Demetrius Henderson v. JONATHAN L. WALLS , Warden, Menard Correctional Center

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 00-3834, 00-3778
D EMETRIUS H ENDERSON ,
Petitioner-Appellee,
Cross-Appellant,
v.
J ONATHAN L. W ALLS , Warden,
Menard Correctional Center,
Respondent-Appellant,
Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 1079—John A. Nordberg, Judge.
____________
A RGUED J UNE 11, 2001—D ECIDED J ULY 9, 2002
____________
Before C OFFEY , D IANE P. W OOD , and E VANS , Circuit
Judges.
D IANE P. W OOD , Circuit Judge. In 1987, a jury convicted
Demetrius Henderson of kidnapping 16-year-old Kimberly
Boyd, gang raping her, and then, to keep her from reporting
the rape, killing her by stabbing her over 40 times and
repeatedly running her over with a car. (A full recitation of
the gruesome details, including the identities of the other
three participants in the rape, can be found in People v.

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2 Nos. 00-3834, 00-3778
Henderson, 568 N.E.2d 1234 (Ill. 1990).) After Henderson
waived his right to a sentencing jury, the trial judge con-
ducted a sentencing hearing and determined that Hen-
derson was eligible for the death penalty because he was
over 18 years old at the time of the murder and he had
killed Boyd in the course of another felony. The judge then
found that there were no mitigating factors and sentenced
Henderson to death. He also imposed sentences of 45 years
for the aggravated criminal sexual assault and 10 years
for the aggravated kidnapping. Henderson’s execution has
been stayed pending his appeals and petitions for post-con-
viction relief.
On direct appeal, the Illinois Supreme Court upheld Hen-
derson’s convictions and death sentence, although it re-
duced the prison term for the aggravated criminal sexual
assault from 45 years to 30 years. People v. Henderson, 568
N.E.2d 1234. It denied his petition for a rehearing, and the
United States Supreme Court denied Henderson’s petition
for a writ of certiorari. Henderson v. Illinois, 502 U.S. 882
(1991).
Henderson then filed a petition with the Circuit Court
of Cook County for relief pursuant to the Post-Conviction
Hearing Act, 725 ILCS 5/122-1 et seq. The court considered
the allegations raised in the petition, heard arguments,
and concluded that Henderson had failed to establish that
he was entitled to an evidentiary hearing. The Illinois Su-
preme Court agreed that the post-conviction petition had
no merit. People v. Henderson, 662 N.E.2d 1287 (Ill. 1996).
Once again, that court denied Henderson’s petition for
rehearing and the United States Supreme Court denied
certiorari. Henderson v. Illinois, 519 U.S. 953 (1996).
The case now before us began on February 8, 1997, when
Henderson filed a seven-count petition in the district court
seeking a writ of habeas corpus under 28 U.S.C. § 2254. His
petition alleged, among other things, that (1) his trial coun-

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Nos. 00-3834, 00-3778 3
sel was ineffective in failing to present medical evidence in
support of his claim that he was physically coerced into
confessing to the crimes; (2) he did not knowingly and in-
telligently waive his right to a sentencing jury; and (3) the
prosecution discriminated against African-Americans in
using its peremptory challenges. The district court rejected
Henderson’s first two claims but granted relief based on
its finding that the Illinois Supreme Court had unreason-
ably applied Batson v. Kentucky, 476 U.S. 79 (1986), when
it categorically refused to consider the similarities between
excluded African-American venire members and accepted
non-African-American jurors in its evaluation of Hen-
derson’s Batson argument. U.S. ex rel. Henderson v. Page,
No. 97 C 1079, 2000 WL 1466204 (N.D. Ill. Sept. 29, 2000).
The court ordered that the writ of habeas corpus would
be granted unless the State of Illinois holds a new hearing
on Henderson’s Batson claim within 120 days of the date
of the order.
The State appealed from the district court’s conditional
grant of the writ on the basis of the Batson violation. Hen-
derson then cross-appealed after receiving a certificate of
appealability from this court on the other two issues men-
tioned above: (1) whether he knowingly and intelligently
waived his right to a sentencing jury since he was not in-
formed that the jury must unanimously determine eligibil-
ity for the death sentence; and (2) whether trial counsel
denied Henderson effective assistance of counsel at the
suppression hearing in failing to present corroborating med-
ical testimony that his confession was coerced. The later
two errors, he argues, require additional relief not encom-
passed within the district court’s order.
I
As amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d) allows a

