, she went

with Pamela and Thompkins to the home of Delmar

Watkins. Thompkins ordered Douglas to help Watkins

wash the blood from the trunk of the car where

Holton’s body had been. The following day, Douglas

stood guard while Watkins sprayed the trunk of the

car with water.

In the meantime on December 23, a patrol officer

found the bodies of Holton and Sheppard, hands

bounds and shot in the head, lying about 65 feet apart in

an unincorporated area of Cook County near Markham,

Illinois. Investigators initially had no leads. A break in

the investigation came on March 13, 1981, when Doris

Ferguson told the police about a December 23 phone

call she received from Pamela Thompkins asking for

advice about how to remove bloodstains from her base-

ment and garage. When Ferguson pressed for an explana-

tion of how the bloodstains got there, Pamela spilled

6 No. 10-2467

the entire story. Police used Ferguson’s statement to

obtain a search warrant for Pamela’s home. At the

scene the officers saw bloodstains in the basement

and arrested Pamela, who gave a detailed confession

describing the entire sequence of events, including

Willie Thompkins’s involvement in the murders.

Based on Pamela’s statement, police arrested Thompkins

on March 17, 1981. That same day, a complaint for a

preliminary examination was filed against him. Late that

afternoon, Assistant States Attorney Paul Perry met with

Thompkins, gave him Miranda warnings, and asked if

he was willing to talk. Thompkins said he understood

his rights and agreed to talk to Perry. At some point

during the interrogation, an officer interrupted to say

that Attorney George Howard had called asking to

speak to Thompkins. Perry stopped the interview and

Thompkins left the room to return the attorney’s call.

Thompkins’s wife, Barbara, had contacted Howard to

ask for his help, but Howard later testified that he

was never actually retained.

When Thompkins returned to the interview room,

Perry asked him if he “still want[ed] to talk to us after

talking to George Howard?” Thompkins said that he

did. Perry reminded him of his right to have an attorney

present during the interview. Thompkins replied: “No,

that’s all right; I’ll talk to you now.” The interview re-

sumed, but Thompkins did not make any inculpatory

statements on March 17.

The next morning, March 18, the police took Thompkins

to court for a bond hearing and placed him in a lockup

No. 10-2467 7

near the courtroom where the hearing would be held.

Thompkins and Pamela were to appear in court at the

same time. The presiding judge called and passed the

case twice, apparently awaiting the arrival of a private

attorney for Thompkins; Pamela was represented by a

public defender. On the third go-round, Thompkins

consented to representation by Pamela’s public defender

for the limited purpose of the bond hearing. On this

understanding, the judge went ahead with the hearing

that day, though the evidence conflicts about whether

it took place in the late morning or early afternoon.

At some point during the morning court session, In-

vestigators Jim Houlihan and Ronald Bennett consulted

with ASA Perry about whether they could interview

Thompkins. Perry authorized the interrogation. After

fresh Miranda warnings, Thompkins confessed his in-

volvement in the murders. He agreed to repeat his state-

ment to Perry, so Houlihan left the lockup to summon

the prosecutor. Thompkins maintains in his habeas

petition that the interrogation occurred after the bond

hearing. However, Perry testified at the suppression

hearing that he saw the investigators enter the lockup

sometime between 11:30 a.m. and 1 p.m., before the

bond hearing was held. See Thompkins I, 521 N.E.2d at 50.

It is undisputed that when Perry came back to the

lockup, Thompkins was returning from a separate

holding area where inmates could make phone calls.

Thompkins told Perry that he had “just spoke[n] to his

lawyer on the phone” and no longer wanted to talk.

Because Pamela’s confession contained details about

Thompkins’s involvement in the murders, the two de-

8 No. 10-2467

fendants were tried separately.1 Thompkins moved

to suppress his confession, arguing that it was taken in

violation of his Sixth Amendment right to counsel.2

Investigators Houlihan and Bennett, ASA Perry, and

Attorney Howard testified at the suppression hearing

for the prosecution, and Thompkins testified on his

own behalf. The trial judge denied the motion.

