Griffin v. Pierce

• Decision Date: 22 September 2010
• Docket Number: No. 09-3138.,09-3138.
• Citation: 622 F.3d 831
• Parties: Henry GRIFFIN, Petitioner-Appellant, v. Guy PIERCE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

622 F.3d 831

Henry GRIFFIN, Petitioner-Appellant,

v.Guy PIERCE, Respondent-Appellee.

No. 09-3138.

United States Court of Appeals,Seventh Circuit.

Argued May 27, 2010.

Decided Sept. 22, 2010.

Gregory R. Swygert (argued), Office of the State Appellate Defender, Chicago, IL, for Petitioner-Appellant.

Marie Quinlivan Czech, Office of the Cook County State's Attorney, Chicago, IL, for Respondent-Appellee.

Before BAUER, WOOD, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Henry Griffin was convicted by a jury of murder, solicitation to commit murder, and conspiracy to commit murder. A judge sentenced him to death. Griffin filed two post-conviction petitions in Illinois state courts, to no avail. He then filed a petition for writ of habeas corpus in the district court, claiming that the State knowingly used perjured testimony and that his sentencing counsel was ineffective. The district court denied his petition but granted a certificate of appealability on these two claims. Griffin appealed, and we grant the petition on the Strickland claim only.

I. Background

A. Underlying Criminal Case

The recitation of the facts pertaining to Griffin's underlying conviction is taken from the Illinois Supreme Court's opinion in People v. Griffin, 148 Ill.2d 45, 170 Ill.Dec. 250, 592 N.E.2d 930, 931-32 (1992) (Griffin I), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993):

On June 21, 1984, the body of Carl Gibson was found near the 73rd Street exit ramp off of the Chicago Skyway. He had been shot four times at close range several hours earlier.

At the time, the Chicago Police Department and the State's Attorney's Office of Cook County were involved in an investigation of a major drug operation located on Chicago's south side that targeted Charles Ashley, a drug dealer whose activities yielded an estimated $3 million annually. Gibson was employed in Ashley's drug operation.

Darryl Moore, who was also employed by Ashley's drug operation, was arrested in late July 1984 on drug and unlawful use of weapons charges. While in jail, Moore contacted Detective Michael Pochordo who was with the Violent Crimes Division of the Chicago Police Department. Moore claimed to have information about the Gibson murder. Pochordo set up a meeting with Moore and representatives of the State's Attorney's Office. At a meeting on August 7, 1984, Moore advised members of the State's Attorney's Office that Griffin was involved in the Gibson murder. So the State's Attorney's Office requested permission for a consensual overhear device for use in Moore's contact with Griffin. The Circuit Court of Cook County approved an application for the overhear device, and on August 9, 1984, a tape-recording device was assembled at the State's Attorney's Office and used to record a telephone conversation between Moore and Griffin. Moore recognized Griffin's voice because he had known him through their “enforcer” work and had spoken to him at least 100 times. During this taped conversation, Griffin implicated himself in the Gibson murder.

Griffin was arrested and taken into custody. James Allen was also arrested in connection with the murder, and the two were placed in separate interview rooms. Assistant State's Attorney Neil Cohen was introduced to Griffin and read him his Miranda warnings. Griffin asked whether Cohen had talked to Allen and, upon hearing that Allen had given a statement, Griffin waived his Miranda rights and confessed to his participation in Gibson's murder. Griffin's confession revealed the following facts: Ashley approached Griffin and asked him if he would kill Gibson for $2,500. Ashley wanted Gibson eliminated because he suspected that Gibson was secretly passing information to police. The offer was made and accepted in the presence of Allen. Griffin and Allen went to Moore's apartment to obtain a gun. Moore was one of Ashley's “enforcers” and he and Griffin had worked together in the past. Moore gave Griffin a .38-caliber revolver, and Griffin and Allen left the apartment and took Griffin's family members home. Allen waited in the car while Griffin entered the home. Then Griffin returned to the car accompanied by Gibson. Allen drove, Gibson sat in the passenger seat, and Griffin sat in the back seat. Allen drove onto the Chicago Skyway at 89th Street, proceeding southbound. When he reached a toll plaza, he turned around and proceeded northbound. While driving northbound on the Skyway, Griffin shot Gibson four times in the back of the head with a .38-caliber revolver. Allen then exited the Skyway at 73rd Street and stopped the car on the exit ramp. Griffin pulled Gibson's body out of the car. The next day Griffin gave the murder weapon to Ashley. Griffin and Allen disposed of the rental car used in the murder. Ashley paid Griffin in cash and cocaine.

