Facts of the case
September 2, 1987, James Tenner placed nooses around the necks of three
of his friends, yelled at them for approximately two hours because he
believed they had interfered with his relationship with his girlfriend,
Shirley Garza and then, while their hands and feet were tied together
and their necks were in the nooses, he shot them, killing two of them
and severely injuring the third.
Tenner had known these friends, his victims, for a long time. He met
Albert and Donna Sauls in the early 1970's and over the course of the
years he worked with Albert in several different businesses.
the beginning of 1987, Tenner met Shirley Garza at a Dunkin' Donuts and
later introduced Shirley to Donna and Albert Sauls, as well as another
friend of theirs, Alvin Smith. Tenner and Shirley began to date and
lived together for a short period during the spring of 1987, but by
July, 1987, Shirley had left Tenner and they no longer lived together.
September 2, 1987, after finishing work for the day, Albert Sauls and
Alvin Smith went to the garage located at 3202 South State Street,
Chicago Heights where both Tenenr and Sauls rented space.
Albert and Alvin arrived at approximately 6:00 p.m. and began to work on
repairing Saul'struck. Shirley Garza and Albert's wife, Donna, arrived
at the garage a short time later. When Alvin Smith attempted to leave,
he was met outside by Tenner who pointed a shotgun at him and ordered
him back into the garage.
Tenner right behind him, Alvin put his hands in the air and stepped
backwards into the garage. Once inside, Tenner pointed his shotgun at
Alvin Smith, Shirley Garza, and Donna and Albert Sauls and ordered them
to lie down on the floor.
Tenner told them that he was going to tie them up and tell them what he
thought of them. Tenner ordered Donna and Shirley to get up off the
floor. He removed several pieces of rope from his pocket which each
piece having a loop tied with a slip knot at both ends.
Tenner ordered Shirley to tie Alvin's ankles together and to tie his
hands behind his back. He ordered Donna to tie Albert the same way and
then gave Shirley two more ropes and forced her to tie Donna's hands and
Shotgun in hand, Tenner ordered Donna, Albert, and Alvin to kick their
feet and make the ropes tighter. Tenner then told them that they were
going to take a short walk around the garage to the section in the same
building that he rented for his trucks and that he was going to tell
them what he thought of them and when he finished he would leave.
Although Albert, Alvin, Shirley, and Donna refused to go with Tenner, he
explained to them that if they did not, he would shoot them. Moving
slowly because their feet were bound they went around the building and
entered the back of petitioner's garage.
Tenner then shut the garage door and started to talk to them. As they
walked, they saw that there were three ropes of different lengths
hanging from the overhead beams in the
garage. The end of each rope was tied into a noose.
Tenner then began to walk back and forth in front of the victims, waving
his shotgun and yelling at them about their alleged interference in his
relationship with Shirley as he ordered them to stand under the specific
rope that corresponded to their height.
told Shirley at that time that she messed up his plans when she arrived
at the garage and that he would have to make another noose for her but
before she had to put her head in the noose, he ordered her to place the
nooses around the necks of Donna, Albert, and Alvin.
Tenner then got someduct tape and forced Shirley to place the tape over
their mouths. When she was done doing Tenner’s dirty work, petitioner
made another noose, put the loop over Shirley's head, tied her feet and
hands and put tape over her mouth.
each of the victim's hands and feet bound, their mouths taped, and their
necks in nooses, he then, again, began yelling about the Sauls
involvement in his break up with Shirley.
Tenner then asked Shirley to choose which of her friends should die
first, as he looked at his watch and told all of them that they had just
about run out of time and that they had lived their last few minutes.
Tenner then let Shirley go, ordering her to go out into the street and
wait and to not to do anything crazy or he would kill her. He then
turned to the other victims and told them, " ... I guess this is it."
pointed his shotgun at Donna Sauls and shot her in the face and in the
shoulder. As she slumped to the floor the noose tightened, causing her
neck to break. After Donna fell, Tenner turned his shotgun on Alvin
Smith and shot him in the abdomen which also caused him to slump into
After shooting Donna and Alvin, he then turned his gun on Albert and
fired twice, although Albert had managed to get his hands free from the
rope that bound them together.
Albert he had his hands up, trying to remove the noose around his neck,
Tenner shot him in the arm and in the eye. Tenner then fled the scene
with Shirley in his car as a hostage.
drove to O'Hare Airport where he picked up his wife, Triva Tenner, and
then drove in the direction of Rockford, where Triva lived. Tenner told
Shirley that he was going to kill her there. Tenner never made it to
Rockford because an all-points bulletin was sent and he was stopped
while driving near the airport.
loaded shotgun was recovered from the front driver's area of the car,
along with a couple of boxes of shotgun shells from the back seat on the
Albert Sauls lay bleeding on the ground of the garage for sometime
before he was able to move. He tried to cut the rope from his neck with
a knife but he dropped the knife on the ground. Eventually, Albert was
able to get his hands on the rope and untie it where it was anchored on
the wall. He tried several times to get up but each time he fell down.
Eventually he was able to crawl to the front of the garage and press the
garage door opener. As he crawled he dragged the long length of rope
behind him. Albert again tried to get up and walk but he could not see
because of the gunshot wound to his eye.
knew there was a house across the street, so he crawled over 250 feet to
the house and yelled for help.
Daniel Castine heard Albert yelling and when he saw him, he was bleeding
from the face and arm, and he had a noose around his neck. He had to
force his fingers under the rope in order to cut the noose from Albert's
trial, Tenner admitted that he went to his garage the day of the
murders, cut several pieces of rope, tied slip knots on both ends in the
shape of a noose which he threw over the beam of the garage. He then
“ran into” Alvin Smith as he was walking outside. He further admitted
that he told everybody to get on the floor and then gave Shirley Garza
the ropes so that she could tie their hands and feet.
admitted he then took the group to his side of the garage and that when
they got to his garage he made Shirley put the nooses on their necks and
tape over their mouths. He said he was “afraid” that they were going to
try and kill him so he picked up his shotgun and started shooting.
After hearing all of the testimony and the evidence adduced at trial,
the jury found petitioner guilty for the hanging and murders of Alvin
and Donna and the attempt murder of Albert. The state sought the death
After Tenner was found eligible for the death penalty, the state
presented in aggravation testimony concerning Tenner’s history of
beating the various women in his life.
incident involved Shirley Garza who had reported to the police that she
was in her car at a stop light when Tenner opened the door, got in and
pulled a knife. He cut her on the left arm and in the abdomen and then
told her to drive across the street to where he held her in the car at
knifepoint until 2:30a.m. a police captain with the Chicago Police
Department testified that when Shirley Garza came into the police
station he saw the stab wounds on her arm and stomach.
State then presented a certified copy of conviction which indicated that
on December 3, 1968 petitioner pled guilty to the offense of burglary
and was sentenced to two years probation.
mitigation petitioner called twelve witnesses including six family
members. All the witnesses testified that petitioner was a hard worker
and that he had been an important part of their lives. Officer Sorell of
the Cook County Department of Corrections testified that petitioner was
a good inmate and that he had done work for her.
Following all the evidence and arguments in aggravation and mitigation,
the jury returned a verdict indicating that there were no mitigating
factors sufficient to preclude the imposition of the death penalty. On
March 12, 1990, petitioner was sentenced to death by the Honorable Will
The United States
Supreme Court has repeatedly told lower courts that because “the penalty
of death is qualitatively different” than any other penalty and to
uphold “the fundamental respect for humanity underlying the Eighth
Amendment,” a sentencing court must considering as a mitigating factor
“any respect of a defendant’s character” as a basis for a sentence less
As a result, in the sentencing
portion of trials where a prisoner has been convicted of a capital
crime, inmates often offer last-gasp testimony to save their skins that
stands in stark contrast to the offenses that landed them in court.
Illinois torture-murderer James
Tenner is one such defendant.
After he was convicted of murdering two people, kidnapping a third and
attempting to kill a fourth, Tenner, who was 43 years old at the time,
called a jail guard to the stand as a mitigating witness who testified
that Tenner was “a peaceful influence” in his cellblock and helped
resolve quarrels between other inmates.
Perhaps that was true (it didn’t
hold sway with the jury), but when one looks at what put Tenner in the
dock in the first place, it is hard to believe.
Tenner owned a trucking company
that was in competition with one owned by a former business partner
Albert Sauls. Relations with the two men might have been strained, but
in at the end of 1987, they shared a garage on Chicago’s South Side.
Tenner’s “peaceful” nature
certainly wasn’t on display on September 2, 1987 when he showed up at
the garage where Albert Sauls and an employee, Alvin Smith, were working
on a truck. It was after business hours and the two men were joined at
the garage by Sauls’s wife, Donna, and Shirley Garza, who had once dated
Tenner and was friends with the Sauls.