Thompkins was convicted by a jury of two counts

of murder and related charges based largely on his con-

fession and testimony from Douglas and Culbreath,

corroborated by evidence obtained in the search of

Pamela’s home. The capital-punishment phase of the

case was tried to the court, and Thompkins was

sentenced to death.

On direct appeal the Illinois Supreme Court affirmed

the convictions and sentence, see Thompkins I, 521

N.E.2d at 63, and extensive postconviction proceedings

followed. The state supreme court rejected most of

1

Pamela Thompkins was convicted of conspiracy to commit

murder and armed robbery in a bench trial in which the

parties stipulated that she participated in the crimes because

Willie Thompkins and Ronnie Moore threatened to kill her

and her children. She was sentenced to four years in prison.

Moore remained at large until 1984 and was eventually con-

victed of murder and related offenses and sentenced to life.

2

He also sought suppression on Fifth Amendment grounds,

alleging a violation of his rights under Miranda v. Arizona, 384

U.S. 436 (1966). Our certificate of appealability covers only

the Sixth Amendment challenge to the admission of his con-

fession.

No. 10-2467 9

Thompkins’s postconviction claims, but ordered a new

sentencing hearing. See Thompkins II, 641 N.E.2d at 395.

The trial court reimposed the death sentence, and the

case returned to the state supreme court, which twice

remanded for further proceedings regarding the sen-

tence. See People v. Thompkins (Thompkins III), 690

N.E.2d 984 (Ill. 1998); People v. Thompkins (Thompkins IV ),

732 N.E.2d 553 (Ill. 2000).

Before the remand proceedings ordered in Thompkins IV

were concluded, the Governor of Illinois commuted

the sentences of all prisoners on death row, and

Thompkins was resentenced to two concurrent terms of

life in prison. After exhausting his remaining sentencing

claims in the state courts, see People v. Thompkins

(Thompkins V ), 876 N.E.2d 1088 (Ill. 2007), Thompkins

timely petitioned for federal habeas relief under § 2254

alleging multiple grounds for relief. The district court

denied the petition, and this appeal followed.

II. Discussion

Federal habeas relief from a state-court criminal judg-

ment “is not easy to come by,” Woods v. McBride, 430

F.3d 813, 816 (7th Cir. 2005), because the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”)

requires us to “defer to a great extent to the decisions of

the state courts,” Ben-Yisrayl v. Buss, 540 F.3d 542, 546

(7th Cir. 2008). A federal court may not grant a writ

of habeas corpus unless the challenged state-court adjudi-

cation “resulted in a decision that was contrary to, or

10 No. 10-2467

involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court

of the United States,” or was based on “an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (d)(2). Accordingly, we will not disturb a

state court’s application of federal law “unless it is ‘both

incorrect and unreasonable.’ ” Carter v. Thompson, 690

F.3d 837, 843 (7th Cir. 2012) (quoting Etherly v. Davis,

619 F.3d 654, 660 (7th Cir. 2010)). “Unreasonable” in this

context “ ‘means something like lying well outside the

boundaries of permissible differences of opinion.’ ” West

v. Symdon, 689 F.3d 749, 751 (7th Cir. 2012) (quoting

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

state court’s factual determinations are entitled to a

presumption of correctness, and the petitioner has the

burden of overcoming this presumption by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1);

McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011).

We review the district court’s denial of a § 2254 petition

de novo. Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010).

Our review is limited to two questions on which

we granted a certificate of appealability: (1) whether

Thompkins’s confession was obtained in violation of

his Sixth Amendment right to counsel and thus should

have been suppressed; and (2) whether trial counsel’s

failure to interview and present the testimony of several

potential witnesses amounted to constitutionally inef-

fective assistance of counsel. The state supreme court

decided the first issue in Thompkins I and declined to

revisit this ruling in Thompkins II. The court decided

No. 10-2467 11

the second issue in Thompkins II, the first of the

postconviction appeals. Thompkins III, IV, and V were

later postconviction appeals on sentencing issues not

relevant here.