Griffin was indicted along with codefendants Ashley and Allen for conspiracy to commit murder, solicitation to commit murder, and murder. Prior to trial, the court found Griffin fit to stand trial and denied his motion to suppress evidence seized pursuant to a search warrant. In June 1985, all three defendants were tried simultaneously-Griffin and Allen by separate juries, and Ashley by Judge Earl Strayhorn. The prosecution's chief evidence against Griffin consisted of the taped telephone conversation between Griffin and Moore; an unsigned, court-reported statement of Griffin; Assistant State's Attorney Cohen's testimony about his conversations with Griffin; and Moore's testimony.

B. Additional Facts

The prosecutor offered into evidence the tape recording of the August 9, 1984, telephone conversation between Moore and Griffin. Griffin objected to the tape's admission. Though he now argues that the tape is largely unintelligible, he did not object on that ground when opposing the tape's admission. Indeed, the Illinois Supreme Court found that at the time of admission, Griffin did not object on audibility grounds, Griffin I, 170 Ill.Dec. 250, 592 N.E.2d at 934, and our own review of the trial transcript confirms the correctness of that finding. And the trial court, having heard the transcription of the tape-recorded conversation, apparently found the tape sufficiently intelligible and admitted it. The tape recording of Griffin and Moore's telephone conversation was played for the jury.

Griffin's unsigned statement, taken in the police interview room on August 9, 1984, in the presence of Assistant State's Attorney Cohen and Detective Pochordo and reported by a court reporter, Joseph A. Szybist, was read to the jury. The court reporter testified that the statement was an accurate transcription of the conversation between Cohen and Griffin. According to that statement: Griffin said that on June 20, 1984, Chuck Ashley asked him to kill one of his workers, Gibson, for $2,500. Ashley told Griffin that he wanted Gibson killed because Gibson was a snitch. Griffin accepted the offer, which was made and accepted in the presence of Allen a/k/a “Head.” Griffin and Allen went to the apartment of Moore (a/k/a Kareem) to get a revolver. Griffin asked Moore for a gun, but didn't tell him what it was for. Moore gave Griffin a loaded .38 special revolver. Griffin and Allen took Griffin's family home and Griffin returned to the car with Gibson. Griffin and Gibson got into the rental car that Allen was driving. Gibson was in the front passenger seat, and Griffin got in the back seat. They drove to the Skyway, turned around, and then Griffin killed Gibson with the gun, shooting him four times in the back of the head. They got off the Skyway at the 73rd exit ramp and Griffin pulled the body out. Griffin gave the gun he had used to Ashley and the rental car was dumped. Ashley paid Griffin $1,500 in cash and $1,000 worth of cocaine. Earlier that day (August 9, 1984) Griffin received a phone call from Kareem (Moore) and talked about the contract on Gibson.

At trial Assistant State's Attorney Cohen testified about the recorded telephone conversation between Griffin and Moore; Cohen had listened to the conversation as it took place. Cohen stated that throughout the recorded conversation, the person talking with Moore responded to the name “Grif.” Cohen also testified that the person who spoke to Moore had a “low, gruff voice” and that it was the voice he heard speaking at the end of the tape when the police entered and arrested Griffin. Raymond Stockholm, the supervising investigator with the State's Attorney's Office, corroborated Cohen's testimony that Moore addressed the person to whom he spoke as “Grif”-and “several times” at that. Cohen testified that when he spoke to Griffin on the day of his arrest, he recognized Griffin's voice as the same voice he had heard during the recorded conversation with Moore. According to Cohen, Griffin acknowledged that he discussed the Gibson killing with Moore on the phone earlier that day.

Cohen further testified regarding Griffin's oral and written statements. Cohen stated that on the day of Griffin's arrest, he had a conversation with Griffin regarding Griffin's participation in the Gibson murder. Cohen first advised Griffin of his Miranda rights and then asked if he would like to talk. Griffin asked Cohen if he had been talking to “Head” (Allen), and Cohen answered that they had been talking about the Gibson murder. Griffin agreed to talk. Griffin told Cohen that he had killed Gibson. More specifically, Cohen testified that Griffin advised him of a June 20, 1984 conversation with Chuck Ashley in which Ashley asked him to kill two people, including Gibson, in exchange for $2,500, and Griffin agreed to do it. According to Cohen, Griffin told him that Allen was present at the time. Cohen stated that Griffin said he and Allen met with Moore; Allen and Griffin picked up some people and then dropped them off at an apartment. Allen waited in the car while Griffin got out. Griffin returned with Gibson who got in the front seat and Griffin got into the...