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4 Nos. 00-3834, 00-3778
federal court to grant a petition for a writ of habeas corpus
only if the state court’s adjudication of the relevant claims
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.” (The post-1996 version of § 2254 applies because
Henderson filed his petition after the effective date of
AEDPA. See Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.
1999).) Even under these standards, our review of the dis-
trict court’s decision to grant or deny habeas petitions is
de novo. Hall v. Washington, 106 F.3d 742, 748 (7th Cir.
1997). AEDPA has not altered this court’s review of a
district court’s legal conclusions. In conducting our de novo
review, however, the question is whether the state court
“unreasonably” applied clearly established federal law as
the Supreme Court has determined it. Id. “Under the ‘un-
reasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct gov-
erning legal principle from this Court’s decisions but un-
reasonably applies that principle to the facts of the pris-
oner’s case.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
The question then is “whether the [state court’s] determi-
nation is at least minimally consistent with the facts and
circumstances of the case.” Hennon v. Cooper, 109 F.3d 330,
335 (7th Cir. 1997). In making this determination, we do
not “defer” to the state court decision; AEDPA does not
provide for the Chevron deference afforded administra-
tive agencies. See Lindh v. Murphy, 96 F.3d 856, 868 (7th
Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320
(1997). We have recognized, however, that review under the
amended statute is severely restricted: “the fact that we
may think certain things could have been handled better
by the state trial judge or by the prosecuting attorney or
by a state reviewing court means very little.” Sanchez v.
Gilmore, 189 F.3d 619, 623 (7th Cir. 1999). Nonetheless,
our review is not so limited as to require a finding of jud-

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Nos. 00-3834, 00-3778 5
icial incompetence before we are allowed to overturn a
state court’s decision. See Hall, 106 F.3d at 749 (“Congress
would not have used the word ‘unreasonable’ if it really
meant that federal courts were to defer in all cases to the
state court’s decision.”).
Applying these standards, we conclude that the district
court correctly resolved all three claims we have identified
here: the state courts unreasonably applied the Supreme
Court’s Batson decision, but their decisions on Henderson’s
other two arguments neither failed to apply the applicable
law as announced by the United States Supreme Court
nor did they unreasonably apply that law. We therefore
affirm.
II
A.
We first consider the State’s challenge to the district
court’s finding of a Batson violation. The record of this case
comes to us in an unusual posture. The state court record
at the trial level was somewhat cryptic regarding the Bat-
son challenge, the Batson hearing (or lack thereof), and the
racial make-up of the venire members both excluded and
accepted. The Illinois Supreme Court noted the failure of
the trial court to produce a proper record and conducted its
own review of the facts regarding the number of challenges
exercised by the parties and the races of the venire mem-
bers challenged by the prosecution. Henderson, 568 N.E.2d
at 1245. This, in our view, was a decision it was entitled to
make. The only consequence for us is that it is the Illinois
Supreme Court’s own decision and its version of the facts
that we now review, since that court chose to disregard the
trial court’s discussion and to conduct its own detailed
review of the record. With that in mind, we turn to the mer-
its of the Batson claim.

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6 Nos. 00-3834, 00-3778
Voir dire in Henderson’s case took place for two separate
venires. Examination of the first venire ended after only
four jurors had been sworn in. At that point, the only Afri-
can-American on the venire panel told the judge that he
would be unable to concentrate fully on the case, the judge
excused him for cause, and he dismissed the other chosen
jurors and the entire venire panel.
The trial judge then held a second voir dire of a 40-person
panel. Three individuals were struck for cause, leaving 11
African-Americans and 26 non-African-Americans on the
venire panel. The prosecution and the defense were each
allotted 14 peremptory challenges; the prosecution used 10
and the defense used 13. Of the 10 peremptory challenges
exercised by the prosecution, six (60%) were used against
African-Americans. The prosecutor then accepted 27 mem-
bers, five of whom were African-American. The defense then
exercised its peremptory challenges; the net result was
that three of the 14 venire members chosen to serve as
jurors or alternates were African-American.
After the jurors and alternates had been sworn in, but
before opening statements, defense counsel moved for a
mistrial on the basis that the prosecution had intentionally
excluded African-American venire members from the jury
through his exercise of peremptory challenges. (Although
defense counsel may have forfeited this argument by fail-
ing to object earlier, the State failed to argue forfeiture
and instead attacked the motion’s merits. The Illinois Su-
preme Court was not concerned with forfeiture, and thus
neither are we.) Defense counsel pointed out that: (1) six
of the ten venire members challenged by the prosecutor
were African-American; (2) the jury consisted of ten non-
African-Americans and two African-Americans; and (3) two
of the three peremptory challenges exercised by the prose-
cutor during the first voir dire were exercised against Afri-
can-Americans. The State responded by pointing to the
fact that the prosecution did accept at least two and pos-
sibly three African-Americans that it could have struck.

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Nos. 00-3834, 00-3778 7
At that point, the trial judge recognized that under
Batson he had to “make a decision as to whether [he] should
require the State to show cause as to why they made cer-
tain decisions regarding the jury,” but the judge decided
to wait until the next day to make a decision. The next
day, a white juror was excused after she told the judge that
she had some serious personal problems that would make
concentration difficult. The first alternate, an African-
American male, became a juror, leading to a final jury with
three African-Americans. The judge then denied the Batson
motion for a mistrial, finding that Henderson had not
made out a prima facie case that the prosecution had ex-
cluded African-Americans from the jury in violation of
Batson, especially in light of the fact that there were three
African-Americans on the jury. The court’s discussion was
very limited. It reads as follows in the transcript:
COURT: I think the composition of the jury speaks for
itself in terms of no pattern of systematic exclusion of
blacks. I think further the fact that there were other
blacks who were accepted by the State and that the
defense opted to remove, leads me to believe that there
was no systematic exclusion, therefore, I am not going
to inquire further. . . . [T]he fact that there are five
minority people on the jury and others that were
accepted by the State is sufficient for me to indicate
that there was no systematic exclusion, which is what
my ruling is.
* * *
I also have been a trial lawyer for twenty years and
have picked a lot of juries in my own time, and I don’t
find that people that were excluded, to my mind, were
excluded toward unknown reasons, I mean, we all guess
as to why all jurors are kept and why they’re not, that’s
why we have challenges that no one has to explain
under the present state of the law. . . .

