Full opinion text
CORRECTED MEMORANDUM OPINION AND ORDER MATTHEW F. KENNELLY, District Judge. Floyd Richardson was tried and convicted in 1984 of the April 1980 armed robbery and murder of George Vrabel, a clerk at a grocery store on the south side of Chicago. The trial judge sentenced Richardson to death after he waived his right to a jury at the penalty phase of his trial. In 2003, Illinois Governor George Ryan commuted Richardson’s sentence to a sentence of life without parole. In February 2004, this Court granted Richardson’s petition for a writ of habeas corpus on the ground that his conviction was tainted by prosecutorial misconduct at his trial. On appeal, the Court of Appeals reversed, finding that Richardson had not been prejudiced by the alleged misconduct. Richardson v. Briley, 401 F.3d 794 (7th Cir.2005). In August 2006, the Court of Appeals remanded the case to this Court for consideration of the remaining issues in Richardson’s petition. Richardson has four remaining claims. First, he alleges that he was denied due process of law because his conviction was based on identification testimony that he contends was produced by suggestive procedures. Second, he contends that the prosecution systematically struck prospective black jurors in violation of his right to equal protection of the law, as set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a case decided when Richardson’s conviction and death sentence were on direct appeal. Third, Richardson alleges that he was denied due process by the prosecution’s introduction of evidence of uncharged crimes. Fourth, Richardson contends he was denied effective assistance of counsel at the penalty phase of his case. The Court previously ruled that Richardson was entitled to expansion of the record and an evidentiary hearing on his second claim, concerning the prosecution’s use of its peremptory challenges against black jurors. Richardson v. McCann, 653 F.Supp.2d 831 (N.D.Ill.2008). The Court concluded the evidentiary hearing in May 2009. Post-hearing briefing was completed in June 2009. The Court acknowledges that it has had the matter under advisement for an inordinately long period since that date. The Court deals with Richardson’s nonBatson claims first and his Batson claim last. Facts The Court takes the facts underlying Richardson’s conviction from the Illinois Supreme Court’s decision in his direct appeal. People v. Richardson, 123 Ill.2d 322, 123 Ill.Dec. 908, 528 N.E.2d 612 (1988). Shirley Bowden, a clerk at Twin Foods and Liquors, located on the south side of Chicago, testified that around 10:00 p.m. on the night of April 1, 1980, she was working at the store, which was empty except for employees and one customer. She saw a second man walk past her toward the liquor department, where Vrabel worked. She then heard a shot followed by a warning that “This is a stickup.” Bowden and another employee, Bonnie Williams, testified that they saw the man run past them and out the store, though they ducked behind a counter when he approached. The police were called, and Vrabel was found on the floor, bleeding. He was pronounced dead on arrival at a local hospital. Williams testified that in the summer of 1982, she selected Richardson’s photo from a group of black-and-white photos the police showed her. Bowden was never called to view a lineup. At trial, both Williams and Bowden testified they had seen Richardson in the neighborhood before April 1, 1980, and both identified him as the shooter. Ernest Warner, a firearms examiner, testified that in his opinion, bullets recovered from Vrabel’s body and from a wall at Twin Foods bore the same class and individual characteristics as a bullet recovered from Thomas Fitzpatrick, who was shot in an armed robbery on April 5, 1980. Fitzpatrick testified that on that night, he was working at a tavern located about a mile from Twin Foods. A man entered, announced a stickup, and jumped over the bar, shooting Fitzpatrick when he tried to run. While Fitzpatrick was lying on his back, the man stood over him for about fifteen to twenty seconds and asked where the rest of the money was and then departed when Fitzpatrick said there was no more money. Fitzpatrick testified that in May 1982, he tentatively identified Richardson from a set of photographs and then positively identified him after viewing a lineup. He testified in court that Richardson was his assailant. Ray Slagle, a customer in the tavern, also identified Richardson as the shooter. He testified that he had selected Richardson’s picture from a set of photographs shown to him in September 1982 and that he had identified Richardson in a lineup held in October 1982. James Sanders, a Chicago police sergeant, testified that on May 4, 1982, he received a radio broadcast of a robbery in progress at a location a little less than a mile from Twin Foods. He heard a description of the robber over his radio. He then observed a man in the vicinity of the crime scene matching the description and took him into custody. Sanders identified Richardson as the man he had taken into custody. Joseph Dijiacomo, a Chicago police detective, testified about his preparation of two photographic arrays of man roughly fitting the description of the Twin Foods suspect, one set in black-and-white and one in color. John Soleeki, also a Chicago police detective, testified that both Fitzpatrick and Slagle had identified a photo of Richardson from the set of black-and-white photos, but that both requested to see a lineup so they could be absolutely certain. Soleeki also testified that both Fitzpatrick and Slagle positively identified Richardson in the lineup. A police composite photo prepared from descriptions by witnesses to the Twin Foods shooting depicted the assailant with a full beard. Slagle, a witness to the tavern shooting, had described the shooter at the tavern as having a scraggly beard. Richardson’s mother, Arkonia Richardson, testified as a defense witness. She stated that Richardson had never had a full beard, but only a moustache and a goatee. Discussion A. Standard of review The Illinois Supreme Court decided three of Richardson’s four remaining claims on their merits. It concluded that the Batson claim was procedurally defaulted and thus did not address that claim on its merits. A person convicted in state-court. may obtain a writ of habeas corpus on a claim that was adjudicated on its merits in state court only if the state court’s adjudication of the 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; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2). The “contrary to” standard of section 2254(d)(1) is met if, for example, “the state court applies a rule that contradicts the governing law set forth” by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The “unreasonable application” standard is met “if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of petitioner’s case,” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), or “unreasonably refuses to extend a principle to a context in which it should apply.” Griffin v. Pierce, 622 F.3d 831, 841 (7th Cir.2010) (internal quotation marks and citation omitted). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis in original). The state court must have applied federal law in an objectively unreasonable way. Renico v. Lett, — U.S. -, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). Finally, a decision involves an “unreasonable determination of the facts” if the petitioner rebuts the presumption of correctness that applies to state court fact-finding by clear and convincing evidence. See Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). This latter standard “is demanding but not insatiable.... [D]eference does not by definition preclude relief.” Id. (internal quotation marks and citation omitted). B. Other crimes evidence As noted earlier, at Richardson’s trial for the April 1, 1980 robbery and murder, the prosecution introduced evidence regarding an April 5, 1980 robbery and shooting of Thomas Fitzpatrick and a May 4, 1982 robbery. The trial judge ruled that the evidence of the April 5 robbery was admissible for the purpose of proving the identity of the April 1 offender and that the May 4 robbery was admissible to explain the circumstances of Richardson’s arrest. Richardson contends that the admission of this evidence rendered his trial unfair by exposing him to the risk of conviction because he “was a generally bad person and, specifically, that he was a habitual armed robber,” Pet.’s Reply at 51, in other words, based on propensity to commit crime. On direct appeal, the Illinois Supreme Court acknowledged the dangers inherent in the admission of other-crimes evidence. People v. Richardson, 123 Ill.2d 322, 338-39, 123 Ill.Dec. 908, 528 N.E.2d 612, 617 (1988) (“Richardson /”). The court concluded, however, that evidence regarding the April 5 shooting “was highly relevant and admissible.” Id. at 339, 123 Ill.Dec. 908, 528 N.E.2d at 617. Specifically, the court stated that The evidence of the April 5, 1980, shooting clearly tended to identify defendant as the perpetrator of the April 1, 1980, murder, in light of the evidentiary links between the two crimes. Expert testimony at trial established that the same gun fired the bullet which killed Vrabel and the bullet which wounded Fitzpatrick. Further, the testimony defendant sought to exclude included eyewitnesses to the April 5 shooting identifying defendant as the gunman. Testimony that defendant was the man holding that particular weapon during a solo armed robbery on April 5 is clearly relevant to the determination of whether he was the man holding the weapon on April 1, when it was used to kill George Vrabel. Id. at 339-40, 123 Ill.Dec. 908, 528 N.E.2d at 617. The court also rejected Richardson’s contention that he was unfairly prejudiced by the level of detail presented regarding the April 5 shooting. Id. at 341-42, 123 Ill.Dec. 908, 528 N.E.2d at 618. As for the May 4 robbery, the Illinois Supreme Court agreed with Richardson that there was “no justifiable basis for its admission.” Id. at 342, 123 Ill.Dec. 908, 528 N.E.2d at 618. The court concluded, however, that the trial court’s error was harmless. It stated that [t]he record before us confirms that the testimony relating to defendant’s 1982 arrest, albeit irrelevant, disclosed only the fact that police had apprehended defendant as a person matching the description of a suspect sought in connection with an armed robbery. There was no “extensive discussion” of the collateral crime .... Further, ... there was positive and credible identification evidence from several witnesses implicating defendant in the murder of George Vrabel. Id. at 343-44, 123 Ill.Dec. 908, 528 N.E.2d at 619. Because the Illinois Supreme Court dealt with the claim on its merits, Richardson is entitled to relief only if that court’s decision was contrary to United States Supreme Court precedent or unreasonably applied it (Richardson does not argue that the state supreme court’s decision involved an unreasonable application of the facts in light of the evidence presented). The state court’s decision was not contrary to United States Supreme Court precedent. No Supreme Court case holds that admission of other-crimes evidence, as such, violates the constitutional rights of an accused person even if it is admitted to show the propensity of the accused to commit crimes. Indeed, the Supreme Court has expressly reserved judgment on this question. See Estelle v. McGuire, 502 U.S. 62, 75 n. 5, 112 S.Ct. 475, 116 L.Ed.2d 885 (1991) (“Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime.”). In Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), the Supreme Court, in discussing “[cjourts that follow the common-law tradition,” stated that such courts “almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt.” Id. at 475, 69 S.Ct. 213. But this involved a description of the law of evidence, not a federal constitutional principle. See, e.g., United States v. Rogers, 587 F.3d 816, 821 (7th Cir.2009) (citing Michelson for the proposition that “common-law, courts traditionally considered the propensity inference relevant but improper” and noting that “[Federal] Rule [of Evidence] 404(b) explicitly adopts this common-law tradition.”). See also Bennett v. Bartley, No. 07 C 1975, 2008 WL 4866169, at *4 (N.D.Ill. June 23, 2008) (recognizing that “the Supreme Court has not established a clear precedent regarding” the due process implications of “permitting the use of past crimes evidence to show propensity”); United States ex rel. Brady v. Hardy, No. 10 C 2098, 2011 WL 291058, at *12-13 (N.D.Ill. Jan. 27, 2011). As a result, the only federal constitutional principle on which Richardson may rely “is a catch-all sense of due process, [a claim that] almost always fails.” See Hammer v. Karlen, 342 F.3d 807, 811 n. 3 (7th Cir.2003) (internal quotation marks and citation omitted). As a matter of due process, a state court evidentiary rulings are a basis for federal habeas corpus relief only if the rulings “ ‘so infused the trial with unfairness as to deny due process of law.’ ” Estelle v. McGuire, 502 U.S. at 75, 112 S.Ct. 475 (quoting Lisenba v. California, 314 U.S. 219, 228, 62 S.Ct. 280, 86 L.Ed. 166 (1941)). Though the Illinois Supreme Court did not apply this standard in so many words, its conclusion that the evidence of the April 5 shooting was highly relevant and that the level of detail was not unfairly prejudicial amounts to a finding that its admission was not unfair. The same is true of its conclusion that the admission of the evidence about the May 4 robbery did not result in “justice [being] denied” and that it was “unlikely to have contaminated the jury.” Richardson I, 123 Ill.2d at 343-44, 123 Ill.Dec. 908, 528 N.E.2d at 619. Neither of these conclusions amounted to an unreasonable application of federal due process/ fair trial requirements. A state court decision that does not cite federal precedent is nonetheless consistent with U.S. Supreme Court decisional law “so long as neither the reasoning nor the result of the state-court decision contradicts” the Supreme Court’s decisions. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Reasonable jurists could agree that admission of the evidence regarding the April 5 shooting and the very limited evidence about the May 4 robbery did not expose Richardson to an unfair risk that his guilt would’ be determined based on inappropriate or irrelevant factors. In particular, reasonable jurists could conclude that the evidence about the April 5 shooting was highly relevant on the question of Richardson’s identity as the shooter of George Vrabel. This was so given the testimony that the bullets recovered from the two crime scenes shared general and specific characteristics, indicating that the same gun was used in both shootings, and the fact that Slagle and Fitzpatrick both positively identified Richardson as the shooter in the April 5 incident. The testimony about the May 4 robbery was irrelevant, as the Illinois Supreme Court concluded, but reasonable jurists could conclude that the brief evidence about the radio call and the apprehension of Richardson did not unfairly prejudice him. In addition, as the Illinois Supreme Court noted, the jury was instructed that it could consider the evidence on these other crimes solely “on the issues of defendant’s identification and the manner in which he came to police attention in the case.” Richardson, 123 Ill.2d at 344, 123 Ill.Dec. 908, 528 N.E.2d at 619. Given these factors, the state court’s conclusion that the admission of this evidence did not deny Richardson due process did not amount to unreasonable application of federal constitutional standards. C. Identification testimony Richardson argued on direct appeal, and he contends in his habeas corpus petition, that the police used unduly suggestive procedures to obtain identifications of him from eyewitnesses to the April 1 and April 5 shootings and that this rendered his trial unfair. Specifically, he argues that three of the four witnesses who identified him “were exposed to multiple pre-trial identification procedures which made it obvious that the suspicions of the police had fallen upon” Richardson. Pet’s Suppl. Mem. at 3. The evidence showed that there were three pretrial identification procedures: an initial photographic lineup involving black- and-white photos; a second photographic lineup involving color photos; and a third in-person lineup. Richardson was the only person whose face appeared in all three. Two witnesses at trial participated in all three of these procedures: Thomas Fitzpatrick, the victim of the April 5 armed robbery, and Bonnie Williams, a clerk at Twin Foods. Another witness, Ray Slagle (a witness to the April 5 robbery), participated in two of them. The Illinois Supreme Court considered on the merits Richardson’s claim that this violated due process. The court correctly identified the federal constitutional standard: The determination as to whether a pretrial confrontation in a specific instance is “so unnecessarily suggestive and conducive to irreparable mistaken identification that [defendant] was denied due process ... depends on the totality of the circumstances surrounding it.” (Stovall v. Denno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206.) Richardson, 123 Ill.2d at 348, 123 Ill.Dec. 908, 528 N.E.2d at 621. Richardson concedes that the state court considered the proper U.S. Supreme Court authority. He argues, however, that it applied that authority unreasonably. The fact that witnesses saw a photograph of Richardson (but not of anyone else in the lineup) before seeing him in a lineup certainly provided a potential for suggestion, or even a false identification. The Illinois Supreme Court, however, assessed the reliability of the identification testimony in a reasonable and thorough way, and it considered the necessary factors. With regard to Fitzpatrick, the Illinois Supreme Court found that he “had an excellent opportunity to view his assailant, focusing his attention as defendant entered the bar waving the gun, as he jumped over the counter, and as he stood over Fitzpatrick in the well-lit hallway.” Richardson, 123 Ill.2d at 351, 123 Ill.Dec. 908, 528 N.E.2d at 623. It also noted that Fitzpatrick’s identification of Richardson from the photo array “was tentative” and that “he wanted to see a lineup to be sure.” Id. As to Slagle, the Illinois Supreme Court found that he had viewed the gunman “for several minutes as [he] entered the bar, as he rifled the cash registers, and as he ran through the bar to make his escape,” that Slagle’s attention “was clearly focused on the gunman,” and that he had given “a detailed description of the assailant and [had] identified defendant from the photographic arrays.” Id. Finally, with regard to Williams, the Illinois Supreme Court noted that the evidence reflected that she “observed the gunman when he was removing money from the victim’s cash register” and again as he ran toward her while heading for the door, and that “[a]ll of her attention remained focused on the robbery and the robber,” who “made no attempt to conceal his features.” The court also noted that “Williams was able to give police a detailed description of [the offender]” and “was further able to positively identify defendant from the first array of photos, although two years had passed since the murder.” Id. at 351, 123 Ill.Dec. 908, 528 N.E.2d at 622-23. Though one could dispute the Illinois Supreme Court’s conclusions, they did not amount to objectively unreasonable application of due process standards. The court appropriately focused on the reliability of the identification testimony. “[R]eliability is the linchpin in determining the admissibility of identification testimony ----” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In addition, the state court considered, as required, the factors identified by the Supreme Court to assess reliability: The factors to be considered ... include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Id. Though reasonable jurists could disagree regarding the amount of weight to give to each of these factors, the Illinois Supreme Court’s application of the due process standard does not approach the requirement of objective unreasonableness. D. Ineffective assistance claim Richardson’s ineffective assistance claim concerns the penalty (sentencing) phase of his case, which was conducted before the trial judge without a jury. The prosecution submitted extensive evidence in aggravation. Most of it involved Richardson’s prior arrests and convictions. — Richardson was arrested in 1971 for theft and in 1972 for battery. Both charges were dismissed. — Richardson was dishonorably discharged from the U.S. Marine Corps, in which he served from 1972 through 1975, after years of trouble with the military police. When he testified on his own behalf at the penalty phase, Richardson admitted having been AWOL for the majority of the time he served in the military. — In 1975, he was arrested for setting a car on fire and being involved in a fight near the car. He failed to appear in court, and an arrest warrant was issued. The disposition of the charges was unknown. — In 1976, Richardson was arrested for disorderly conduct at a bar, but no charges were filed. — In 1977, Richardson and his brother were