Finishing up his work, Smith was
leaving the garage when he was confronted by Tenner, who forced him back
Tenner’s account of why he was
forced to take the actions he did and the testimony of surviving
witnesses differ greatly. According to Tenner, he said he was going by
the garage when he saw Garza struggling with someone.
Garza and Tenner met at a doughnut
shop in early 1987 and began a romantic relationship. By April, they
were living together.
In July, according to Tenner,
Garza told him that the Sauls had held her captive and forced her to
engage in sexual activities against her will. A month later, Tenner
said, he overheard the Sauls plotting to kill him.
During that summer, Tenner and
Garza’s relationship failed and his business experienced difficulties.
He decided to close his trucking firm and return to Rockford, where he
had an estranged wife.
Tenner told the jury at his trial
seeing Garza allegedly struggling with someone at the garage made him
afraid and he reacted.
Garza, who survived being
kidnapped by Tenner, testified that first of all, she never told Tenner
that she had been a sexual hostage of the Sauls and that on the evening
in question, there was no struggle at the garage — except the one caused
later by Tenner.
Regardless, Tenner confronted
Alvin Smith outside the garage and forced him back inside at gunpoint.
Holding the group at bay with a
shotgun, Tenner told everyone to lie on the floor. He handed lengths of
clothesline to Donna Sauls and Garza and ordered them to tie the hands
of Albert Sauls and Smith.
Next, he gave Garza additional
line and ordered her to tie Donna Sauls in the same manner.
Tenner herded the group (one
witness testified that everyone “hobbled”) over to his side of the
garage where three ropes of different lengths were suspended from a
ceiling beam. At the end of each rope was a noose. The other end was
tied to the garage wall.
At Tenner’s command, the Sauls and
Smith stood under the noose corresponding to their height. Garza, again
at Tenner’s direction, placed the nooses around the captives’ necks.
Next, Tenner produced another
rope, tied a noose for Garza, threw the line over the beam and tied it
to the wall. He placed the noose around her neck and bound her hands and
With his victims secured, Tenner
moved on to the next step in his plan. He taped their mouths shut with
For the next 2-and-a-half hours,
Tenner berated his captives about how they had “meddled” in his business
by associating themselves with his girlfriend. He then told them that he
was going to kill them.
As if he was conducting some kind
of trial, Tenner then removed the duct tape from their mouths so that
his victims could respond to his “charges.”
With the Sauls and Smith still
bound and restrained by the nooses, Tenner freed Garza and took her into
an office area where he demanded that Garza look for a handgun he had
hidden there. She was unable to find it. After they emerged, he shoved
the crying Garza into his station wagon and returned to the garage,
where he shot Donna Sauls in the face at point-blank range.
Tenner moved on to Smith and
killed him. By this time, Albert Sauls had managed to free his hands and
was attempting to remove the noose from his neck when Tenner shot him
twice. Albert’s hands managed to absorb enough of the blast to allow him
Tenner fled the garage in his car
with Garza as a hostage. As they drove toward O’Hare airport, she asked
him what had happened inside the garage. He replied, “I did what I told
you I was going to do and you’re next.”
Meanwhile, Albert Sauls untied the
other end of the rope from the wall and crawled to a nearby house, where
he summoned help.
Around midnight, Illinois troopers
stopped Tenner, his ex-wife and his terrified hostage on the Northwest
Tollway and he was taken into custody.
A jury convicted him of the first
degree murders of Donna Sauls and Alvin Smith, of the attempted first
degree murder of Albert Sauls, of the aggravated unlawful restraint of
Shirley Garza, Alvin Smith, Donna Sauls, and Albert Sauls, and of armed
violence with respect to Albert Sauls.
During his sentencing hearing,
Tenner asked the jury to show mercy, offering evidence that “he had
redeeming human qualities,” the Seventh Circuit Court of Appeals wrote.
“For example, he presented the testimony of a prison guard to the effect
that Tenner was a peaceful influence who helped resolve quarrels among
other inmates, did not join fights, and helped keep the unit clean.”
Tenner was sentenced to die, but
eventually had his sentence commuted to life when Illinois re-evaluated
its death penalty sentencing procedure amid allegations of
irregularities in the 1990s.
U.S. 7th Circuit
Court of Appeals
James Tenner, Petitioner-Appellant,
Jerry Gilmore, Warden, Pontiac Correctional Center,
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 97 C 2305--Charles P. Kocoras, Judge.
Argued April 7, 1999--Decided June 9, 1999
Before Easterbrook, Ripple, and Rovner, Circuit
Easterbrook, Circuit Judge.
Convicted of two capital murders and sentenced to
death, James Tenner seeks a writ of habeas corpus. Believing that
his former business partner Albert Sauls had alienated the
affections of his former girlfriend Shirley Garza, Tenner planned
and carried out an execution. Sauls and Tenner operated trucking
businesses from the same building in South Chicago Heights.
In his space Tenner set up three ropes and nooses,
each just the right height for the neck of the intended victim. Then
with shotgun in hand he invaded the adjoining premises, finding (as
he expected) Sauls and his employee Alvin Smith. He held the two at
bay until Garza and Donna Sauls, Albert's wife, arrived.
Tenner directed Garza and Donna Sauls to bind the
men hand and foot; when that had been accomplished, Tenner compelled
Garza to bind Donna Sauls the same way. All four moved to Tenner's
garage, where the three bound victims were restrained in the nooses
designed for them. Tenner then tied up Garza and constructed a
fourth noose for her.
After covering his victims' mouths with duct
tape, Tenner delivered a harangue (lasting more than two hours)
about the victims' supposed misconduct regarding both his business
and his personal life, and the Saulses' treatment of Garza. Tenner
then moved Garza to his office and returned to shoot the three
remaining victims in their faces at point-blank range.
Smith and Donna Sauls died instantly. Albert
Sauls had been able to free his hands and used his arms to shield
his face; he was left for dead but survived and testified against
Tenner at trial. So did Garza, who was rescued by police after
Tenner kidnapped her and drove off.
Testifying on his own behalf, Tenner conceded
that he prepared the ropes and shot the victims; his defense was
that he sought to protect Garza from the Saulses and therefore
committed second rather than first degree murder.
Tenner's convictions and sentence were affirmed
on direct appeal. People v. Tenner, 157 Ill. 2d 341, 626 N.E.2d 138
(1993). A collateral attack in state court was unsuccessful. People
v. Tenner, 175 Ill. 2d 372, 677 N.E.2d 859 (1997). The district
judge rebuffed Tenner's federal collateral attack. Tenner v. Gilmore,
1998 U.S. Dist. Lexis 16188 (N.D. Ill. 1998). In this court Tenner
presents many contentions, with multiple subparts. Most can be
resolved with no analysis beyond citations to Holman v. Gilmore, 126
F.3d 876 (7th Cir. 1997), and Gosier v. Welborn, No. 98-2806 (7th
Cir. Apr. 15, 1999).
Four require discussion, but to obtain relief
Tenner must demonstrate that the Supreme Court of Illinois made "a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States". 28 U.S.C. sec.2254(d)(1).
This is the standard of the Antiterrorism and Effective Death
Penalty Act, which applies because Tenner filed his federal petition
after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320 (1997).
1. The Supreme Court of Illinois reversed
Tenner's conviction for the attempted murder of Albert Sauls,
because the judge gave a confusing response to a question the jury
posed during its deliberations. 626 N.E.2d at 155. This set up an
argument that the convictions for first degree murder of Donna Sauls
and Alvin Smith also should be reversed.
According to the instructions, the jury could
convict of first degree murder if it found that Tenner fired the
fatal shots and that any one of four other conditions obtained: that
Tenner intended the victims' deaths; that his acts created a strong
probability of death; that the deaths occurred in the course of
aggravated unlawful restraint (activating the felony-murder
doctrine); or that Tenner attempted to murder Albert Sauls (another
The jury returned general verdicts and therefore
did not reveal which one or more of these four circumstances it had
found. Tenner argued that the jury might have relied exclusively on
the attempt to murder Albert Sauls. With that conviction gone, the
argument ran, the others fell automatically. The state judiciary did
With respect to Alvin Smith and Donna Sauls, the
jury returned general verdicts finding the defendant guilty of their
murders. A "general finding of guilty is presumed to be based on any
good count in the indictment to which the proof is applicable. [Citations.]"
(People v. Lymore (1962), 25 Ill. 2d 305, 307-08, 185 N.E.2d 158.)
Thus, even if the defendant's conviction for
attempted murder is reversed, which means that he could not have
been found guilty of felony murder based on that offense, his
convictions for murder may still stand. There were other good
charges of murder to which the proof was applicable: first degree
intentional murder, first degree murder based on acts creating a
strong probability of death, and felony murder based on aggravated
unlawful restraint. As no challenge has been made to these three
theories of the offense, there is no need to reverse the defendant's
convictions for first degree murder.