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8 Nos. 00-3834, 00-3778
Henderson was ultimately convicted by a jury consisting
of nine non-African-Americans and three African-Ameri-
cans.
On direct appeal to the Illinois Supreme Court, Hender-
son argued that the prosecution used its peremptory chal-
lenges to exclude African-Americans from the jury, in vio-
lation of the Fourteenth Amendment as interpreted by
the Supreme Court in Batson v. Kentucky. The Illinois Su-
preme Court rejected this argument. Henderson, 568 N.E.2d
1234. It focused first on the fact that the prosecution had
used only 60% of its peremptory challenges to exclude Afri-
can-Americans and concluded that this was not enough to
demonstrate a prima facie case of purposeful discrimina-
tion. Id. at 1249. Second, the court stated that the victim’s
race (African-American) negated any inference of prosecuto-
rial discrimination, since (according to the court) prosecu-
tors are more likely to use peremptory challenges in an
improper way when they are trying to secure jurors of the
same race as the victim in order to try and stir up racial
hatred or fears. Id.
Henderson had argued that the only respect in which the
struck African-Americans could be distinguished from the
white jurors was by race. The court refused to consider this
“comparison analysis” at the prima facie stage:
[A]t this stage of a Batson claim we are only concerned
with whether the stricken black venire members shared
any characteristics other than race; it is not our role to
search for possible reasons for the prosecution’s strikes
or for similarities between stricken black and accepted
white venire members. Id. at 1249-50.
The court then looked at several other factors which are
not relevant to this appeal. While the court was concerned
with the disparity between the percentage of African-Amer-
icans on the venire (30%) and the percentage of African-

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Nos. 00-3834, 00-3778 9
Americans on the jury (plus alternates) (21%), the court
found that the rest of the relevant factors were either neu-
tral or tended to refute an inference of discrimination.
Accordingly, the court held that the trial court’s finding
that the defendant failed to establish a prima facie case of
purposeful discrimination was not against the manifest
weight of the evidence. Id. at 1250.
In his petition for habeas corpus relief, Henderson re-
peated the arguments he had advanced in the Illinois Su-
preme Court. The district court found no error in most of
the Illinois Supreme Court’s holdings regarding Batson. It
found, however, that the state court had erred in its ap-
plication of the Batson test and it conditionally granted the
writ unless the State followed up with appropriate proceed-
ings in state court.
B.
In Batson v. Kentucky, the Supreme Court held that a
prosecutor is forbidden from challenging potential jurors
solely on the basis of their race or on assumptions about
black jurors as a group. 476 U.S. at 89. It established a
three-part framework for considering challenges to a
prosecutor’s use of peremptory challenges. First, the de-
fendant must establish a prima facie case of purposeful
racial discrimination by the prosecutor in her use of per-
emptory challenges “by showing that the totality of the
relevant facts gives rise to an inference of discriminatory
purpose.” Id. at 93-94. If the defendant succeeds in making
out a prima facie case, the prosecutor must offer race-neu-
tral explanations for her exercise of peremptory challenges.
Id. at 97. Once the prosecutor has made that proffer, the
defendant may argue that the stated reasons are pre-
textual, and the trial court then makes a final determina-
tion. Id. at 98. Neither the trial court nor the Illinois

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10 Nos. 00-3834, 00-3778
Supreme Court moved past the first stage: they both found
that Henderson had not made out a prima facie case of
discrimination, and so the prosecutor was never formally
asked to explain his use of peremptory challenges. The only
mention of potentially race-neutral reasons came much
later in the State’s brief to the Illinois Supreme Court;
Henderson argued pretext in his reply brief.
Batson also laid out what a defendant must do to estab-
lish a prima facie case. First, the defendant must show that
she is a member of a cognizable racial group. Second, she
must show that the prosecutor exercised peremptory chal-
lenges to remove venire members of the defendant’s race.
Finally, the defendant must show that these facts and any
other relevant circumstances raise an inference that the
prosecutor excluded venire members on account of their
race. Id. at 96.
Batson does not provide a checklist of what trial judges
should consider in evaluating these challenges. Instead, the
Supreme Court said more generally that “[i]n deciding
whether the defendant has made the requisite showing, the
trial court should consider all relevant circumstances.” Id.
(emphasis added). Batson gave two examples of relevant
circumstances: (1) “a pattern of strikes against black jurors
included in the particular venire” and (2) “the prosecutor’s
questions and statements during voir dire examination.” It
emphasized, however, that its “examples [were] merely
illustrative.” Id. at 97. The issue now before us is whether
this precedent from the Supreme Court permits a state
court to exclude, at the prima facie stage, proffered evidence
that compares excluded African-American venire members
with the accepted white jurors.
The Illinois Supreme Court determined, as a matter of
law, that the comparison of excluded African-American
venire members with white jurors was not relevant evi-