arrested and charged with robbery in connection with an incident in which they were alleged to have hit one of the victims and thrown him through a plate glass window. The disposition of the charges was unknown. — Later in 1977, Richardson was arrested and charged with robbing a man of money and a watch. He pled guilty and was sentenced to, a prison term. — In 1988, within a short time after he was released on parole, Richardson stole a van and was convicted of felony theft. He was sentenced to a prison term. — In 1979, two weeks after being released from prison, Richardson was arrested for disorderly conduct in connection with an alleged altercation with police, but no charges were filed. — On April 1, 1980, Richardson committed the murder / robbery for which he was tried. — On April 5, 1980, he committed the tavern robbery / shooting that was introduced in evidence at the murder trial. — In September 1980, Richardson was arrested for allegedly assaulting a witness outside the criminal courthouse, but the charge was later dismissed. — In January 1981, he was charged with possession of a controlled substance and was sentenced to a prison term. — In February 1981, while on parole, Chicago police officers went to Richardson’s apartment to serve him with a warrant. The officers knocked and waited but entered the apartment when they heard a window opening. They saw Richardson holding a bag with the butt of a gun sticking out the opening. It was a loaded sawed-off shotgun. He was convicted of weapons possession and sentenced to a prison term. — In May 1982, four months after his release from prison, Richardson was arrested for armed robbery. The victim testified that he approached her with a gun, which he placed against her side, and demanded the money and valuables of her and her companions. She claimed he threatened to kill her, struck her in the face, and tore her shirt. The victim called the police, who located Richardson and arrested him. The victim’s watch and money were in his possession. — In December 1983, while in the Cook County Jail awaiting trial, a correctional officer searched Richardson’s cell and found homemade liquor and gang literature. When a sergeant confronted Richardson about this, he struck the sergeant and head-butted another officer. Several officers were needed to subdue him. See Richardson II, 189 Ill.2d at 417-19, 245 Ill.Dec. 109, 727 N.E.2d at 372-73. Richardson’s trial counsel introduced the testimony of Richardson, his mother, and Victoria Smith, his common law wife. Smith testified that she had known Richardson for ten years and that he had fathered two children with her, both born after he had been sent to prison for earlier crimes. She said that she and the children had maintained contact with Richardson, he treated them well, and their son looked up to him. She also testified about jobs Richardson had held when not in prison, saying he had tried to support her and their children. She described him as a good person who had tried to make life better for them and wanted to accomplish something in his own life. Richardson’s mother, Areania Richardson, described his childhood and family life, including jobs he had held. She described him as a father figure who had looked after her and his siblings. She testified that he returned home in 1975 after being discharged from military service and again in 1978 when he was paroled after serving time for robbery. She said that she had tried to do her best for Richardson but that he had been unable to find work after serving time in prison. She testified that he had maintained a close relationship with the family. Richardson testified that after his father died, he quit school to work and help support the family. He described various jobs he had held and the fact that he had obtained a GED. Richardson denied any involvement in the Twin Foods robbery and the murder of George Vrabel. He admitted having committed the other crimes for which he had been convicted. He denied ownership of the sawed-off shotgun found at the apartment where he had been living with Smith and their son. Richardson stated that he had joined a street gang while in prison to obtain protection, but he denied taking part in any gang activity or holding any rank in the gang. He admitted that he had recruitment material from the gang in his prison cell but denied telling others to read it. He said that he had maintained a close relationship with his mother, Smith, and their sons. Richardson contends that his attorneys should have introduced evidence as follows: — He was born prematurely and weighed only five pounds at birth and suffered chronic fevers as an infant, one of which was nearly fatal. — He was often beaten by gang members while protecting his sister on their way to school. He had been beaten unconscious and suffered multiple head traumas, which suggest he had brain damage. — He was at the bottom of the low-average range of intelligence and slightly above the borderline of mental deficiency, and his attention and reasoning skills were at a similar level. — He read at a sixth grade level and had mathematical skills at a sixth grade level. — He had difficulties with impulsivity and suffered from poor reasoning, problem solving, judgment, and inhibition control. Richardson first asserted his claim of ineffective assistance at the post-conviction stage of the state court proceedings. At that point, he was still under a sentence of death. He supported the claim with reports from a neurologist and a mitigation expert who had conducted interviews and reviewed records. He argued that all of this information had been available but that his trial counsel had done no investigation regarding his background aside from the efforts they conducted that led to calling Richardson himself, his mother, and his common law wife. He introduced an affidavit from one of his trial lawyers, Joseph McElligott, who stated that he did not recall any preparation for the sentencing proceeding other than interviewing Richardson, his mother, and Smith. In addressing Richardson’s claim, the Illinois Supreme Court acknowledged and cited the federal standard for ineffective assistance of counsel. See Richardson II, 189 Ill.2d at 410-11, 245 Ill.Dec. 109, 727 N.E.2d at 369 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The court also acknowledged that counsel had an obligation to investigate potential sources of mitigation evidence or to have a reason not to make such an investigation, and to introduce mitigation evidence at sentencing. Id. at 413-14, 245 Ill.Dec. 109, 727 N.E.2d at 370. The Illinois Supreme Court held, however, that “counsel’s performance at the death sentencing hearing was clearly a strategic decision. In his opening statement, defendant’s trial counsel informed the court that defendant would testify that he was not guilty of the crimes charged. During closing argument, defendant’s trial counsel emphasized defendant’s relationship with his family .... ” Id. at 414, 245 Ill.Dec. 109, 727 N.E.2d at 370-71. The court reviewed the evidence of psychological impairments offered by post-conviction counsel and