626 N.E.2d at 155 (citations omitted; brackets in
original). Tenner now contends that Lymore, which allows a verdict
to stand if the proof supports any theory of guilt, is inconsistent
with federal law exemplified by Griffin v. United States, 502 U.S.
46 (1991), and Yates v. United States, 354 U.S. 298 (1957) (overruled
on other grounds by Burks v. United States, 437 U.S. 1 (1978)).
Griffin and Yates deal with cases in which one
theory of culpability is flawed while another is sound, and the jury
does not reveal which theory it adopted. In one set of cases the
flaw is legal. A jury may be told, for example, that the law forbids
the doing of either A or B, and the verdict shows that the jury
found that the defendant did one of these things, but not which. If
one of the two is not a crime, Yates concludes, a new trial must be
held. For all the court can tell, the jury found that the defendant
committed the act that the law does not condemn.
In the other set of cases the flaw is in the
proof. The jury is told correctly that the law forbids the doing of
either A or B, and the record permits a rational trier of fact to
find that the defendant did A, but it does not permit a conclusion
that he did B. In these cases, Griffin holds, the verdict is sound.
A reviewing court should assume that the jury found that the
defendant committed the act that the facts support; anything else
would attribute irrationality to the jury. Juries apply to the facts
of the case the law articulated by the judge. Courts assume that
juries can distinguish good proof from bad, but juries do not
separate good law from bad. That's the line between Yates and
When the facts could justify a conclusion that
the defendant did both A and B, but only A is illegal, a court has
no reason to believe that the jury found A, and a new trial ensues.
Tenner contends that his case fits the Yates pattern rather than the
Griffin pattern and that the Supreme Court of Illinois failed to
appreciate the difference between these situations. As he sees it,
the attempted murder charge was factually supported but legally
erroneous, so that a well-functioning jury might well have convicted
him of murder because it believed that he shot Donna Sauls and Alvin
Smith (not intending to kill either one) in the course of attempting
to kill Albert Sauls.
Tenner's description is not quite right. The
attempted murder charge was not legally defective; the law of
Illinois proscribes attempted murder. Only a garble in the judge's
response to a question from the jury during deliberations spoiled
the conviction. This fluff did not affect the instructions on the
murder charges. Let us assume, nonetheless, that the situation is
close enough to Yates as to fall within its gravitational influence.
That raises the question whether the distinction between factual and
legal shortcomings is one of constitutional law, binding on state as
well as federal courts. Both Griffin and Yates were direct appeals
in the federal system. Yet we need not decide whether these cases
clearly establish a rule of constitutional law, as opposed to sound
practice, because Tenner can not prevail either way.
Recall the point of Griffin: a jury may be relied
on to get the facts right and avoid logical errors. If that is so,
then the murder verdicts are unassailable. Trussing up four people,
putting their heads in nooses, binding their mouths with duct tape,
and forcing them to listen to a tirade laced with promises of their
imminent deaths-- conduct that Tenner admitted on the witness
stand-- meets anyone's definition of aggravated unlawful restraint.
The jury convicted Tenner of four counts of this
crime, which makes the killings first-degree murder under the felony-murder
doctrine even if the jury believed (what is exceptionally unlikely)
that Tenner did not intend the death of Donna Sauls or Alvin Smith.
The four convictions for unlawful aggravated restraint are the
equivalent of a special verdict by the jury, identifying a
circumstance that supports a first-degree murder conviction. Special
verdicts avoid the Yates problem, because the court then can be
confident that the facts as the jury believed them to be are a
legally proper basis of conviction.
Asked at oral argument why the convictions for
unlawful restraint do not show that the murder verdicts are reliable,
Tenner's counsel replied that the jury may have rendered a
compromise verdict or disregarded the unlawful restraint convictions
and relied only on the attempted murder conviction. Yet why should
we attribute random or irrational conduct to this jury? If that were
appropriate, then Griffin should have come out the other way--for it
is possible that the jury in Griffin convicted the defendants on the
factually deficient theory while finding against the prosecutor on
the one supported by the evidence. What Griffin holds is that
perverse factfinding should not be attributed to juries. Sure, it is
possible; in a large enough sample of cases weird things are bound
to happen. But verdicts are not annulled just because illogical
behavior might have occurred.
A jury that found aggravated unlawful restraint
based on Tenner's confession in open court--a confession
corroborated by the physical evidence and the testimony of the two
survivors--would have been out of its mind to forget about the
restraint and convict Tenner of murder based only on the attempted-murder
charge. For that to happen, the jury would have had to conclude that
Tenner did not intend to kill either Donna Sauls or Alvin Smith,
that shotgun blasts in the face at close range do not create a
strong probability of death, and that Tenner did not unlawfully
restrain any of the four victims, contradicting the rest of its
verdicts. Few things in litigation are as certain as the conclusion
that the murder verdicts in Tenner's case were supported by the law
and the evidence. Griffin rather than Yates rules the day here.
2. More than three years after his trial, Tenner
was examined by a psychiatrist in connection with the post-conviction
proceedings in state court. Dr. Lyle Rossiter concluded that Tenner
suffers from a "thought disorder" that "grossly impairs his ability
to communicate in a manner that allows [his post-conviction] counsel
to ascertain the basis, if any, for a complaint that he has been
deprived of his constitutional rights [at trial]."
This conclusion forms the basis for Tenner's
contention that he was not competent to stand trial. If he could not
communicate effectively with counsel in 1995, during the post-conviction
proceedings, then he could not have communicated effectively during
trial; and ability to assist in one's defense is undermined by
inability to communicate. The constitutional question is whether the
accused had "a reasonable degree of rational understanding [and] a
rational as well as factual understanding of the proceedings against
him." Godinez v. Moran, 509 U.S. 389, 396 (1993). See also Drope v.
Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375
(1966); Dusky v. United States, 362 U.S. 402 (1960); United States
v. Grimes, No. 98-1828 (7th Cir. Apr. 19, 1999); Eddmonds v. Peters,
93 F.3d 1307 (7th Cir. 1996). Inability to communicate with counsel
may affect this understanding.
Rossiter also concluded that Tenner suffers from
a paranoid delusional disorder, marked by the imputation of
malevolent motives to others. Although Dr. Rossiter did not conclude
that this rendered Tenner insane at the time of the crime (or trial),
his current lawyers contend that paranoia would have compounded the
difficulty in communicating with or assisting his trial counsel.
Trial testimony by both Albert Sauls and Shirley
Garza describes Tenner as ranting, sometimes incoherently, during
the hours while the victims were bound prior to the shootings.
Interview notes show that Tenner told his trial lawyer that he heard
voices during 1981 (six years before the crimes) and "while in
custody." All of this calls into question Tenner's ability to
understand the proceedings and assist in his defense at trial,
according to his current lawyers. But the district judge declined to
hold a factual hearing on this subject, ruling that the facts
available to the state trial judge would not have created a
substantial doubt about Tenner's competence.
This way of phrasing the question is important.
The record certainly contains evidence that Tenner has mental
problems. But people who suffer from paranoia display "different
levels of skill and understanding at different times. . . . Persons
afflicted by paranoia often are intelligent and skillful." Gosier,
slip op. 8. What was Tenner's level of understanding and cooperation
near the time of his trial? More to the point, what should the trial
judge have understood about this issue? Tenner's current lawyers
want us to look principally at Dr. Rossiter's evaluation, but this
was not available to the trial judge. "Only when the facts at the
time of trial create a bona fide doubt about an accused's fitness is
a hearing required." Gosier, slip op. 5 (emphasis in original).
Hindsight does not entitle a federal court to upset the result of a
state proceeding that was conducted in a fundamentally fair manner.
To justify an evidentiary hearing at trial to
explore the possibility of incompetence to stand trial, a defendant
must produce "clear and convincing evidence [raising] threshold
doubt about his competency." Nguyen v. Reynolds, 131 F.3d 1340, 1346
(10th Cir. 1997), quoting from Lokos v. Capps, 625 F.2d 1258, 1261
(5th Cir. 1980); see also Grimes, slip op. 2-3; Walker v. Attorney
General of Oklahoma, 167 F.3d 1339, 1342-47 (10th Cir. 1999). Cf.
Cooper v. Oklahoma, 517 U.S. 348 (1996) (preponderance standard
governs the decision once competence has been drawn into question).
The Supreme Court of Illinois concluded that Tenner had not
demonstrated the threshold doubt about competence. It observed:
Nothing in the defendant's record or personal
history disclosed any history of mental illness or emotional
disturbance; there was nothing to prompt a separate inquiry into the
defendant's mental condition. In rejecting this portion of the
defendant's post-conviction petition, the judge below, who had also
presided at trial, explained:
"There was nothing to suggest a psychiatric exam
in this young Defendant's background. If there had been anything
that would have suggested [a] psychiatric exam, I probably would
have ordered it sua sponte. I've been known to do that to satisfy
myself as to the mental competency of a defendant in front of the
bench. There's none of that in this record."
