Ashford v. Gilmore

• Decision Date: 05 February 1999
• Docket Number: No. 98-1353,98-1353
• Parties: James B. ASHFORD, Petitioner-Appellant, v. Jerry D. GILMORE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1130

167 F.3d 1130

James B. ASHFORD, Petitioner-Appellant, v. Jerry D. GILMORE, Warden, Respondent-Appellee.

No. 98-1353.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 16, 1998.

Decided Feb. 5, 1999.

Richard D. Frazier, Metnick, Wise, Cherry & Frazier, Springfield, IL, Alan M. Freedman (argued), Midwest Center for Justice, Ltd., Chicago, IL, for Petitioner-Appellant.

Michael M. Glick (argued), Office of the Attorney General, Chicago, IL, Deborah L. Ahlstrand, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Respondent-Appellee.

Before MANION, DIANE P. WOOD, and EVANS, Circuit Judges.

MANION, Circuit Judge.

On June 12, 1985, James Ashford murdered four people in Springfield, Illinois and stole $10,000 and a bag full of cocaine. He waived his right to a jury, and the Illinois state trial court convicted him of murder and armed robbery. Contrary to advice of his counsel, Ashford also waived a jury for the sentencing hearing, and the trial court sentenced him to death. Having exhausted his state remedies, Ashford filed a habeas corpus petition under 28 U.S.C. § 2254. He claimed that his attorney provided ineffective assistance of counsel by honoring his request not to present evidence of mitigation. Also, Ashford claimed that a memo regarding security concerns, presented to the sentencing judge two days before sentencing, denied him due process of law. The district court denied the petition for the writ of habeas corpus, and we affirm.

I.

The facts of this case, which we must presume to be correct, see 28 U.S.C. § 2254(e)(1), are drawn from the decisions of the Illinois Supreme Court:

The State presented the following evidence at trial. Ellen Michelle Lawson testified that on the evening of June 12, 1985, she went to buy some marijuana at the home of Lonnie Davis, at 1714 East Stuart Street in Springfield, Illinois. Four persons were there when she arrived, at approximately 10 p.m.: Lonnie Davis; Davis' girlfriend, Annette Singleton; his sister Janetta Leaks; and Bernard Bowen. Bowen greeted Michelle at the front door, which led to the home's living room. After letting her in, Bowen took a seat at the table in the dining room, a room immediately adjacent to the living room. On the dining room table was a scale, a mirror, a large freezer-type bag filled with a white powdery substance, and a briefcase containing several stacks of United States currency. Bowen was weighing the white substance, which Michelle believed was cocaine. Michelle walked through the dining room to the kitchen, where she saw Leaks and Singleton. The two women were eating. She then went into the bedroom adjacent to the kitchen to talk with Davis. While the two were talking, the front doorbell rang several times. Michelle testified that Bowen answered the door and then exchanged a few words with Davis. Shortly afterwards, Michelle heard a voice outside, which she recognized as that of Gary Jones, say: "F--k that, let me in." Two gunshots followed. Davis, Leaks and Singleton all ran to the living room. Michelle remained in the bedroom and, from there, she heard the two women scream and run back into the kitchen.

Michelle attempted to flee the house by a door in the bedroom that led to the outside. The door, however, was locked with a dead-bolt and could not be opened without a key. After hearing three or four more gunshots, Michelle retreated down the basement stairs and hid behind the washer and dryer. Michelle heard screaming and three or four more shots. She heard Annette Singleton beg for her life to be spared, followed by four more shots. She then moved to the bedroom in the basement and hid between the bed and a wall.

As she lay on the basement floor underneath the bed, Michelle heard still four more shots and then the sound of footsteps descending the basement stairs. She testified that from underneath the mattress, she could see a pair of feet wearing canvas-type tennis shoes and the bottoms of a pair of black pants or jeans. While the feet were still in her sight, Michelle heard a voice from upstairs, which she recognized as that of Gary Jones. She then heard a voice, which she recognized as that of the defendant's, respond from the basement: "I'm coming. I'm coming, man." The defendant went back upstairs. Michelle remained under the bed about five minutes longer, during which time the house was silent. She then ventured upstairs.

Michelle observed the bodies of Davis, Leaks and Singleton on the kitchen floor, the bodies of the two women huddled close together under the kitchen table. As she headed for the front door, Michelle passed through the dining room. Michelle testified that the freezer bag of white powder and the money she had seen earlier on the dining room table were no longer there. She found Bowen's body in the living room near the front door to the house.