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Nos. 00-3834, 00-3778 11
dence: “at this stage . . . it is not our role to search . . . for
similarities between stricken black and accepted white
venire members.” Henderson, 568 N.E.2d at 1250. Perhaps
it was not the court’s role to “search” for similarities, but
in this case, Henderson had vehemently requested a com-
parison analysis and provided the court with all of the
relevant characteristics of the excluded and accepted venire
members. Declining to search out similarities is far differ-
ent from refusing to consider, on relevance grounds, evi-
dence of similarities when the defendant presents it. We see
nothing in Batson that takes such a crabbed view of what
might be relevant to the consideration of “all” the circum-
stances surrounding the exercise of the state’s peremptory
challenges. Indeed, this court has already interpreted Bat-
son to require a consideration of precisely this kind of
comparison evidence. See Mahaffey v. Page, 162 F.3d 481,
484 (7th Cir. 1998). Our decision in Mahaffey is obviously
not directly applicable here, as we may look only to Su-
preme Court decisions as the source of law. But Mahaffey
did express our understanding of the scope of Batson, and
as such we find it a useful secondary source. Even with the
benefit of further briefing in this case, we can find nothing
in Batson that entitles a state court to exclude from the
prima facie case an entire category of evidence that has the
potential to throw light on the question of intentional dis-
crimination.
We conclude that it was an unreasonable application of
Batson for the Illinois Supreme Court to decline to consider
this evidence as part of the prima facie determination. As
we commented in Mahaffey, “[i]f an excused African-Amer-
ican had characteristics and opinions that were similar to
those of a juror who sat, for example, then an obvious
inference . . . would be that the strike was racially moti-
vated.” Id. at 485. Of course, had Henderson not requested
the comparison analysis, and had he not offered the evi-
dence necessary for a proper analysis, a comparison may

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12 Nos. 00-3834, 00-3778
not have been a “relevant circumstance” for the state court
to consider. But Henderson actually made all the argu-
ments and provided all of the evidence necessary to allow
the court to conduct the analysis.
First, in his appellate brief to the Illinois Supreme Court,
Henderson explicitly asked the court to do a comparison
analysis: “Just as the sole factor shared by 8 black jurors
was their race, the sole factor which distinguished them
from the ten white jurors who were seated [was] also their
race. . . . The record here establishes that the State exer-
cised 8 of 13 peremptory challenges against blacks . . .
whose sole distinguishing characteristic from the ten white
jurors who were selected was also their race.” (Granted,
Henderson did not make this argument before the trial
court, but as we already discussed, we are examining the
Illinois Supreme Court’s decision.)
Henderson then laid out all of the information that the
prosecutor had elicited about the six African-American
venire members who were excluded by the State as well as
the white jurors who ultimately sat on the jury. This
information included the venire members’ marital status,
residence, employment, whether they had children, whether
they had friends or family members who were lawyers or
law enforcement officers, and whether they or a friend or a
family member had ever been victimized by crime. In its
response brief, the State offered several race-neutral ex-
planations for its use of peremptory challenges. First, it
detailed the characteristics that it found “favorable”: having
been a victim of a crime or having a close friend or family
member who was a lawyer or law enforcement officer.
Second, the State claimed that it had removed many of the
African-Americans because they were single and lived
alone.
Henderson’s reply brief focused almost exclusively on the
comparison argument and attempted to show pretext by

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Nos. 00-3834, 00-3778 13
comparing the excluded black venire members with the
accepted white jurors. He argued that of the ten white
jurors originally empaneled, only four were friends or rela-
tives of police officers or lawyers; the State accepted six
white jurors without this characteristic. Of the ten white
jurors, only three had been crime victims; the State ac-
cepted seven white jurors without this characteristic. The
State also accepted five white jurors who possessed neither
of these characteristics and exercised a peremptory chal-
lenge against an African-American venire member who
possessed both of these characteristics. Finally, Henderson
took issue with the argument that most of the excluded
African-Americans were single and lived alone—of the six
African-American jurors excluded, only three were single
and lived alone. And the State accepted two white jurors
who were single and lived alone.
We are troubled by the Illinois Supreme Court’s dismissal
of this evidence; after proper analysis, such statistics might
support a finding of race discrimination in the use of per-
emptory challenges. Evidence of this type is indisputably
part of the “relevant circumstances” that Batson requires
a state court to consider at the prima facie stage. We there-
fore conclude that the Illinois Supreme Court’s decision
rejecting its relevance was an unreasonable application of
Batson. In holding, we offer two caveats: First, we are not
actually making a finding that this evidence supports a
finding of discrimination—such a finding would be appro-
priate only after a proper statistical analysis. Nor are we
conducting the comparison analysis or determining the
validity of the State’s justifications. This will all be the task
of the state courts, should the State choose to pursue this
matter in the proper tribunal. Second, we are not requiring
that a comparison analysis be done at the prima facie
stage of every Batson hearing. This case is about an er-
roneous exclusion of proffered testimony that meets the
relevance standard, not about a possible failure to come