677 N.E.2d at 864. Although the state court wrote
this when assessing Tenner's argument that failing to obtain an
earlier psychiatric assessment was ineffective assistance of counsel,
it is equally apropos to the competence issue. And under sec.2254(d)
this finding--that nothing suggested to the trial judge that Tenner
had any mental problem (beyond the kind of problem implied by the
nature of the offense)--blocks collateral review unless it "was
contrary to, or involved an unreasonable application of, clearly
established 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." We do not think that the state court's assessment is
either an unreasonable understanding of the facts or an unreasonable
application of the law.
This is the sort of issue on which the legal
change made by the AEDPA matters. The parties do not debate the
legal standards; they were established in cases such as Drope and
Pate. It involves, rather, the application of law to the facts of a
particular case. "[W]hen the dispute lies not in the meaning of the
Constitution, but in its application to a particular set of facts--
when it is, in the standard phrase, a 'mixed question of law and
fact'--sec.2254(d)(1) restricts the grant of collateral relief to
cases in which the state's decision reflects 'an unreasonable
application of' the law. . . . [W]hen the constitutional question is
a matter of degree, rather than of concrete entitlements, a 'reasonable'
decision by the state court must be honored." Lindh v. Murphy, 96
F.3d 856, 870-71 (7th Cir. 1996) (en banc), reversed on other
grounds, 521 U.S. 320 (1997). (Our decision on remand in Lindh shows
how the AEDPA mattered. Applying the de novo review under pre-AEDPA
law, we disagreed with the state courts' application of law to the
facts of that case and issued the writ. Lindh v. Murphy, 124 F.3d
899 (7th Cir. 1997).)
Did the Supreme Court of Illinois act
unreasonably in concluding that the trial judge lacked a good reason
to doubt Tenner's mental soundness? We think that its assessment was
eminently reasonable. Even now, Tenner's able counsel do not point
to any circumstance beyond the facts of the crime itself that should
have alerted the judge to any problem. The judge had ample
opportunity to evaluate Tenner, not only in pretrial proceedings but
also during his testimony. Tenner responded intelligently to
questions posed by his lawyer (and those during cross-examination by
His testimony was lucid and suggested an
understanding of the legal process and the nature of the charges
against him. See Grimes, slip op. 2-3. Tenner now relies principally
on a psychiatric evaluation that came long after trial--and even
this evaluation is of little use, for Dr. Rossiter did not offer an
opinion about Tenner's ability to understand the proceedings or
assist his lawyer at the time of trial. Rossiter concluded that
Tenner had little understanding of, or ability to assist his post-trial
counsel with, constitutional issues. That's true of most entirely
competent defendants; indeed, many graduates of law school have
trouble with constitutional questions from time to time. Rossiter
did not suggest that Tenner was unable to understand the charges
laid against him or to assist in a defense against them. That is the
critical issue; so even with the benefit of hindsight it is not
possible to condemn the state court's approach as "unreasonable."
3. Tenner asked the jury to show mercy during the
sentencing phase, adducing evidence that he had redeeming human
qualities. For example, he presented the testimony of a prison guard
to the effect that Tenner was a peaceful influence who helped
resolve quarrels among other inmates, did not join fights, and
helped keep the unit clean. Tenner wanted to present the testimony
of Eric Stokes, another guard, expecting it to be similarly helpful.
He had a constitutional right to present this testimony in
mitigation. Hitchcock v. Dugger, 481 U.S. 393 (1987).
But Stokes did not show up to testify, and
Tenner's lawyer did not ask the court to enforce the subpoena. In
post-conviction proceedings Tenner argued that the prison had a
policy against testimony by guards, but the state court was not
impressed. It observed that Tenner had not established the existence
of this supposed policy, that the appearance of another guard
undercut the assertion that the warden had any such policy, and that
judges rather than wardens determine who is to testify. 677 N.E.2d
at 868- 69. The court added that Tenner could not establish
prejudice in any event, for he "has provided no written offer of
proof of what the witness in question would have testified to." Ibid.
Because the state court resolved this claim
without invoking a rule of forfeiture--despite Tenner's failure to
ask the trial judge to enforce the subpoena, and despite his
omission of this issue on direct appeal--we too must address the
merits. Harris v. Reed, 489 U.S. 255 (1989). Tenner contends that
Stokes' failure to appear enabled the prosecutor to paint the guard
who had testified as a disgruntled employee who was helping Tenner
only out of dissatisfaction with her superiors.
Testimony from a second guard would have undercut
this response, the argument goes. But would it? We can't evaluate
the possibility without knowing what testimony Stokes would have
given. The Supreme Court of Illinois pointedly remarked on the
absence of an offer of proof. Tenner did not use the federal
proceedings as an opportunity to repair the deficiency. Like the
state court, we have no idea what Stokes would have said or how that
testimony would have affected the prosecutor's closing argument.
Perhaps Tenner's lawyer let the subject pass at trial precisely
because he did not expect Stokes' testimony to be helpful and valued
the events more as a possible claim of error.
What his lawyer may have had in mind is
unimportant, however. Section 2254(d) tells us that collateral
relief must be denied unless the state court's decision "was
contrary to, or involved an unreasonable application of, clearly
established 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." The state court's demand that Tenner make an offer of
proof in order to establish prejudice was neither contrary to
clearly established federal law nor an unreasonable evaluation of a
4. Ineffective assistance of counsel is the final
issue we discuss. Tenner complains about his lawyer's decision not
to secure psychiatric evaluations in order to explore the
possibility of an insanity defense (or to use his mental condition
as a mitigating factor in sentencing). He contends that his lawyer
erred by failing to give the pretrial notice necessary before
relying on a claim of self-defense.
Finally, he submits that counsel fell below
professional standards by conceding that Tenner unlawfully
restrained his victims. The Supreme Court of Illinois carefully
analyzed these and related contentions, both on direct appeal, 626
N.E.2d at 153-54, and on collateral review, 677 N.E.2d at 862-68.
None of that court's analysis can be condemned as "contrary to, or .
. . an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or . . .
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28 U.S.C. sec.2254(d).
Although the meaning of sec.2254(d) as applied to
ineffective- assistance claims is now before the Supreme Court, see
Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998), cert. granted, No.
98-8384 (April 5, 1999), we do not think that the Court's selection
from among the interpretations can make a difference to Tenner, who
loses under any plausible approach to sec.2254(d). See also Ashford
v. Gilmore, 167 F.3d 1130, 1134-35 (7th Cir. 1999) (discussing how
sec.2254(d) applies to ineffective-assistance claims in this circuit).
Arguments concerning a possible mental evaluation are related to the
question whether Tenner was competent to stand trial and do not
require additional analysis when seen through the lens of an
ineffective-assistance claim. Of the many errors that Tenner's
current lawyers lay at the doorstep of his former ones, only one
calls for comment.
At trial, Tenner's lawyer conceded the unlawful-
restraint charge as part of a plan to argue that the jury should be
charged on second-degree murder as a lesser included offense (and
one that would avoid exposure to the death penalty). A conviction
for second-degree murder is proper if the killer acted "under a
sudden and intense passion resulting from serious provocation by the
individual killed or another whom the offender endeavors to kill" or
if "[a]t the time of the killing he believes the circumstances to be
such that, if they existed, would justify or exonerate the killing
under the principles stated in Article 7 of this Code, but his
belief is unreasonable." 720 ILCS 5/9-2(a).
Tenner testified that he believed that the
Saulses had taken Garza captive and were using her as a sex slave,
and that he acted to defend her. Although Garza testified that the
Saulses had not done anything untoward, Tenner asserted that his
belief was genuine and mitigated the offense even if held
unreasonably. He could not use the supposed relationship between
Garza and the Saulses as a defense without explaining what he had
done in response, so he essentially admitted all of the
prosecution's factual allegations while denying that he acted with
the mental state the prosecution attributed to him.
The strategy did not succeed: the trial judge
declined to give a second-degree-murder instruction, a decision
vindicated on appeal, 626 N.E.2d at 151-53, because Tenner's
testimony established that he did not act under intense passion:
preparation of the nooses showed that his acts were calculated.
Moreover, the unreasonable-belief-in- justification defense is
unavailable to aggressors, the court held. One who acts as a
vigilante when it is easy to seek aid from the police cannot claim
mitigation. Cf. United States v. Haynes, 143 F.3d 1089 (7th Cir.
Having lost the fight for a second-degree-murder
instruction, Tenner switched grounds and insisted that the battle
should not have been waged. He chastised his former lawyer for
thinking that it was even conceivable that a lesser-included-
offense instruction could have been obtained; and if that was
impossible, then silence would have been the best defense. The
Supreme Court of Illinois responded:
The State had overwhelming proof of the
defendant's commission of the acts involved here, including the
testimony of two persons present throughout the offenses. Given the
strength of that evidence, counsel could have reasonably concluded
that the best option was to attempt to portray the defendant's
conduct as the result of sudden and intense passion resulting from
provocation or an unreasonable belief in the need for self- defense,
which, under either theory, would establish second degree murder.