Illinois v. Ashford, 121 Ill.2d 55, 117 Ill.Dec. 171, 520 N.E.2d 332, 333-34 (Ill.1988) ("Ashford I"). Ashford related his version of the murders to Janet and Ramona Walker, who then testified at trial:

Janet Walker and her sister Ramona Walker testified that the defendant and Mack Alexander came to Janet's home around 8 p.m. on June 15, 1985. The defendant had some cocaine, which he poured onto a plate and divided into lines. All four snorted the cocaine. The defendant told them that because they were all family (distant cousins), he was going to tell them something they were not to repeat. The defendant then told how he and Gary Jones went to Davis' home on June 12. He said that when Bowen opened the door, he pulled out his pistol and shot Bowen. He told them how one of the women in the kitchen had pleaded with him, "Pud, don't kill me." The defendant stated that he shot her because she called out his nickname.

Ramona did not recall if the defendant said whether he, Jones or both had shot the other women or Lonnie Davis. She recalled that the defendant said something about Jones being in the basement and stated that she had to leave the room several times, once because she had to vomit. Janet testified that the defendant said that he shot both the other women and Davis. The leg of one of the victims was shaking and so the defendant shot each victim in the head to make sure they were dead. Jones and the defendant then took the money and cocaine in two briefcases. They later split the money, each taking $5,000. The defendant stated that they had planned the robbery and explained that when that kind of money and drugs are involved, "you don't leave anyone alive." Pointing his hand at each of their heads, as though he were holding a gun, the defendant stated: "I shot them like this." He stated further that he had paid someone $50 apiece to get rid of the guns used to kill the victims.

Ashford I, 117 Ill.Dec. 171, 520 N.E.2d at 335-36.

Ashford had paid $100 to have Greg Phillips dispose of the weapons; however, Phillips eventually led the police back to where he buried the guns. The guns' serial numbers identified the guns as being purchased by Ashford, and forensic scientists testified that Ashford's fingerprint was on one of the guns, and that the bullets which had killed the victims were fired from these guns. Dr. Grant Johnson, a forensic pathologist, testified that Bernard Bowen died from two gunshot wounds to the chest, one piercing his heart and the other perforating the aorta. He also testified that Annette Singleton, Lonnie Davis and Janetta Leaks all died from gunshot wounds to the head.

Ashford's trial was severed from Jones'. Ashford waived trial by jury, and was convicted of four counts of knowing murder, four counts of felony murder, and one count of armed robbery. Two days before the sentencing hearing was held, Lieutenant Sam Huston, an assistant jail administrator for the sheriff's department, sent the state court judge in this case a letter discussing safety precautions to be utilized at the sentencing hearing. This letter read:

Your Honor, it has been brought to my attention that Inmate James Ashford has let it be known to another Inmate that he intends or has at least made reference to the fact that he (Ashford) is going to become a problem in the Court, following his sentencing. The outcome of this sentence, is of course known only to you at this time, but I submit that it shall be severe and Mr. Ashford may well have nothing to lose by a display of this type which could become quite serious. We have spoken to Mr. Roberts [the prosecutor in Ashford's case] about this matter and he seems to be in favor of our staff keeping hand-cuffs with a security belt and leg-irons on this individual throughout the entire process on the 16th.

With all due respect to the Court, I ask for your approval in this matter and although as unusual as it may seem, I can assure you that many members of our staff has observed a growing sense of hostility and apprehension with this Inmate. Further I ask for your order to set up a metal detecting search procedure with all observers and that we utilize the smallest Court room available to limit the size of the gallery.

Mr. Ashford and his friends are all quite familiar to us and sudden and violent outbursts, are their trademark. I have requested these considerations of you, not because of a paranoid or fearful hunch, but because we know the capabilities of this individual and have received enough "grapevine" information to predicate these precautions.

A copy of this letter was also sent to the state prosecutor, but not to Ashford or his counsel.

On April 16, 1986, Ashford's sentencing hearing was held. Ashford's counsel argued against the death penalty based on the fact that Ashford had never been previously convicted of a felony, and that in the alternative, Ashford would have to be sentenced to life imprisonment without parole. (Under Illinois law, a mandatory sentence of life imprisonment without the possibility of parole (or "natural life") is the only...