A. Thompkins’s Confession

It is well-established that the Sixth Amendment right

of an accused person “to have the Assistance of Counsel

for his defence,” U.S. C ONST. amend. VI, attaches at

“the initiation of adversary judicial criminal proceed-

ings—whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment,” Kirby

v. Illinois, 406 U.S. 682, 689 (1972). It is likewise settled

law that an appearance before a judicial officer in

which the accused is advised of the charges against

him constitutes the initiation of “adversary judicial crimi-

nal proceedings” for Sixth Amendment purposes. See

Rothgery v. Gillespie County, Tex., 554 U.S. 191, 198-99

(2008); Brewer v. Williams, 430 U.S. 387, 399 (1977). Every-

one agrees that Thompkins’s bond hearing on March 18,

1981—the day after his arrest—qualifies as the “initiation

of adversary judicial proceedings” against him for

Sixth Amendment purposes. Once the Sixth Amendment

right to counsel has attached, government agents may

not question an accused without his counsel present

unless he consents to be questioned without his counsel.

See Montejo v. Louisiana, 556 U.S. 778, 786 (2009).

In Thompkins I the Illinois Supreme Court held that

Thompkins’s right to counsel had not yet attached at

12 No. 10-2467

the time he confessed, so the trial judge properly denied

the suppression motion. 521 N.E.2d at 50-52. In so

holding, the court identified the correct legal standard,

citing the Supreme Court’s decision in Kirby, and also

Moran v. Burbine, 475 U.S. 412 (1986); Maine v. Moulton, 474

U.S. 159 (1985); United States v. Gouveia, 467 U.S. 180 (1984);

and Brewer, 430 U.S. at 399. See Thompkins I, 521 N.E.2d

at 51. The court then rejected Thompkins’s argument

that the right to counsel attached immediately after his

arrest, when the complaint for preliminary examination

was filed on March 17. Id. The court held that under

Kirby Thompkins’s right to counsel attached at the bond

hearing, and because Thompkins confessed to Houlihan

and Bennett before the hearing was held, his confession

was properly admitted against him at trial.3 Id. The

court declined to revisit this ruling in Thompkins II,

the first postconviction appeal, because the affidavit

Thompkins submitted in support of his postconviction

motion contradicted his testimony at the suppression

hearing. 641 N.E.2d at 384.

Thompkins no longer argues, as he did in the state-

court proceedings, that his Sixth Amendment right to

counsel attached when the complaint for a preliminary

3

The Illinois Supreme Court also rejected Thompkins’s claim

that the confession should have been suppressed because it

was obtained in violation of his Fifth Amendment rights.

People v. Thompkins (Thompkins I ), 521 N.E.2d 38, 51-52 (Ill. 1988)

(affirming the trial court’s ruling that no violation of Miranda

had occurred). As we have noted, this issue is not within

the scope of our certificate of appealability.

No. 10-2467 13

examination was filed. The concession is prudent.

Under Illinois law a complaint for a preliminary exam-

ination does not initiate formal felony proceedings. See

725 ILL. C OMP. S TAT. 5/111-2(a) (“All prosecutions

of felonies shall be by information or by indictment.”);

People v. Garrett, 688 N.E.2d 614, 618-19 (Ill. 1997) (holding

that a complaint for preliminary examination is not a

formal charge in a felony case); People v. Mann, 794

N.E.2d 425, 431-32 (Ill. App. Ct. 2003) (observing that “a

complaint alleging a felony initiates no prosecution

whatsoever”). Indeed, the Supreme Court has noted that

in Illinois it is the preliminary hearing itself, not the

filing of a complaint for preliminary examination, that

initiates adversary judicial proceedings in felony cases.