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14 Nos. 00-3834, 00-3778
forward with evidence on either side’s part. In some in-
stances, or perhaps even often, a defendant will not come
forward with comparison evidence until step three; in those
instances, the court will evaluate the prima facie case based
on what is before it. But when a court does have before it all
of the evidence necessary for a comparison analysis, it
cannot simply ignore this evidence.
We also note our concern with the Illinois Supreme
Court’s statement, set forth here, that the fact that the vic-
tim was of the same race as the defendant tended to pre-
clude a finding of purposeful discrimination:
[W]e find that, when deducing the existence of a prima
facie case of purposeful discrimination, whether or not
the defendant and the defendant’s victims are members
of the same cognizable racial group is a relevant factor.
In a case where the defendant is black and the victim is
white, we recognize, at the prima facie stage of estab-
lishing a Batson claim, that there is a real possibility
that the prosecution, in its efforts to procure a convic-
tion, will use its challenges to secure as many white
jurors as possible in order to enlist any racial fears or
hatred those white jurors might possess. On the other
hand, in a case where both the defendants and victim
are black, their racial characteristics do not warrant an
inference, at the prima facie stage, that the prosecution
discriminated against venire members who were black.
Furthermore, we refuse to conclude that the fact that
the defendant is black supports an inference of prosecu-
torial discrimination regardless of the victim’s race. 568
N.E.2d at 1249 (internal citations omitted).
This reasoning, in our view, is not only inconsistent with
the Batson line of cases. It also conflicts with more general
Supreme Court jurisprudence. Batson itself was concerned
with the race of the juror and the defendant, not with that
of the victim: “the Equal Protection Clause forbids the

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Nos. 00-3834, 00-3778 15
prosecutor to challenge potential jurors solely on account of
their race or on the assumption that black jurors as a group
will be unable impartially to consider the State’s case
against a black defendant.” 476 U.S. at 89. In post-Batson
cases, the Supreme Court has made it clear that it is wor-
ried about much more than simple bias or protectionism;
Batson has been interpreted to require race neutrality in
exercising peremptory challenges, regardless of the race of
the defendant, victim, or witness. See Powers v. Ohio, 499
U.S. 400 (1991) (criminal defendant may object to race-
based exclusions of jurors even if the defendant and the
excluded juror do not share the same race); Georgia v.
McCollum, 505 U.S. 42 (1992) (defense counsel also not
allowed to exercise peremptory challenges based on race).
The Court is concerned with race discrimination, the risk of
depriving jurors of a significant opportunity to participate
in civic life, and the risk of undermining confidence in our
system of justice. In short, these cases emphasize the fact
that “a person’s race simply is unrelated to his fitness as a
juror” regardless of the race of the defendant or the victim.
Powers, 499 U.S. at 410 (internal quotations omitted).
Furthermore, the United States Supreme Court has
rejected the logic behind the Illinois Supreme Court’s
theory. As the Court has recognized, people do not always
identify with or protect people from their own racial group.
In Castaneda v. Partida, 430 U.S. 482 (1977), the Court
held that the fact that a county was 79.1% Mexican-Ameri-
can did not dispel a presumption that the county officials
discriminated against Mexican-Americans in summoning
citizens for the grand jury. In other words, sometimes per-
sons of one race discriminate against persons of the same
race—“it would be unwise to presume as a matter of law
that human beings of one definable group will not discrimi-
nate against other members of their group.” Id. at 499. See
also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75
(1998) (holding same-sex sexual harassment actionable

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16 Nos. 00-3834, 00-3778
under Title VII). These cases require us to reject stereotypi-
cal assumptions that African-Americans would want to
protect members of their own race from punishment and
that whites would be more willing to convict an African-
American defendant, depending on the race of the victim.
In the final analysis, we conclude that the critical error
lay in the state court’s application of Batson’s “all circum-
stances” rule, and that this alone is enough to require us
to affirm that part of the district court’s judgment. We
need not decide, therefore, whether the state court’s as-
sumption about the relevance of the victim’s race would
independently require the same result.
III
We turn now to the two issues that Henderson has
presented in his cross-appeal: ineffective assistance of coun-
sel, and ineffective waiver of a sentencing jury. As to these,
we detect no failure on the part of the Illinois Supreme
Court either to identify or to apply in a reasonable fashion
the applicable law as set forth by the United States Su-
preme Court.
A.
When Henderson was arrested for his crimes, he gave
police officers and an assistant state’s attorney a fifteen-
page court-reported confession. Prior to trial, defense coun-
sel moved to suppress the confession, arguing that the
interrogators coerced Henderson’s statement by slapping
him, punching him, and striking him on the head with a
telephone book until he confessed. At the suppression hear-
ing, the only testimony presented was that of Henderson
and the police officers and the assistant state’s attorney
present at the interrogation. Henderson’s counsel did not
offer any medical testimony regarding the alleged beating