That the trial judge ultimately refused to
instruct the jury on either form of second degree murder does not
demonstrate that counsel acted unreasonably in pursuing this line of
defense. Nor can it be said that the presentation of this theory was
useless. By portraying the defendant's actions as the result of
provocation or an unreasonable belief in self-defense, counsel could
attempt to evoke sympathy for the defendant in the minds of the
jurors, which might possibly have led to imposition of a sentence
other than death. For these reasons, we do not believe that trial
counsel was deficient in this choice of strategy, or that the
defendant was prejudiced by it.
677 N.E.2d at 866-67 (citation omitted). The
state court thus found that counsel's performance was adequate and
that there was no prejudice from any inadequacy. See Strickland v.
Washington, 466 U.S. 668 (1984). We bypass the former possibility
and say only that we agree with the latter: Tenner has not
Tenner and his lawyer were in a fix. Two dead
bodies were found in Tenner's business premises. Ballistics tests
established that the murder weapon was Tenner's. Nooses hanging from
a beam showed preparation. Albert Sauls and Shirley Garza testified
for the prosecution and related not only Tenner's acts but also the
suffering the victims endured while confined more than two hours
with their necks in nooses, waiting to die. What was counsel to do?
Outright denial of the accusations would accomplish little other
than lead the jury to conclude that Tenner was a liar as well as a
Even a multiple murderer can fall in a jury's
estimation (and thus take a greater risk of capital punishment) by
coming across as an unrepentant, perjurious, multiple murderer. Was
it not better to admit the obvious and give some explanation in the
hope that at least one juror might think it good enough to avoid
execution? Let us suppose that counsel fell below professional
standards in thinking that a second-degree-murder instruction could
be secured. Still, how was Tenner harmed by the effort? He had no
defense other than his claim of justification. Tenner's current
lawyers assume that a good lawyer must be able to find some resource
for every accused, no matter what the evidence shows. Not so. Some
crimes are so heinous, and so well documented, that there is little
to be done for the defendant. This is one of those crimes.
Docket No. 90394-Agenda 2-May 2002.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
JAMES H. TENNER, Appellant.
JUSTICE FITZGERALD delivered the
opinion of the court:
The defendant, James Tenner, appeals a Cook County
circuit court order dismissing his second post-conviction petition
without an evidentiary hearing. Because the defendant was sentenced to
death, his appeal lies directly to this court. See 134 Ill. 2d R.
On January 10, 2003, while the defendant's petition
for rehearing was pending, former Governor George Ryan commuted the
sentences of all Illinois death row inmates, including the defendant, to
life imprisonment without the possibility of parole or mandatory
supervised release. The defendant's appeal primarily concerns his
competency at trial and sentencing. This appeal survives the commutation
order because fitness would remain an issue regardless of the penalty
imposed upon the defendant. For the reasons that follow, we affirm.
The defendant and Albert Sauls worked
together in various businesses throughout the 1970s. By the mid-1980s,
the defendant and Sauls each operated his own trucking company, sharing
a garage in South Chicago Heights.
On the evening of September 2, 1987,
Sauls and his employee, Alvin Smith, returned to the garage after work
and started repairs on one of Sauls' trucks. Sauls' wife, Donna, and the
defendant's former girlfriend, Shirley Garza, soon arrived at the garage.
Later, as Smith left the garage, he
was met outside by the defendant carrying a loaded shotgun. The
defendant forced Smith back into the garage and, once inside, ordered
Smith, Sauls, and Sauls' wife to lie on the floor. The defendant
instructed Garza to tie their wrists and ankles.
The defendant then directed everyone
to his side of the garage where he had strung three nooses over a beam.
He told Garza to place a noose around the necks of Smith, Sauls, and
Sauls' wife, and he tied another noose for Garza.
With his victims incapacitated, the
defendant proceeded to harangue them for more than two hours,
complaining that Sauls and his wife had interfered with his relationship
with Garza. The defendant released Garza and sent her outside the garage.
The defendant then shot Donna Sauls in
the head and Smith in the abdomen at point-blank range. Both died. The
defendant also shot Albert Sauls in the face; he survived.
In 1990, the defendant was convicted
of two counts of first degree murder, one count of attempted first
degree murder, four counts of aggravated unlawful restraint, and one
count of armed violence; he was sentenced to death.
On direct appeal, we vacated the defendant's
attempted first degree murder conviction, affirmed his other convictions,
and affirmed his death sentence. See People v. Tenner, 157 Ill.
2d 341 (1993). The United States Supreme Court denied the defendant's
petition for writ of certiorari. See Tenner v. Illinois,
512 U.S. 1246, 129 L. Ed. 2d 882, 114 S. Ct. 2768 (1994).
In 1994, the defendant filed his first post-conviction
petition, alleging, inter alia, that his trial attorneys were
ineffective for failing to obtain a psychiatric evaluation of the
defendant. The defendant asserted that such an evaluation would have
provided evidence to support an insanity defense at trial or a
mitigating factor at sentencing.
The defendant relied upon a 1994 report from Dr. Lyle
Rossiter, Jr., an expert consulted by his post-conviction attorney. Dr.
Rossiter's report summarized his opinions "regarding the question of
whether there is a significant likelihood that James Tenner was
suffering from a state of mental and emotional distress at the time of
his September 2, 1987, offense sufficient to warrant a psychiatric
evaluation for an insanity defense or factors in mitigation."
Dr. Rossiter stated that the defendant was in "a
highly irrational state caused by a paranoid delusional disorder" on
that date and that the defendant "continues to suffer from a less
obvious but severe mental disorder which significantly impairs his
ability to communicate with [post-conviction] counsel."
According to Dr. Rossiter, this
disorder is characterized by "vague, evasive, illogical, oppositional
and self-contradictory communications and thought processes about his
mental state at the time of the offense and about his current
participation in post-conviction proceedings."
Dr. Rossiter concluded: "[I]t is my opinion that his
original attorney's failure to have him psychiatrically examined for an
insanity defense or for psychiatric factors in mitigation may represent
ineffective assistance of counsel, and that Mr. Tenner is now impaired
in his ability to assist present counsel in that determination."
In a supplemental petition, the defendant also
alleged that a pretrial psychiatric evaluation would have enabled his
trial attorneys to make an informed decision "[w]hether a bona fide
doubt existed as to the defendant's fitness to cooperate with counsel
and thus to stand trial, a doubt which appears to exist in light of Dr.
Rossiter's evaluation and conclusion." The trial court dismissed the
petition without an evidentiary hearing, and the defendant appealed to
We affirmed. See People v. Tenner, 175 Ill.
2d 372 (1997). We rejected the defendant's argument that defense
counsel's performance was deficient:
"This is not a case in which counsel wholly failed to
investigate the defendant's background prior to trial or sentencing.
Here, defense counsel retained a mitigation expert, who conducted an
investigation into the defendant's personal history, though counsel
later decided not to call that person as a witness either at trial or at
sentencing. Nothing in the record at that time, however, suggested that
the defendant suffered from any mental impairment, or that there was any
need to pursue a separate inquiry into the defendant's mental condition.
Nothing in the defendant's record or
personal history disclosed any history of mental illness or emotional
disturbance; there was nothing to prompt a separate inquiry into the
defendant's mental condition. In rejecting this portion of the
defendant's post-conviction petition, the judge below, who had also
presided at trial, explained:
'There was nothing to suggest a psychiatric exam in
this young Defendant's background. If there had been anything that would
have suggested [a] psychiatric exam, I probably would have ordered it
sua sponte. I've been known to do that to satisfy myself as to
the mental competency of a defendant in front of the bench. There's none
of that in this record.'
Like the judge below, we do not believe that counsel
acted unreasonably in failing to obtain a mental evaluation of the
defendant prior to trial." Tenner, 175 Ill. 2d at 380-81.
We further held that even if the defense counsel's
performance had been deficient, the defendant suffered no prejudice.
Tenner, 175 Ill. 2d at 381. We stated:
"The defendant does not claim that he was insane at
the time of the offenses involved in this case, and the defendant has
failed to show that a mental evaluation would have revealed evidence
that could have resulted in his acquittal on grounds of insanity.
Notably, Dr. Rossiter did not find that the defendant was insane when he
committed the present offenses. Although Dr. Rossiter believed that the
defendant was delusional at the relevant time, Dr. Rossiter did not
conclude that the defendant was insane." Tenner, 175 Ill. 2d at
The Supreme Court denied the defendant's second
certiorari petition. See Tenner v. Illinois, 522 U.S. 892,
139 L. Ed. 2d 163, 118 S. Ct. 231 (1997).
The defendant then filed a 38-claim
petition for writ of habeas corpus in the United States
District Court for the Northern District of Illinois. The federal
district court denied the defendant relief in a lengthy unpublished
order. See United States ex rel. Tenner v. Gilmore, No. 97 C
2305 (N.D. Ill. October 8, 1998).