See Moore v. Illinois, 434 U.S. 220, 228-29 (1977) (noting

that under Illinois law adversary felony proceedings

are initiated not at the time a complaint is filed but at

the subsequent preliminary hearing); Edwards v. Arizona,

451 U.S. 477, 480 n.7 (1981) (repeating this observation

from Moore).

Accepting the error in his prior argument, Thompkins

has shifted focus and now attacks the state court’s

finding that he confessed before the bond hearing. See

Thompkins I, 521 N.E.2d at 50 (describing the chronology

of events and finding that the confession was given

“immediately prior to defendant’s bond hearing”). He

argues that the evidence “plainly demonstrates” that

Houlihan and Bennett questioned him after the bond

hearing. This is a new factual claim, and it is arguably

procedurally defaulted because Thompkins did not

adequately develop it in the state court. See Suh v. Pierce,

14 No. 10-2467

630 F.3d 685, 690 (7th Cir. 2011); Stevens v. McBride, 489

F.3d 883, 894 (7th Cir. 2007). On direct appeal he argued

that his right to counsel attached when the complaint

was filed on March 17 and that he did not validly waive

his right to counsel after that point. See Thompkins I, 521

N.E.2d at 50-52. Later, in postconviction proceedings,

he submitted an affidavit claiming that the police

refused his request to call Attorney Howard, which

contradicted his testimony at the suppression hearing.

See Thompkins II, 641 N.E.2d at 384. He first raised the

claim about the chronology of events in his § 2254 petition.

Procedural default aside, the state court’s factual find-

ings are entitled to a presumption of correctness, and

Thompkins has the burden to overcome the presump-

tion by clear and convincing evidence. He has not done

so. It is true that the record does not establish the

precise time the bond hearing occurred. The transcript

from the hearing does not indicate when the hearing

started and ended, although at several points the

presiding judge said “this morning” when referring to the

warnings he was then providing to both defendants.

Thompkins testified at the suppression hearing that

Houlihan and Bennett questioned him in the afternoon.

On the other hand, ASA Perry testified that Houlihan

and Bennett interviewed Thompkins before the bond

hearing, and although he could not say precisely what

time the interview occurred, he estimated that he saw

the investigators enter the lockup sometime between

11:30 a.m. and 1 p.m. Based on Perry’s testimony, the

state supreme court found that Thompkins confessed

“immediately prior to [the] bond hearing.” Thompkins I,

521 N.E.2d at 50.

No. 10-2467 15

In evidentiary conflicts like this, our standard of

review requires that we defer to the state supreme

court’s decision. The state court was entitled to accept

Perry’s testimony about the chronology of events.

Thompkins has not rebutted the AEDPA presumption

that the state court’s fact-finding is correct; he has

simply pointed to evidence supporting his version of the

sequence and timing of events. Nor has he carried

his burden of demonstrating that the state court’s deter-

mination of the facts was unreasonable; identifying

conflicting evidence is not enough. Accordingly, the

district court properly denied habeas relief on the

Sixth Amendment right-to-counsel claim.

B. Ineffective Assistance of Counsel

Thompkins also contends that his trial counsel was

constitutionally ineffective for failing to interview

several witnesses who could have offered exculpatory

testimony. Under the familiar test established in

Strickland v. Washington, a claim of ineffective assistance

of counsel requires a showing that counsel “made errors

so serious that counsel was not functioning as the ‘coun-

sel’ guaranteed the defendant by the Sixth Amend-

ment” and that the “deficient performance prejudiced

the defense.” 466 U.S. 669, 687 (1984). Judicial scrutiny

of counsel’s performance is “highly deferential,” id. at

689, and under AEDPA we defer to the state court’s

application of Strickland on federal habeas review,

meaning that our evaluation of counsel’s performance

is “doubly deferential,” Knowles v. Mirzayance, 129 S. Ct.

1411, 1420 (2009).

16 No. 10-2467

Thompkins’s Strickland claim rests on an alleged

failure to investigate potential witnesses. Trial counsel

“has a duty to make reasonable investigations or to

make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691.