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Nos. 00-3834, 00-3778 17
or the resulting hearing loss. In response to Henderson’s
allegation of abuse, the police officers and the assistant
state’s attorney testified that none of them had struck
or punched him. The assistant state’s attorney also tes-
tified that Henderson had never complained to him about
being struck by the police officers. Henderson’s signed
statement indicated that he had been treated fairly and
that no threats had been made. A photograph which was
taken after he gave his statement showed no signs of injury.
And on cross-examination during the hearing, Henderson
testified that during a prison intake examination on the day
after his arrest, he did not complain of any injuries and
stated that he was in good health. The trial court denied the
motion to suppress, finding Henderson’s testimony incredi-
ble when compared to the police officers’ denials of the beat-
ing.
In his post-conviction petition, Henderson argued that his
counsel was ineffective in failing to present medical evi-
dence corroborating his allegations of physical abuse during
his interrogation, including available medical records from
Cermak Health Services and the Illinois Department of
Corrections which indicated that Henderson had suffered
an inner ear injury. The first medical record to which he
referred was the initial report of injury, dated August 19,
1986, which said that Henderson claimed he was hit in the
left ear by police during his interrogation on July 17 or 18.
The report noted that Henderson claimed that his ear had
been bleeding, that he had trouble hearing and that there
was a small perforation on the ear. A second record, dated
December 30, 1986, notes that Henderson complained of
earaches, had wax in his left ear, and that he was given
medication. The next two records indicated that Henderson
had ear wax and that he complained of having bronchitis.
In another record, dated March 24, 1987 (about a month
before the hearing), Henderson complained of having an
earache, headaches, and dizziness. There was a notation

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18 Nos. 00-3834, 00-3778
that read “one [i]nmate hit him on the [left] side of the
head.” In an April 7, 1987, record, there was a notation of
“head trauma 2d fight.”
The Illinois Supreme Court found that the medical rec-
ords were ambiguous in their support for Henderson’s
motion for suppression. People v. Henderson, 662 N.E.2d
1287, 1298 (Ill. 1996). Critically, it was impossible to tell
from the records when Henderson’s hearing loss occurred
or how it occurred, and an inference could be drawn that
the hearing loss was caused by subsequent fights with other
inmates rather than a police beating. Thus, counsel’s failure
to present the records was within the range of normal
professional competence. Additionally, the court found that
the outcome of the suppression hearing would probably
not have changed had the records been entered because
the State had considerable evidence to support its claim of
voluntariness: the confession, the testimony of the police
and the assistant state’s attorney’s testimony, the lack of
any complaints of injury prior to the hearing, and the
photos taken after the interrogation which did not show any
injury. Id. at 1297-98. Both the lack of any conclusive
support for Henderson’s theory and the strength of the
State’s case meant that counsel’s decision, whether compe-
tent or not, caused no prejudice to Henderson. The court
accordingly found that, under the standards established by
the Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984), Henderson had not established a claim of
ineffective assistance of counsel. Henderson, 662 N.E.2d at
1296-98.
The district court found that the State court’s dismissal
of the ineffective assistance claim was not an unreasonable
application of the Strickland rule. Under Strickland, a
defendant alleging ineffective assistance of counsel must
show that trial counsel’s performance fell below “an objec-
tive standard of reasonableness,” 466 U.S. at 688, and “that
there is a reasonable probability that, but for counsel’s

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Nos. 00-3834, 00-3778 19
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. It could have been ineffec-
tive for defense counsel to fail to use available evidence to
corroborate Henderson’s testimony, see Washington v.
Smith, 219 F.3d 620, 632 (7th Cir. 2000), but the medical
records here did not provide such corroboration. The records
established only that Henderson was complaining about
earaches and hearing loss; the records could not establish
with any degree of certainty the source of Henderson’s ear
problems. To the contrary, given the repeated references to
Henderson’s involvement in prison fights, the medical rec-
ords create a strong inference that the injury was inflicted
by a fellow inmate. Additionally, the state court reasonably
concluded that Henderson could not show that there was
a reasonable probability that, had the medical records
been presented, the judge would have suppressed the con-
fession.
Henderson argues, however, that a decision on the merits
of the ineffective assistance claim is premature because
he has not yet been allowed discovery on this issue. Right
after filing his § 2254 petition, Henderson moved under 21
U.S.C. § 848(q)(4)(B) and Habeas Corpus Rule 6(a) for the
court to appoint a medical expert to examine his ear. The
district court denied the motion, U.S. ex rel. Henderson v.
Page, No. 97 C 1079, 1997 WL 399623 (N.D. Ill. July 11,
1997), and also denied Henderson’s motion for reconsidera-
tion. He argues now that a deposition of a medical expert
was necessary in order to support his ineffective assistance
claim.
A § 2254 petitioner is allowed to invoke discovery, but
only “if and to the extent that, the judge in the exercise of
his discretion and for good cause shown grants leave to do
so, but not otherwise.” Habeas Corpus Rule 6(a); see also
Bracy v. Gramley, 520 U.S. 899, 904 (1997). In order to
meet the Rule 6(a) requirements, Henderson must (1) make
a colorable claim showing that the underlying facts, if