The defendant's habeas corpus petition does
not appear in the record before us, so we cannot determine precisely
what the defendant alleged. According to the district court, the
defendant's "first two claims" charged that his constitutional rights
were violated because a bona fide doubt about his mental
competence existed, but the state trial court did not hold a fitness
The district court rejected the State's argument that
these claims were procedurally defaulted because the defendant raised
them in his post-conviction petition only through his ineffective
assistance of counsel claim: "the general rule that claims not raised in
state proceedings are *** barred does not apply to substantive mental
competency claims." The district court then turned to the merits of the
defendant's competency "claim" and held:
"After reviewing the record in this case, we find no
merit in Tenner's competency claim. Although the circumstances
surrounding the crime were irrational and bizarre, that alone cannot be
equated with mental incompetence. [Citation.] Tenner has no prior
history of mental illness and there is no evidence of past
hospitalizations or treatment for a mental disorder. ***
Tenner did not exhibit any irrational behavior or
unusual behavior during pretrial proceedings or at trial. At trial, his
testimony was lucid and he understood and testified consistent with his
trial strategy, which was to establish that he was guilty of only second
degree murder, a noncapital offense. *** It is clear that Tenner
participated actively and meaningfully in the adversarial process and
that he was fit to do so."
The district court reviewed the
evidence offered by the defendant, including Dr. Rossiter's 1994 report,
and rejected the defendant's assertion that a "thought disorder"
characterized by various qualities exhibited by the defendant-vagueness,
evasiveness, guardedness, opposition-rendered him unable to understand
the charges against him or to assist in his defense.
The district court observed, "Such characteristics
are not so atypical of one who has led a peaceful life but suddenly
finds himself as the perpetrator of gruesome murders." The district
court concluded that the trial court entertaining the defendant's first
post-conviction petition was not unreasonable in concluding that Tenner
was competent to stand trial and that a fitness hearing was unnecessary.
The United States Seventh Circuit Court of Appeals
affirmed. See Tenner v. Gilmore, 184 F.3d 608 (7th Cir. 1999).
The court of appeals noted that, though our comment that nothing in the
record should have prompted an inquiry into the defendant's mental
condition was made in the context of an ineffective assistance of
counsel claim, "it is equally apropos to the competence issue."
Tenner, 184 F.3d at 614. The court of appeals continued:
"Did the Supreme Court of Illinois act
unreasonably in concluding that the trial judge lacked a good reason to
doubt Tenner's mental soundness? We think that its assessment was
eminently reasonable. Even now, Tenner's able counsel do not point to
any circumstance beyond the facts of the crime itself that should have
alerted the judge to any problem.
The judge had ample opportunity to evaluate Tenner,
not only in pretrial proceedings but also during his testimony. Tenner
responded intelligently to questions posed by his lawyer (and those
during cross-examination by the prosecutor). His testimony was lucid and
suggested an understanding of the legal process and the nature of the
charges against him. [Citation.]
Tenner now relies principally on a psychiatric
evaluation that came long after trial-and even this evaluation is of
little use, for Dr. Rossiter did not offer an opinion about Tenner's
ability to understand the proceedings or assist his lawyer at the time
of trial. Rossiter concluded that Tenner had little understanding of, or
ability to assist his post-trial counsel with, constitutional issues.
That's true of most entirely competent defendants; indeed, many
graduates of law school have trouble with constitutional questions from
time to time. Rossiter did not suggest that Tenner was unable to
understand the charges laid against him or to assist in a defense
against them. That is the critical issue; so even with the benefit of
hindsight it is not possible to condemn the state court's approach as 'unreasonable.' "
(Emphases omitted.) Tenner, 184 F.3d at 614.
The Supreme Court denied the defendant's third
certiorari petition. See Tenner v. Schomig, 528 U.S. 1052,
145 L. Ed. 2d 492, 120 S. Ct. 592 (1999).
The defendant then filed a 13-claim,
second post-conviction petition. As he had in his federal habeas
corpus petition, the defendant challenged his fitness at trial and
The defendant made two related claims: claim I,
alleging that his constitutional rights were denied because the trial
court failed to hold a fitness hearing despite evidence establishing a
bona fide doubt about his fitness; and claim II, alleging that
his constitutional rights were denied because he was, in fact, unfit at
trial and sentencing. As support for this set of fitness allegations,
the defendant initially relied upon Dr. Rossiter's 1994 report. The
State filed a motion to dismiss the petition.
In a supplemental response to the State's motion, the
defendant added an additional claim, alleging that his constitutional
rights were violated because this court refused to consider claims in
his pro se brief on direct appeal. The defendant also supplied
a second report by Dr. Rossiter. Dr. Rossiter's 2000 report purportedly
addressed an issue not answered in his 1994 report: "whether or not
James Tenner was fit to stand trial in March 1990 on charges of murder
related to the events of September 1987." After a "current review" of
the materials in this case, but not a current interview of the defendant,
Dr. Rossiter opined that the defendant was "more likely than not
unfit to stand trial in March 1990, and unable to assist his attorneys
*** during his subsequent post conviction proceedings." (Emphasis added.)
According to Dr. Rossiter, the defendant suffers from
a "long-standing mental disorder characterized by paranoid and
delusional thinking that leads him to deny that he is mentally ill and
to communicate in a manner that is highly oppositional, evasive, vague,
illogical, and self-contradictory."
In its ruling on the fitness claims, the trial court
reviewed the previous post-conviction opinion from this court, as well
as the two federal court opinions. The trial court stated:
"Now, there's a new letter from Rossiter, and in that letter *** he
offers the opinion [that the defendant] was more likely than not unfit.
In my opinion that letter is of no use whatsoever. I have never seen a
medical opinion phrased in those terms. It[ ] almost appears to me to be
speculation or guess more likely than not, and in my opinion has no
probative value whatsoever. ***
So as far as the evidence based-at least looking here
from an objective standpoint, there is no competent evidence here, there
is no evidence here that-you know, when you look also at Dr. Rossiter's
other [1994 report], his sole basis [for] saying that he would be unfit
was allegedly because he refused to cooperate with (Inaudible), but
objectively looking at the record, he did cooperate with his attorneys,
he was able to cooperate with his defense. [It] certainly is clear by
his pro se filings that he's aware of the charges against him, he knows
the function of various parties, he knows the possible penalties, he
knows the court procedure, and he's able to communicate with counsel
*** [T]here's no merit[ ] to this issue whatsoever."
The trial court also rejected the defendant's claim
regarding his pro se brief. The defendant again appealed to
The Post-Conviction Hearing Act
provides a procedural mechanism through which a criminal defendant can
assert "that in the proceedings which resulted in his or her conviction
there was a substantial denial of his or her rights under the
Constitution of the United States or of the State of Illinois or both."
725 ILCS 5/122-1(a) (West 1998); see People v. Coleman, 183 Ill.
2d 366, 378-79 (1998).
Once a capital defendant files a post-conviction
petition, the trial court examines the petition and appoints an attorney
for the defendant, if necessary. 725 ILCS 5/122-2.1(a)(1) (West 1998).
The State then must answer or move to dismiss the petition. 725 ILCS
5/122-5 (West 1998). If the State files a motion to dismiss, the trial
court must rule on the legal sufficiency of the defendant's allegations,
taking all well-pleaded facts as true. People v. Ward, 187 Ill.
2d 249, 255 (1999).
A defendant is not entitled to an evidentiary hearing
unless the allegations of the petition, supported by the trial record
and any accompanying affidavits, make a substantial showing of a
constitutional violation. People v. Enis, 194 Ill. 2d 361, 376
(2000). Because a trial court's ruling on the sufficiency of the
defendant's allegations is a legal determination, our review is de
novo. Coleman, 183 Ill. 2d at 388.
A post-conviction petition is a collateral attack
upon a prior conviction and sentence, not a surrogate for a direct
appeal. People v. West, 187 Ill. 2d 418, 425 (1999). Any issues
which were decided on direct appeal are barred by res judicata;
any issues which could have been raised on direct appeal are defaulted.
West, 187 Ill. 2d at 425. Further, the Act contemplates the filing
of only one petition: "Any claim of substantial denial of constitutional
rights not raised in the original or an amended petition is waived." 725
ILCS 5/122-3 (West 2000); see People v. Free, 122 Ill. 2d 367,
Consequently, a defendant faces immense procedural default hurdles
when bringing a successive post-conviction petition. People v. Jones,
191 Ill. 2d 194, 198 (2000). Because successive petitions plague the
finality of criminal litigation, these hurdles are lowered in very
limited circumstances, "where fundamental fairness so requires."