“In any ineffectiveness case, a particular decision not

to investigate must be directly assessed for reason-

ableness in all the circumstances, applying a heavy mea-

sure of deference to counsel’s judgments.” Id. Thompkins

argues that his trial counsel should have interviewed

and presented testimony from his wife, Barbara, as well

as Karen Hayes and Tina Pitts—all of whom, he says,

would have provided an alibi. He also claims his counsel

was ineffective for not interviewing Pamela Thompkins.

Regarding the claimed alibi, Thompkins contends

that Hayes and Pitts would have testified that he was

with them during the day on December 22, contradicting

the testimony of Douglas and Culbreath. He says his

wife, Barbara, would have testified that he was home

with her at 9 p.m. on December 22, around the time of

the murders. It is not clear what testimony Pamela

would have provided beyond what she told police in

her detailed confession, which inculpated Thompkins.

The Illinois Supreme Court rejected Thompkins’s Strick-

land claim as to Hayes and Pitts on procedural grounds

because he did not submit affidavits from them with

his postconviction petition, as required by Illinois law.

Thompkins II, 641 N.E.2d at 378; see also 725 ILL. C OMP.

S TAT. 5/122-2 (1964). This is an independent and

adequate state ground for rejecting this part of the Strick-

No. 10-2467 17

land claim, which bars review in federal court unless

Thompkins can show cause and prejudice or that a mis-

carriage of justice would result if we do not review

the claim. See Cone v. Bell, 556 U.S. 449, 465-66 (2009);

Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). “A

state law ground is independent when the court

actually relied on the procedural bar as an independent

basis for its disposition of the case.” Kaczmarek v.

Rednour, 627 F.3d 586, 592 (7th Cir. 2010). “A state

law ground is adequate when it is a firmly established

and regularly followed state practice at the time it

is applied.” Id.

The state supreme court plainly relied on the affidavit

rule to bar Thompkins’s claim that his counsel was inef-

fective for not interviewing Hayes and Pitts. See Thompkins

II, 641 N.E.2d at 378 (“The defendant has failed to

submit affidavits from Pitts and Hayes themselves, how-

ever, and thus we are precluded from considering

this issue further.”). Moreover, the affidavit rule is estab-

lished by state statute, 725 ILL. C OMP. S TAT. 5/122-2, and

regularly followed by Illinois courts, see, e.g., People v.

Guest, 655 N.E.2d 873, 883 (Ill. 1995).4 Thompkins must

4

Although the Illinois Supreme Court has suggested that

noncompliance with the affidavit rule might be forgiven in

certain circumstances, People v. Reeves, 107 N.E.2d 861, 864 (Ill.

1952), that does not mean that the rule is not regularly

followed and is therefore inadequate, Promotor v. Pollard, 628

F.3d 878, 886-87 (7th Cir. 2010). Discretionary state procedural

(continued...)

18 No. 10-2467

therefore establish cause for and prejudice from the

procedural default.5 He has a steep hill to climb:

Cause for a default is ordinarily established by show-

ing that some type of “external impediment” pre-

vented the petitioner from presenting his claim.

Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004).

Prejudice is established by showing that the violation

of the petitioner’s federal rights “worked to his

actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions.” Id.

Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010).

Thompkins argues that Hayes and Pitts were impossible

to find after the trial and his inability to locate them

amounted to an “external impediment” preventing his

compliance with the affidavit rule. But the rule requires

the petitioner to include either affidavits from the

witnesses who will support the petitioner’s postconvic-

tion claims or a statement explaining why affidavits

are unavailable. See 725 ILL. C OMP. S TAT. 5/122-2.

Thompkins’s petition for postconviction relief included

neither; he did not submit affidavits from Hayes and

4

(...continued)

rules may still constitute independent and adequate state

grounds. Beard v. Kindler, 130 S. Ct. 612, 618 (2009).

5

Thompkins does not argue that without federal habeas

review, he will suffer a fundamental miscarriage of justice, so

we do not address this ground for relief from the procedural

default.