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20 Nos. 00-3834, 00-3778
proven, constitute a constitutional violation; and (2) show
“good cause” for the discovery. See Harris v. Nelson, 394
U.S. 286, 298-300 (1969). As we already discussed, Hen-
derson has not presented a colorable claim of ineffective
assistance. In some cases, it may be incompetent for trial
counsel to fail to have a defendant examined by a medical
expert, see U.S. ex rel. Emerson v. Gramley, 883 F. Supp.
225, 244 (N.D. Ill. 1995), aff’d, 91 F.3d 898 (7th Cir. 1996),
but Henderson has not shown that, in his case, the medical
expert’s testimony would have made a difference. A medical
expert could not conclusively establish who struck Hen-
derson in the ear or even how he was struck. Additionally,
any new medical evidence would have been rebutted by the
contemporaneous testimony of the police officers, the as-
sistant state’s attorney, the post-interrogation photos, and
the fact that Henderson had never complained earlier about
the abuse. Under the circumstances, the district court
did not abuse its discretion in refusing to permit this
discovery.
B.
During a pre-trial discussion of possible voir dire ques-
tions, Henderson’s counsel told the judge that his client was
prepared to waive his right to a jury for sentencing pur-
poses. The questioning of Henderson proceeded as follows:
COURT: If you are found guilty, there first has to be a
hearing to determine whether or not you are eligible for
the death penalty. There is [sic] a number of factors
that enter into that and it is a decision I make as the
judge. Assuming that you were eligible for the death
penalty then there has to be a hearing by the same jury
who decided guilt or innocence as to whether or not that
penalty is appropriate for you as an individual pertain-
ing to this crime and the other factors that I’m sure you

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Nos. 00-3834, 00-3778 21
have gone over with your lawyer. Do you understand all
that?
HENDERSON: Yes.
COURT: You have a right to have a jury determine
that or you can have the judge determine that, in this
case that would be me. Do you understand that?
HENDERSON: Yes.
COURT: If you make a decision to have me decide it
and not the jury then at this point the jury just decides
your guilt or innocence and that is the last thing the
jury does, they go home and they don’t make any other
decisions. Do you understand that?
HENDERSON: Yes.
COURT: And then I would make the other decision in
the case regarding the second and third stage I told you
about. Okay? Do you understand that?
HENDERSON: Yes, sir.
COURT: And your lawyer has just told me that it is
your decision at this point not to have a jury decide
whether or not the death penalty is appropriate if, in
fact, we get to that part of the case. Is that correct?
HENDERSON: Yes.
COURT: And you would rather have me decide that
rather than a jury, is that right?
HENDERSON: Yes
* * *
COURT: Mr. Linn [defense counsel], do you feel that
your client understands sufficient to make this decision
with you?

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22 Nos. 00-3834, 00-3778
MR. LINN: Yes
COURT: Mr. Henderson, I will ask you one more time,
should we get to the point where the State is requesting
a hearing as to whether the death penalty is appropri-
ate, do you want me to hear it rather than twelve
people from the community?
HENDERSON: Yes, I do.
Henderson then signed a written waiver stating that “I
hereby waive my right to have a Jury determine whether
the Death Penalty should be imposed.” As already men-
tioned, the judge, rather than a jury, ultimately determined
Henderson’s sentences.
In his appeal to the Illinois Supreme Court, Henderson
argued that he did not knowingly and intelligently waive
his right to have a sentencing jury because the trial judge
incorrectly explained who would make the eligibility de-
termination. The trial judge told Henderson that even if
Henderson did not waive his right to a sentencing jury, he,
the judge, would still make the eligibility determination.
Henderson is correct that Illinois law requires that the
sentencing jury, if there is one, is the entity that determines
eligibility for the death penalty. The Illinois Supreme Court
agreed with him on this point and found that the judge had
indeed made a misstatement. In spite of that mistake,
however, the Illinois Supreme Court went on to find that
Henderson’s waiver was knowing and intelligent. It relied
on a number of facts for that conclusion: Henderson con-
sulted with his attorney; he said he understood the conse-
quences of waiver; his attorney said that he thought Hen-
derson’s decision was made knowingly and intelligently;
and finally, Henderson had already made his decision with
his lawyer before the judge made the misstatement, and
so his waiver decision probably was not based on the
judge’s misstatement of law. 568 N.E.2d at 1270-71.