People v. Flores, 153 Ill. 2d 264, 274 (1992).
We have defined the fundamental
fairness exception to procedural default in terms of the "cause-and-prejudice"
test used by the United States Supreme Court in the context of
successive federal habeas corpus petitions. See People v.
Owens, 129 Ill. 2d 303, 317 (1989), citing Wainwright v. Sykes,
433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977) (fundamental
fairness requires a court to review a defaulted claim in a collateral
proceeding only when the defendant shows cognizable cause for his
failure to make a timely objection and actual prejudice resulting from
the claimed error). Recently, in People v. Pitsonbarger, No.
89368, slip op. at 10 (May 23, 2002), we reaffirmed that the cause-and-prejudice
test is the analytical tool used to determine whether fundamental
fairness requires a court to make an exception to the waiver provision
of section 122-3 and to consider a claim raised in a successive post-conviction
petition on its merits.
Under this test, claims in a successive post-conviction
petition are barred unless the defendant can establish good cause for
failing to raise the claimed error in prior proceedings and actual
prejudice resulting from the error. See People v. Orange, 195
Ill. 2d 437, 449 (2001); Flores, 153 Ill. 2d at 278-79. To
establish "cause," the defendant must show some objective factor
external to the defense impeded his ability to raise the claim in the
initial post-conviction proceeding. See Pitsonbarger, slip op.
at 11, citing Flores, 153 Ill. 2d at 279. To establish "prejudice,"
the defendant must show the claimed constitutional error so infected his
trial that the resulting conviction violated due process. See Owens,
129 Ill. 2d at 317-18.
In this appeal, the defendant raises
three issues. First, the defendant argues that the trial court erred in
dismissing claims I and II of his second post-conviction petition
without an evidentiary hearing because Dr. Rossiter's 2000 report
established a bona fide doubt about the defendant's competency.
Second, the defendant argues that these claims were not procedurally
defaulted because he satisfied the cause-and-prejudice test with Dr.
Rossiter's 2000 report. Third, the defendant argues that the trial court
erred in dismissing claim XIV of his petition without an evidentiary
hearing because his constitutional rights were violated when this court
refused to consider the defendant's pro se brief on direct
appeal, even though it has considered pro se briefs in other
The third issue merits little discussion. In short,
the defendant contends that this court violated equal protection
principles in that, as a capital defendant, he was treated differently
than other capital defendants. After the commutation order, however, the
defendant is no longer a capital defendant. This issue is moot. See
People v. Jackson, 199 Ill. 2d 286, 294 (2002); cf. Lewis v.
Commonwealth, 218 Va. 31, 38, 235 S.E.2d 320, 325 (1977) (holding
that commutation renders sentencing issues moot).
Further, were it not moot, this issue would be
procedurally defaulted. The defendant has offered no cause, no objective
factor external to his defense, which prevented him from raising this
claim in his first post-conviction petition. The defendant filed his
pro se brief on direct appeal, and our refusal to consider it
should have been raised earlier. Though the defendant attempts to show
cause by asserting that his direct appeal and post-conviction attorneys
refused to raise the issues in his pro se brief, the defendant
mistakes the issues in the brief for the issue about the brief itself.
As the State convincingly demonstrates, every issue in the defendant's
pro se brief was addressed by either this court or the federal
Normally, we would proceed to examine
whether the first and second issues pass the cause-and-prejudice test,
but these claims require a more nuanced analysis. Citing a federal case,
James v. Singletary, 957 F.2d 1562 (11th Cir. 1992), which
distinguishes between procedural and substantive due process competency
claims, the defendant suggests that "because the right not to be tried
while actually incompetent is fundamental," he need not demonstrate
cause and prejudice.
Some federal courts have identified two types of
competency claims available to a habeas corpus petitioner: "First,
a petitioner may allege that the trial court denied him or her due
process by failing sua sponte to hold a competency hearing. ***
Second, a petitioner may allege that he or she was denied due process by
being tried and convicted while incompetent." James, 957 F.2d
at 1571. That is, the prosecution of a potentially unfit defendant,
without a fitness hearing, violates procedural due process; the
prosecution of an actually unfit defendant violates substantive due
process. See Medina v. Singletary, 59 F.3d 1095, 1106 (11th
Cir. 1995); Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir.
Under this rubric, a procedural due process claim is
subject to default under the cause-and-prejudice test, but a substantive
due process claim is not. See Medina, 59 F.3d at 1106-07;
Nguyen, 131 F.3d at 1346. Understandably, the defendant
characterizes at least one of his fitness claims as a substantive due
process claim to escape procedural default.
We have not recognized a distinction
between procedural and substantive due process competency claims, and we
need not do so to decide this case. In his opening brief before us, the
defendant's arguments concerning the dismissal of both his fitness
claims are "combined" into his first issue because, as he recognizes,
the question common to both claims is whether a bona fide doubt
about his fitness at trial and sentencing existed.
The State contends that this issue has already been
decided by this court and the federal courts, and that "the law of the
case" controls. Although we disagree that the law of the case doctrine
applies, we agree that the defendant was precluded from raising this
question in his second post-conviction petition.
The preclusion doctrines of res judicata,
collateral estoppel, and law of the case prevent a defendant from "taking
two bites out of the same appellate apple." People v. Partee,
125 Ill. 2d 24, 37 (1988). Specifically, the law of the case doctrine
bars relitigation of an issue already decided in the same case. See
People v. Patterson, 154 Ill. 2d 414, 468 (1992); People v.
McNair, 138 Ill. App. 3d 920, 922 (1985) ("a determination of an
issue on its merits by an appellate court is final and conclusive upon
the parties in a second appeal in the same case, and the issues
considered and decided cannot be reconsidered by the same court except
on a petition for rehearing"). This doctrine does not apply here because
the instant case involving the defendant's second post-conviction
petition is not the same case as either that involving his first post-conviction
petition or that involving his federal habeas corpus petition.
Collateral estoppel, however, does
apply. The collateral estoppel doctrine bars relitigation of an issue
already decided in a prior case. See People v. Enis, 163 Ill.
2d 367, 386 (1994). That is, "[t]he doctrine applies 'when a party ***
participates in two separate and consecutive cases arising on
different causes of action and some controlling fact or question
material to the determination of both causes has been adjudicated
against that party in the former suit by a court of competent
jurisdiction.' " (Emphasis in original.) People v. Moore, 138
Ill. 2d 162, 166 (1990), quoting Housing Authority v. Young Men's
Christian Ass'n of Ottawa, 101 Ill. 2d 246, 252 (1984). The
collateral estoppel doctrine has three requirements: (1) the court
rendered a final judgment in the prior case; (2) the party against whom
estoppel is asserted was a party or in privity with a party in the prior
case; and (3) the issue decided in the prior case is identical with the
one presented in the instant case. People v. Franklin, 167 Ill.
2d 1, 12 (1995).
Here, the first two requirements are easily met. This
court rendered a final judgment on the defendant's first post-conviction
petition; similarly, the federal courts rendered final judgments on the
defendant's habeas corpus petition. The defendant was a party
in each case. The sole remaining inquiry is whether the issue decided in
those cases is identical to the one presented here, namely, whether a
bona fide doubt about the defendant's fitness at trial and
The claim before us in the defendant's
first post-conviction appeal was whether his trial attorneys were
ineffective for failing to obtain a psychiatric evaluation of the
defendant. But at the core of the ineffective assistance claim was the
issue of whether the defendant's mental condition warranted examination.
In fact, as we have observed, the defendant's supplemental first post-conviction
petition even asserted that a psychiatric evaluation would have enabled
his trial attorneys to make an informed decision "[w]hether a bona
fide doubt existed as to the defendant's fitness to cooperate with
counsel and thus to stand trial."
In rejecting the defendant's ineffective assistance
claim, we found that nothing in the trial record suggested the defendant
suffered from a mental disorder and nothing showed he had a history of
mental illness or emotional disturbance. See Tenner, 175 Ill.
2d at 380. Although we did not use the phrase "bona fide doubt,"
we decided, in effect, that the record did not contain evidence which
would have cast a doubt on the defendant's fitness.
This very issue was also decided by the federal
courts, without the veneer of an ineffective assistance claim. The
defendant's first two federal habeas corpus claims addressed
his fitness. The federal district court found no merit to these claims:
the defendant participated in his defense, and he was fit to do so. The
federal court of appeals found our assessment that the post-conviction
trial court lacked a good reason to doubt the defendant's fitness was "eminently
reasonable." Tenner, 184 F.3d at 614.
The defendant contends that Dr. Rossiter's 2000
report is "new evidence," which directly addresses for the first time
the defendant's fitness at trial and sentencing. See Enis, 163
Ill. 2d at 386 (collateral estoppel does not apply if the defendant
offers additional evidence).