concluded that given Richardson’s testimony that he had not committed the murder, “it would have been contradictory for his trial counsel to present mitigation evidence to explain or clarify why defendant committed the murder. Defense counsel could not be expected to present mitigation evidence that contradicted defendant’s protestations of innocence.” Id. at 416, 245 Ill.Dec. 109, 727 N.E.2d at 372 (citations omitted). The court also concluded, in the alternative, that even had trial counsel introduced this evidence, there was no reasonable possibility that the trial judge would have concluded that the balance of aggravating and mitigating circumstances did not warrant a death sentence. Id. In this regard, the court noted that the aggravation evidence was “extensive,” consisting of evidence of an extensive history of other crimes, some of them violent. Id. at 416-18, 245 Ill.Dec. 109, 727 N.E.2d at 372-73. The aggravation evidence also included testimony about an incident while Richardson was incarcerated pending trial in which gang literature and homemade liquor were found in his cell and, after being confronted by a correctional officer, he struck the officer and head-butted another officer. Id. at 419, 245 Ill.Dec. 109, 727 N.E.2d at 373. The court stated that the evidence of alleged mental impairments was “not inherently mitigating” because it “could have demonstrated defendant’s continued dangerousness,” id. at 420, 245 Ill.Dec. 109, 727 N.E.2d at 374 (internal quotation marks and citation omitted). It found there was no reasonable possibility that this evidence would have led the trial judge to impose a sentence other than death. Id. The Supreme Court next considered the evidence, not discovered or offered by trial counsel, regarding Richardson’s social history. It reviewed the evidence and similarly found that the trial judge could have considered it to be an aggravating factor: “The judge could have regarded defendant’s troubled life, with his criminal record, as an indicator of future dangerousness. Specifically, the trial judge could have considered a history of substance abuse as an aggravating circumstance rather than a mitigating circumstance.” Id. at 421, 245 Ill.Dec. 109, 727 N.E.2d at 374 (citations omitted). The court concluded that the introduction of his evidence “would not have created a reasonable possibility of a different sentence.” Id. Richardson no longer faces a death sentence. That does not, however, render his claim moot. He notes that the trial judge was not required to impose a sentence of life without parole if he had not imposed a death sentence. He contends that it is reasonably possible that the absent evidence, had it been introduced by trial counsel, would have led the judge to impose a term of years that would have enabled his eventual release from prison. See Pet’s Suppl. Mem. at 70; see generally Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir.2006). The Illinois Supreme Court’s determination that trial counsel’s failure to offer psychological-impairment evidence was a reasonable strategic decision is subject to serious question. Though the court acknowledged that strategic decisions are largely unchallengeable if “made after investigating the law and the facts,” Richardson II, 189 Ill.2d at 413, 245 Ill.Dec. 109, 727 N.E.2d at 370, it does not appear to have applied that principle at all, let alone reasonably. The Sixth Amendment standard, as established by the U.S. Supreme Court in Strickland, requires deference to counsel’s strategic decisions only if they are made after investigation or a reasonable decision that investigation is unnecessary: [Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. In Richardson’s case, the undisputed evidence was that trial counsel conducted no investigation into whether there was viable mitigating evidence. As Strickland makes clear, no investigation amounts to objectively reasonable conduct only if counsel made “a reasonable decision that .... particular investigation[ ][was] unnecessary.” Id. at 691, 104 S.Ct. 2052. The Illinois Supreme Court, however, completely disregarded that essential element of the Strickland analysis. Its decision in that regard was contrary to Strickland, or at a minimum it was an unreasonably unreasonable application of Strickland. Because trial counsel appear to have had no clue about the existence of other mitigating evidence, they were in no position to make a reasonable strategic decision whether to advise Richardson to continue to maintain his innocence at the penalty phase or instead to rely on evidence of diminished capacity and other mitigating social factors. Richardson cannot prevail on this claim, however, unless he also establishes that the Illinois Supreme Court’s decision that he was not prejudiced within the meaning of Strickland was objectively unreasonable. That is where Richardson’s claim fails. Were the Court considering the matter afresh, it might well disagree with the state court’s assessment of the prejudice issue. But that is not the standard of review. This Court may grant Richardson relief only if it is not possible that fairminded jurists could disagree about whether the state court unreasonably applied Strickland and its Supreme Court progeny on the issue of prejudice. Harrington, 131 S.Ct. at 786. Though the matter is not free from doubt, the Court concludes that the state court did not unreasonably apply Strickland on the prejudice issue. The Court believes that reasonable jurists could agree with the Illinois Supreme Court’s assessment that it was at least equally likely that the sentencing judge would have taken the proposed mitigating evidence as showing that Richardson would present a serious danger to the community if he were one day released. This is particularly so when considered in light of Richardson’s criminal history, which reasonably could be understood as showing a continuing escalation of violent criminal conduct. In sum, the Court cannot say that the state court unreasonably applied Strickland when it concluded there was no reasonable possibility that the sentencing judge would have imposed any sentence other than one that would have prevented Richardson’s eventual release — either a death sentence or a sentence of life without parole. For this reason, the Court rejects Richardson’s ineffective assistance claim. E. Batson claim 1. Procedural default / cause and prejudice As indicated earlier, on appeal from the denial of Richardson’s post-conviction petition, the Illinois Supreme Court rejected his Batson claim on the ground that he had forfeited it by failing to object at trial to the prosecution’s peremptory challenges. People v. Richardson, 189 Ill.2d 401, 409-10, 245 Ill.Dec. 109, 727 N.E.2d 362, 368 (2000) (“Richardson II ”). This Court previously concluded that Richardson had established cause for the procedural default of his Batson claim, in that the claim was not reasonably available under the law when the Illinois Supreme Court held he had defaulted it, i.e., at the time of his trial. Richardson v. McCann, 653 F.Supp.2d at 842-46. The shorthand version of the