No. 10-2467 19

Pitts, nor did he explain why affidavits from them

were unavailable.

Even assuming that Thompkins could establish cause

for the procedural default, he cannot establish prejudice.

The only indication of the testimony Hayes and Pitts

would have given is Thompkins’s own affidavit

asserting that they would have provided an alibi. This

falls far short of establishing prejudice. A Strickland

claim based on counsel’s failure to investigate a

potential witness requires a specific, affirmative

showing of what the missing witness’s testimony

would be, and this typically requires at least an affidavit

from the overlooked witness. See Wright v. Gramley,

125 F.3d 1038, 1044 (7th Cir. 1997); United States ex rel.

McCall v. O’Grady, 908 F.2d 170, 173 (7th Cir. 1990);

United States ex rel. Cross v. DeRobertis, 811 F.2d 1008,

1016 (7th Cir. 1987). Thompkins’s own affidavit is

not enough.

Thompkins also challenges the state supreme court’s

rejection of his claim that counsel was ineffective for

failing to interview Pamela. On this aspect of the

Strickland claim, the state supreme court began by

noting that counsel had successfully argued for

severance because Pamela’s defense was antagonistic

to Thompkins’s; based on the contents of her confession,

her testimony would have been harmful rather than

helpful to his case. See Thompkins II, 641 N.E.2d at 377-

78. The court easily rejected Thompkins’s evidence to

the contrary; he relied on an unauthenticated hand-

written letter dated January 26, 1983, in which

Pamela purported to recant her statement implicating

20 No. 10-2467

Thompkins in the murders. Id. The court said the

letter was of “doubtful utility” because it was dated

six months after Thompkins’s trial and Pamela had “re-

canted the recantation” the very next day, on January 27,

in a stipulation at the beginning of her own trial. Id.

Under these circumstances, the court did “not believe

that counsel may be faulted” for failing to “seriously

consider the prospect of calling Pamela as a

defense witness.” Id. at 377. We, in turn, can find no

fault with the state court’s decision on this point. To

the contrary, it was eminently reasonable, and

Thompkins has given us no good reason to question it.

That brings us to Barbara, and whether trial counsel

was ineffective for not calling her as an alibi witness.

Thompkins claims she would have testified that he

was home with her sometime around 9 p.m. on

December 22, 1980. Barbara stated in her affidavit that

she was interviewed by Thompkins’s defense attorney

and told him she “was willing to testify.” She also said

she told counsel that “because I was a Jehovah’s wit-

ness, I could not lie,” and the interview proceeded

no further. Barbara explained in her affidavit that this

statement was meant to reinforce her religious beliefs,

not to suggest that she thought she “would have to lie

about anything to testify for Willie.” She said if counsel

had questioned her further, she would have told him

that “Willie must have been home after 9:00 in the

evening on December 22, 1980, because that was when

I would get up from my nap to go to work, and Willie

drove me to work that night.”

No. 10-2467 21

Setting aside the question of whether trial counsel

misinterpreted Barbara’s reference to her religious

beliefs, the state supreme court quite reasonably con-

cluded that it “should defer to counsel’s decision not

to present [Barbara’s] testimony.” Id. at 378. Her affidavit

makes it clear that she could not provide a clean alibi.

She claimed only that Thompkins “must have been

home after 9:00 in the evening on December 22” because

that was when she ordinarily got up from her nap to go

to work, and he drove her to work that evening. That

is not incompatible with Douglas’s testimony that the

murders occurred around 8 or 9 p.m. Barbara’s affidavit

was at best equivocal and not inconsistent with

Douglas’s testimony. It does not call into question

the reasonableness of the state supreme court’s deci-

sion not to fault counsel for not presenting her as a

witness. Indeed, Strickland requires this kind of

deference to counsel’s strategic decisions. When con-

sidered through the lens of our doubly deferential

standard of review, Barbara’s affidavit does not come

close to establishing that the state supreme court unrea-

sonably applied Strickland.

A FFIRMED.

10-23-12