This position is contrary to the one
taken by the defendant in his supplemental first post-conviction
petition. There, the defendant asserted that Dr. Rossiter's 1994 report
created an apparent doubt about the defendant's competency. More
importantly, Dr. Rossiter's two reports are strikingly similar, and his
findings remain the same. A refashioned psychiatric report drafted by a
psychiatrist obtained by defense counsel, and based on a "current review"
of existing evidence, is not new evidence which prevents collateral
We refuse to sanction piecemeal post-conviction
litigation by allowing the defendant to gild previously rejected fitness
claims with self-described "new" expert reports. See People v. White,
198 Ill. App. 3d 781, 784 (1989) ("petitioner is barred from retrying
issues actually litigated and decided in a collateral proceeding [citation]
by rephrasing essentially the same argument"); cf. People v. Evans,
186 Ill. 2d 83, 103 (1999) ("A petitioner cannot obtain relief under the
Act by rephrasing issues, which were previously addressed, in
As we have previously noted, "It is for this court,
and not Dr. Rossiter, to determine whether there existed a bona fide
doubt of defendant's fitness." People v. Burt, No. 86898, slip
op. at 12 (October 18, 2001). This issue has been decided against the
defendant by every court to consider it. We decline to consider it again.
The trial court correctly dismissed claims I and II of the defendant's
second post-conviction petition.
For the reasons that we have discussed,
we affirm the judgment of the Cook County circuit court.
JUSTICE RARICK took no part in the
consideration or decision of this opinion.
JUSTICE FREEMAN, specially concurring:
I agree that the circuit court's judgment must be
affirmed in this case. I write separately, however, to express my views
on several aspects of today's opinion.
In addressing claims I and II, the court asserts that
while it would normally examine whether the claims pass the cause and
prejudice test, "these claims require a more nuanced analysis." Slip op.
at 10. The court also states that it need not recognize the distinction,
recognized in federal courts, between procedural and substantive due
process competency claims because the common question to each is the
bona fide doubt issue, which has previously been decided by both
this court and the federal courts. Slip op. at 11. The court concludes
that collateral estoppel precludes defendant from reasserting the issue
in this action. Slip op. at 11.
It appears to me that the court views the issue raised in this
proceeding as the same issue defendant presented in his earlier state
post-conviction proceeding. See slip op. at 12. If this is the case, I
believe that the cause and prejudice test would be inapplicable since
the test is couched in terms of "cause" for the failure to raise a
claim in an earlier proceeding and prejudice resulting therefrom.
People v. Orange, 195 Ill. 2d 437, 449 (2001).
An issue that was previously litigated and is raised
anew in a successive proceeding can never fall under the ambit of the
cause and prejudice test because the issue had, indeed, been raised in
the earlier proceeding. I believe it is this fact which makes the cause
and prejudice test inapplicable in the present case and not the fact
that defendant's competency claims "require" a different analysis. To
that end, I believe that it would behoove this court to distinguish
between "same-claim" successive petitions and "new claim" successive
New claims, i.e., those never before raised,
are subject to waiver, or more appropriately procedural default, and
would be excused only if the petitioner established both cause and
prejudice for the failure to raise the issue sooner. On the other hand,
same claims, i.e. those issues raised in a previous post-conviction
action, fall prey to the procedural bar of res judicata.
This leads me to comment on whether
the issues raised in defendant's first state post-conviction proceeding
collaterally estop his pursuit of the competency issues in the
proceeding at bar. Unlike my colleagues, I do not believe that the issue
here is the same as the issue this court confronted in defendant's first
post-conviction action. There, defendant claimed that he received
ineffective assistance of counsel at trial because his trial attorney
failed to have defendant's mental condition evaluated prior to trial for
purposes of an insanity defense.
According to defendant, such an evaluation would have
revealed that defendant suffered from mental disorders which could have
given rise to a potential insanity defense or potential mitigation
evidence. The circuit court rejected this claim, dismissing it without
an evidentiary hearing.
On appeal, we affirmed, holding that there was
nothing in defendant's background which would have or should have
prompted a psychological evaluation to determine defendant's sanity at
the time of the offense. As a result, trial counsel was not deficient in
failing to seek the evaluation.
In so holding, we pointed out that the post-conviction
judge, who had also presided over defendant's trial, specifically stated
that " '[i]f there had been anything that would have suggested [a]
psychiatric exam, I probably would have ordered it sua sponte.
I've been known to do that to satisfy myself as to the mental competency
of a defendant in front of the bench. There's none of that in this
record.' " Tenner, 175 Ill. 2d at 81. We further held that even
if counsel had been deficient, defendant had not been prejudiced because
he "failed to show that a mental evaluation would have revealed evidence
that could have resulted in his acquittal on grounds on insanity."
Tenner, 175 Ill. 2d at 382.
As the foregoing reveals, in the
previous case, this court never considered the issue of defendant's
competence to stand trial. Incompetence at the time of trial is a
different question from insanity at the time of the offense. The latter
is concerned with whether a defendant appreciated the criminality of his
or her conduct and whether the defendant could conform that conduct to
the law at the time of the events in question. In contrast, questions as
to fitness to stand trial address whether, at the time of trial, a
defendant has the ability to understand the proceedings and to assist in
his or her defense. Godinez v. Moran, 509 U.S. 389, 125 L. Ed.
2d 321, 113 S. Ct. 2680 (1993).
In my view, our previous decision did not speak to
the question of competency to stand trial. Instead our analysis was
confined to the issue of whether counsel was ineffective for failing to
have defendant undergo a psychiatric examination for a potential
insanity defense. Although aspects of our discussion touched upon
defendant's demeanor during trial proceedings, we made these
observations in the course of assessing whether trial counsel should
have investigated the possibility of mounting an insanity defense. We
did not speak specifically to the question of whether a bona fide
doubt as to competency existed.
I note that the court points to a supplemental
petition, filed by defendant in his first state post-conviction petition,
in which defendant alleged that a psychiatric evaluation would have
enabled his trial attorneys to make "an informed decision" about his
fitness to stand trial. Slip op. at 2. My review of the record, however,
reveals that neither the post-conviction judge nor this court addressed
the matter of fitness in any depth.
In fact, when defendant asserted his
competency claims in federal court, the State raised the procedural bar
of default, arguing that defendant had failed to raise the matter in
state court. The federal district court, however, refused to enforce the
bar, specifically noting that incompetency claims are never subject to
procedural default. Tenner v. Gilmore, No. 97-C-2305 (N.D. III.
October 8, 1998).
The fact that the State argued procedural default,
coupled with the district court's assertion of an exception to the
procedural default bar, leads me to conclude that neither the State nor
the district judge believed that the precise issue had ever been given a
full hearing in the state courts. Under these circumstances, I am
reluctant to hold that the issue decided in the first post-conviction is
"identical" to the issue presented in the case at bar.
Nevertheless, I believe that the federal courts have
spoken definitively on the issues raised by defendant in the proceeding
at bar and that the decisions of the federal courts collaterally estop
defendant from litigating the matters anew in our state courts.
Defendant argues that Dr. Rossiter's 2000 report is new evidence that
prevents collateral estoppel from applying.
Dr. Rossiter's report, however, does not constitute
new evidence-it is not based on any recent evaluations of defendant nor
does it present any new facts regarding defendant's behavior at the time
of trial. In fact, Dr. Rossiter does not even opine that defendant was
unfit at the time of trial. Rather, he contends that defendant "was more
likely than not unfit to stand trial in March 1990." In my view, this
conclusion, based on a current review of existing evidence, does not
rise to the level necessary to preclude the application of collateral
1This distinction is recognized by the federal
courts in habeas corpus proceedings. See J. Liebman & R. Hertz
Federal Habeas Corpus Practice and Procedure �28.2b (3d ed. 1998).
Although the doctrine of res judicata does not bar successive
petitions on habeas corpus, the United States Supreme Court has
allowed the federal habeas courts to consider dismissing a
petition when the same claims have been previously raised in an earlier
federal habeas corpus proceedings and the ends of justice would
not be served by relitigation. See Wong Doo v. United States,
265 U.S. 239, 68 L. Ed. 999, 44 S. Ct. 524 (1924); Salinger v.
Loisel, 265 U.S. 224, 68 L. Ed. 989, 44 S. Ct. 519 (1924). Congress
codified the Court's holding in 1948, and in 1963 the Supreme Court
construed the provision. See Sanders v. United States, 373 U.S.
1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963). Same-claim petitions are
barred only if (i) the same ground presented in the subsequent case was
determined adversely to the petitioner in the first proceedings, (ii)
the previous determination was on the merits, and (iii) the ends of
justice would not be served by reaching the merits of the subsequent
petition. J. Liebman & R. Hertz Federal Habeas Corpus Practice &
Procedure �28.2b (3d ed.1998).