Court’s rationale is that under U.S. Supreme Court precedent, a claim is considered not to be reasonably available if the Supreme Court decision that later established it expressly overruled one of that Court’s precedents. See id. This was the case with Batson, which expressly overruled Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the controlling Supreme Court precedent at the time of Richardson’s trial regarding a prosecutor’s discriminatory use of peremptory challenges against black jurors. This Court also concluded, in the alternative, that even if Richardson’s Batson claim was deemed to be reasonably available at the time of his trial, he still might be able to establish cause for the default, consisting of ineffective assistance of counsel for failing to challenge the prosecution’s peremptory strikes. Richardson v. McCann, 653 F.Supp.2d at 846-49. The Court deferred making a definitive ruling on this point until after an evidentiary hearing. Id. at 849. A habeas corpus petitioner who proeedurally defaulted a claim in state court must show not only cause for the default but also that he was prejudiced as a result. This, as the Court noted in its previous decision, requires Richardson to show that the errors at trial “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494, 106 S.Ct. 2639 (emphasis in original; internal quotation marks and citation omitted). See Richardson v. McCann, 653 F.Supp.2d at 849. On the prejudice issue, this Court stated as follows: If, as Richardson contends, the prosecution violated his equal protection rights by striking jurors because of their race, than there is no question his trial was infected with error of constitutional dimensions. This inquiry, however, is intertwined with the ultimate merits of Richardson’s Batson claim, which in turn may depend on the further development of the record. As a result, the Court cannot determine at this stage whether Richardson has satisfied the test for prejudice. That determination will have to await the hearing on the Batson issue that the Court orders in this decision. Id. at 849-50. The evidence that Richardson and respondent offered in connection with the evidentiary hearing addressed the merits of the Batson claim, the intertwined determination of the “prejudice” issue, and the ineffective assistance of trial counsel issue. The evidence primarily concerned information regarding the race of certain prospective and excluded jurors; statements by the trial prosecutors; and evidence on the ineffective assistance point. 2. Facts relating to the jury selection process Jury selection for Richardson’s trial was held on March 26-27, 1984. Ninety-one prospective jurors appeared in court. Of these, forty-six were white and forty-three were black. The race of two of the prospective jurors is unknown, but that is not terribly significant because neither of them ended up being tendered to counsel for possible selection. Each of the prospective jurors had filled out a brief written questionnaire (called a juror card) before coming to court. The trial judge and the attorneys had access to the juror cards during the voir dire. The trial judge conducted the oral voir dire himself; counsel did not put questions to the prospective jurors. The jury was selected in panels of four. In other words, the judge questioned enough prospective jurors judge until four were qualified. The panel of four jurors was then tendered to the prosecution for peremptory challenges. After the prosecution struck whatever jurors it wished to strike from the panel, additional jurors were qualified and tendered to the prosecution for peremptory challenges. This process continued until there was a panel of four that was acceptable to the prosecution. The resulting panel was then tendered to the defense for peremptory challenges, and more jurors were filled in as the defense struck jurors. Once this resulted in a panel acceptable to the defense, the panel was then re-tendered to the prosecution, which could then exercise peremptory challenges against jurors that had been added following its acceptance of the initial panel. This process continued, back and forth, until there was a panel of four jurors accepted by both sides. Those jurors were then sworn in, and the process resumed with the selection of another panel. The record discloses that trial judge excused for cause twenty-six members of the venire, thirteen of them white and thirteen of them black. This left sixty-five potential jurors. Of these, thirty-three were white, thirty were black, and the race of two of them is unknown. If the race of the unknown jurors is disregarded, the composition of the venire, not counting those excused for cause, was fifty-two percent white (33/63) and forty-eight percent black (30/63). During voir dire, fifty jurors were tendered to one side or the other after being questioned. Of these, fifty-four percent were white (27/50), and forty-six percent were black (23/50). More significant for present purposes, however, is the racial composition of the group of jurors tendered to the prosecution for selection. There were forty-one such jurors. Of these, forty-four percent were white (18/41), and fifty-six percent were black (23/41). Even though the jurors tendered to the prosecution were predominantly black, the jury that ultimately decided Richardson’s case was only one-third black (4/12) and was two-thirds white (8/12). This occurred due to the prosecution’s disproportionate use of its peremptory challenges against black jurors. Indeed, the prosecution excused only black jurors. It did not excuse a single white juror. Each side had twenty peremptory challenges. The prosecution used sixteen of its challenges. It used all sixteen to strike black jurors. The jury that was selected included eight whites and four blacks. There were two alternates, one white and one black. During the course of the trial, the black alternate replaced a black juror who was excused. As noted above, if one considers only the twelve originally selected jurors, the jury was sixty-seven percent white (8/12) and thirty-three percent black (4/12). If one includes the alternates, the jury, including alternates, was sixty-four percent white (9/14) and thirty-six percent black (5/14). On the first day of jury selection, there were forty-nine prospective jurors in the courtroom. After excusing a number of jurors for cause, the trial judge discharged a number of jurors for that day, directing them to return the next day. At this point, twenty-one jurors remained in the courtroom. One of these, a black prospective juror, was excused for cause by the trial judge a bit later in the day. This left twenty jurors, eleven of whom were black (fifty-five percent), and nine of whom were white (forty-five percent). By the end of the first day of jury selection, three of these eleven black prospective jurors had been seated, the prosecution had struck seven, and the defense had struck one. As indicated earlier, the trial judge selected the jury in panels of four. The first panel the judge tendered to the parties included prospective jurors Moses (black), Sanders (black), Edwards (black), and Seaman (white). Both the prosecution and defense accepted all four, and they were sworn in. The selection of the second panel took a good deal longer. The judge tendered prospective jurors Allen (black), Overton (black), Bogs (white), and Ladd (white) to the prosecution. The prosecution struck the two black jurors, Allen and Overton, leaving two white jurors. The judge then tendered two more black jurors, Dixon (black) and Price (black). The prosecution struck both of them. The judge tendered two more black jurors, Benton (black) and Purnell (black). The prosecution struck one of them, Benton, leaving the second black juror, Purnell, on the panel. The judge tendered prospective juror Mack (white), and the prosecution accepted her. The resulting panel that the judge tendered to the defense included prospective jurors Bogs (white), Ladd (white), Benton (black), and Mack (white). The defense excused Ladd (white), Benton (black), and Mack (white). The judge tendered three more jurors, Nietfeldt (white), Wilson (black), and Ciszewski (white). The defense excused the two newly-added white jurors, Nietfeldt and Ciszewski. The judge tendered two jurors to replace them, Colyer (black) and Szymanski (white). The defense excused Szymanski (white). The judge tendered juror Kale (white) to the defense, and the defense excused him. At this point, the judge adjourned for the day. The selection of the second panel of four jurors continued on March 27. The judge tendered juror Gilmore (black) to the defense, which accepted him. At this point, the panel consisted of three black jurors and one white juror: Bogs (white), Wilson (black), Colyer (black), and Gilmore (black). The prosecution excused two of the black jurors, Colyer and Wilson. The judge tendered two new jurors, Smith (black) and Zawislak (white). The prosecution excused the black juror, Smith. In her place, the judge tendered juror Mandoky (white). The prosecution accepted him. This left a panel that consisted of one black juror and three white jurors, Bogs (white), Gilmore (black), Zawislak (white), and Mandoky (white). The defense excused two white jurors, Zawislak and Mandoky. The judge tendered jurors Dixon (black) and Drenth (white), and the defense excused Drenth (white). In her place, the judge tendered juror Delegato (white), and the defense accepted her. The resulting panel tendered to the prosecution consisted of two black jurors and two white jurors: Bogs (white), Gilmore (black), Dixon (black), and Delegato (white). The prosecution excused Dixon, a black juror, and juror Chilla (white) was tendered to replace her. The prosecution and defense both accepted the resulting panel, which consisted of three white jurors and one black juror: Bogs (white), Gilmore (black), Delegato (white), and Chilla (white). The trial judge swore them in. At this point, there were four white jurors and four black jurors. The third panel initially tendered to the prosecution included three white and one black juror: Silhavy (white), Hozian (white), Blatse (white), and Wolfe (black). The prosecution excused the black juror, Wolfe. A white juror, Berlin, was tendered in her place, and the prosecution accepted her and the panel, leaving an all-white panel to tender to the defense. The defense excused three of the white jurors, Silhavy, Hozian, and Blatse, and they were replaced with jurors Gudas (white), McGee (black), and Lisak (white). The defense excused Gudas and Lisak, both of whom were white. After a break, forty-two additional prospective jurors came to the courtroom. After questioning them, the judge excused thirteen, leaving twenty-nine jurors. Fourteen were black, thirteen were white, and the race of two was unknown. Even though the remaining prospective jurors were almost equally distributed racially, the last four regular jurors selected and sworn were all white. This occurred largely because the prosecution excused five black jurors. It accepted a sixth black juror, but the defense excused that juror. After the break, the last panel started out with two jurors, Berlin (white) and McGee (black). The judge tendered two additional jurors, Kilkus (white) and Korda (white). The defense excused Korda (white), and he was replaced with juror Tucker (black), whom the defense accepted. A panel that included two white jurors, Berlin and Kilkus, and two black jurors, McGee and Tucker, was tendered to the prosecution. The prosecution excused both black jurors, McGee and Tucker. They were replaced with two white jurors, Brandstedt and Curran. The prosecution accepted the resulting all-white panel. The defense excused Brandstedt (white); the judge tendered juror Malito (white); and he was replaced with juror Redmond (black), whom the defense accepted. The prosecution excused Redmond, and he was replaced with Szeszycki (white), whom the prosecution accepted. The defense excused Szeszycki (white), and he was replaced with juror Upshire (black). The defense accepted Upshire. The prosecution excused Upshire, and he was replaced with juror Hopkins (black), whom the prosecution accepted, but the defense struck. He was replaced with juror Tolbert (black), whom the defense accepted, but the prosecution struck. Tolbert was replaced with juror McKee (white), whom the prosecution and the defense both accepted. The resulting panel of four jurors, all white, was sworn in. The alternate jurors were selected as follows. The judge tendered juror McDonald (black) to the prosecution, who excused him. He was replaced with juror Gunn (black), whom both the prosecution and defense accepted. The next juror tendered was Orozco (white), whom both sides accepted. The alternates were then sworn in. It is arguably noteworthy that of the next four jurors that would have been tendered, the first, juror Ude, was white, and the other three, Glenn, Ramsey, and Williams, were black. Thus, as Richardson notes, if the prosecution had used more of its strikes earlier in the process, three more black jurors would have been tendered, and in that scenario the prosecution likely would not have had enough strikes left to exclude all of them. As the Court has indicated, the prosecution used sixteen of its twenty peremptory challenges. It used all sixteen of them (one hundred percent) to excuse black jurors. Including alternates, all told, the jurors tendered to the prosecution included eighteen white jurors (forty-four percent) and twenty-three black jurors (fifty-six percent). The prosecution accepted one hundred percent of the white jurors tendered (eighteen of eighteen) but only thirty percent of the black jurors (seven of twenty-three). This is not a case in which the prosecution struck all of the black prospective jurors. Indeed, it could not have done so given the number of black prospective jurors in the venire. Richardson’s theory is that the prosecution essentially adopted a quota — it was willing to accept a few black jurors but wanted to avoid a majority-black jury. 3. The evidentiary hearing and expansion of the record The Court previously concluded that it was appropriate to conduct an evidentiary hearing and expand the record on Richardson’s Batson claim. See Richardson, 653 F.Supp.2d at 853-54. The Court made clear that the evidentiary hearing would involve both the prejudice element of the cause-and-prejudice analysis and the merits of the Batson claim itself. See id. at 850, 853-54. The Court now revisits the latter of these determinations in light of the Supreme Court’s recent decision in Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). In Pinkolster, a federal habeas corpus petitioner claimed that his trial counsel had rendered ineffective assistance at the penalty phase of the trial. The state supreme court twice rejected the claim on the merits. See id. at 1396-97. On habeas review, the federal trial court granted an evidentiary hearing and allowed supplementation of the factual record. The court then granted a writ of habeas corpus on ineffective assistance grounds. Id. at 1397. The court of appeals affirmed, taking into consideration the additional evidence adduced at the federal hearing. Id. The Supreme Court reversed. It started with 28 U.S.C. § 2254(d), which provides (as noted earlier) that if a claim has been adjudicated on the merits in state court, a federal court may not grant a writ of habeas corpus based on that claim unless the state court’s decision was contrary to or unreasonably applied clearly established federal law. Id. at 1398 (citing 28 U.S.C. § 2254(d)(1)). The Court concluded that the “backward-looking language” of section 2254(d)(1) “requires an examination of the state-court decision at the time it was made” and that “[i]t follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court.” Id. The Court ruled that “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” Id. at 1400. The Court went on to address the petitioner’s contention that its holding rendered superfluous the provision of the federal habeas corpus statute that concerns when a court can conduct an evidentiary hearing in a habeas corpus proceeding, 28 U.S.C. § 2254(e)(2). The Court said that section 2254(e)(2) “continues to have force where § 2254(d)(1) does not bar federal habeas relief.... [N]ot all federal habeas claims by state prisoners fall within the scope of § 2254(d), which applies only to claims ‘adjudicated on the merits in State court proceedings.’ ” Id. at 1401. Section 2254(e)(2), the Court concluded, still applies when the federal court is “deciding claims that were not adjudicated on the merits in state court.” Id. Richardson’s Batson claim was not “adjudicated on the merits in state court.” Rather, the Illinois Supreme Court held that the claim was forfeited (waived, as that court put it). Richardson II, 189 Ill.2d at 409-10, 245 Ill.Dec. 109, 727 N.E.2d at 368. Thus it did not address or decide the claim on the merits. Before the state supreme court’s ruling, the state trial court had determined Richardson’s Batson claim on the merits. This, however, is beside the point, given the state supreme court’s determination that the claim had been forfeited. To qualify as an adjudication on the merits, “the state court’s resolution of the claim must have preclusive effect.” Thomas v. Horn, 570 F.3d 105, 115 (3d Cir.2009). The Illinois Supreme Court decided Richardson’s Batson claim on purely procedural, not substantive grounds. As in Thomas v. Horn, that decision “stripped the [trial] court’s substantive determination of [petitioner’s] claims of preclusive effect.” Id. The fact that a lower state court decided the claim on the merits is of no consequence for purposes of determining whether the claim was decided on the merits or, alternatively, on procedural grounds. As Judge Easterbrook stated for the Seventh Circuit in Liegakos v. Cooke, 106 F.3d 1381 (7th Cir.1997), “the disposition of the last state court to issue an opinion determines whether the state has invoked a ground of forfeiture.” Id. at 1385. Here the last state court opinion quite definitively “involved a ground of forfeiture.” Given the Illinois Supreme Court’s ruling, Richardson’s Batson claim cannot be said to have been determined on the merits in state court for purposes of section 2254(d)(1) or section 2254(e)(2), even though a lower court did decide the claim on its merits. Thus Cullen v. Pinholster did not affect this Court’s authority to conduct an evidentiary hearing. The Court therefore reaffirms, in full, its decision to hold an evidentiary hearing and expand the record with regard to Richardson’s Batson claim. 4. The ineffective assistance issue The only additional evidence before the Court on the “cause”-related issue of ineffective assistance of Richardson’s trial counsel is the affidavit of Steven Decker, an experienced criminal defense attorney who was engaged in the defense of criminal cases in the Cook County courts at the time of Richardson’s trial. Decker states that at the time, given a recent Illinois Appellate Court decision (People v. Payne, 106 Ill.App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (1982), discussed at length in this Court’s prior decision, see Richardson v. McCann, 653 F.Supp.2d at 848-49), criminal defense attorneys practicing in the state court were commonly aware that there was a developing trend in the law that would permit challenges to a prosecutor’s racially discriminatory use of peremptory challenges in a particular case (contrary to Swain). Decker himself asserted what this Court has previously called a “proto-Batson ” claim in January 1985 and eventually, after collateral review, obtained a hearing on that claim. Decker’s affidavit is uncontradicted, and it is persuasive. And in Richardson’s trial, given the prosecutors’ use of their peremptory challenges to strike sixteen black jurors (and only black jurors), there was certainly enough to trigger the assertion of a proto -Batson challenge. If it is determined — contrary to the Court’s primary “cause” ruling — that a Batson claim was reasonably available to Richardson’s trial counsel even though Batson had not yet been decided, the fact that criminal defense lawyers were commonly aware that such challenges could and should be asserted renders the failure of Richardson’s counsel to do so objectively unreasonable. The Court also adopts in this regard its previous discussion of the ineffective assistance / cause issue. See Richardson v. McCann, 653 F.Supp.2d at 846-49. Richardson has demonstrated ineffective assistance as an alternate basis of “cause” for the procedural default of his Batson claim. 5. The merits In this section, the Court addresses the merits of Richardson’s Batson claim for the dual purpose of assessing “prejudice” under the cause-and-prejudice analysis and to determine the merits of the claim as a matter of federal law assuming that prejudice is established. These inquiries are obviously intertwined. Because the Illinois Supreme Court did not determine Richardson’s Batson claim on its merits, this Court reviews the claim de novo. See, e.g., Byers v. Basinger, 610 F.3d 980, 989 n. 6 (7th Cir.2010); Gonzales v. Mize, 565 F.3d 373, 384-85 (7th Cir.2009); see 28 U.S.C. § 2254(d) (limiting deference to “any claim that was adj