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Nos. 00-3834, 00-3778 23
Henderson also argued that his waiver was not know-
ing and intelligent because the trial judge did not tell
him that a jury’s decision to sentence him to death would
have to be unanimous. However, the Illinois Supreme Court
has consistently held that failure to do this is not reversible
error, see People v. Buggs, 493 N.E.2d 332 (Ill. 1986), People
v. Albanese, 473 N.E.2d 1246 (Ill. 1984), and Henderson
gave the court no reason to reconsider its earlier holdings.
568 N.E.2d at 1271.
In his § 2254 petition, Henderson argued that the court’s
decision that the waiver was voluntary and knowing was
“contrary to” Brady v. United States, 397 U.S. 742, 748
(1970) (waivers “not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of
the relevant circumstances and likely consequences”) and
Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279 (1942)
(accused can only waive constitutional rights “if he knows
what he is doing and his choice is made with eyes open”).
These cases and others establish the broad proposition
that any waiver must be knowing and voluntary, but they
do not deal with the narrow issue of whether a misstate-
ment about the eligibility determination or failure to inform
a capital defendant about the “one juror rule” makes a
waiver invalid. Our task is to decide whether the Illinois
Supreme Court’s decision was an unreasonable application
of cases like Brady and McCann. We find that it was not.
The Illinois Death Penalty Statute affords capital defen-
dants the absolute right to a jury for sentencing unless the
defendant waives that right. Ill. Rev. Stat 1983, Ch. 38, sec.
9-1(d). If the defendant does not waive his right to a jury,
the jury, not the judge, determines eligibility. Id. at sec. 9-
1(g). Henderson argues that his waiver of a sentencing jury
was not made knowingly since the judge misinformed him
about the jury’s role in the eligibility phase of his death

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24 Nos. 00-3834, 00-3778
penalty hearing. The Illinois Supreme Court found this
argument for the reasons we have already described.
We agree with the state court that Henderson cannot
establish a link between the misstatement regarding the
eligibility determination and his decision to waive his right.
Not only was the decision seemingly made before the judge
made his misstatement, but also, as the district court noted,
Henderson’s eligibility for the death penalty was a foregone
conclusion—he was over 18 at the time of the murder and
he committed the murder in the course of another felony
(kidnapping and rape). The only way the jury could have
found that Henderson was not eligible for the death penalty
was if it had disregarded the governing legal standards.
Henderson has no right to such jury nullification. United
States v. Perez, 86 F.3d 735, 736 (7th Cir. 1996).
Henderson’s reliance on his alleged lack of knowledge
about the “one juror” rule in the Illinois Death Penalty
Statute fails for another reason. That rule requires jurors
to agree unanimously before they may impose the death
penalty (Id. at sec. 9-1(g)). If the jury does not unanimously
agree, a term of imprisonment must be imposed by the
court. Id. This court has issued opinions recognizing the
importance of a defendant’s knowledge of the unanimity
requirement, see Hall v. Washington, 106 F.3d 742, 752-53
(7th Cir. 1997) (attorney’s failure to inform his client about
the one juror rule can contribute to a finding of ineffective
assistance of counsel) and St. Pierre v. Cowan, 217 F.3d
939, 951 (7th Cir. 2000) (waiver can be invalidated if a
judge affirmatively misinforms a defendant about the one
juror rule). As a practical matter, we suspect that the un-
animity requirement is perhaps the most important factor
a defendant should consider before waiving his right to
a sentencing jury. After all, intuition suggests that a chance
at persuading one out of twelve people to recommend mercy
will often be better than a chance to persuade one out of

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Nos. 00-3834, 00-3778 25
one. Nevertheless, the United States Supreme Court has
never ruled that a judge must make a capital defendant
aware of the one juror rule, and has in fact denied certiorari
in cases in which state supreme courts have determined
that a waiver was valid even when a capital defendant was
not told about the unanimity requirement. See Jells v. Ohio,
498 U.S. 1111 (1991); Robertson v. California, 493 U.S. 879
(1989). Until the Court does so, and makes such a ruling
applicable to cases on collateral review, this argument can-
not succeed.
IV
For these reasons, we A FFIRM the judgment of the district
court in its entirety. Specifically, we affirm the grant of the
writ of habeas corpus, unless the State chooses within 120
days of the mandate of this court to seek a Batson hearing
in the state court.
C OFFEY , Circuit Judge, concurring.
I.
I concur with the majority’s holding that while it is not
the trial court’s obligation to search for evidence suggesting
that the State struck potential jurors on the basis of race,
the trial court also may not refuse to consider evidence
proffered by a defendant attempting to raise a prima facie
case of discrimination in the jury selection process. Thus, I
agree with the majority’s statement that in the extraordi-
nary case when a defendant “request[s] a comparison an-

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26 Nos. 00-3834, 00-3778
1 See, e.g., Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir. 1995);
Valdez v. People, 966 P.2d 587, 595 n.17 (Col. 1998); Jefferson v.
United States, 631 A.2d 13, 23 n.7 (D.C. 1993) (Rogers, C.J., dis-
senting); State v. Duncan, 802 So.2d 533, 552 (La. 2001); Stanley
v. State, 542 A.2d 1267, 1277 n.11 (Md. 1988); Mack v. State, 650
So.2d 1289, 1298 (Miss. 1994); State v. King, 546 S.E.2d 575, 586
(N.C. 2001); Commonwealth v. Hill, 727 A.2d 578, 583 (Pa. 1999);
State v. Evans, 998 P.2d 373, 381 (Wash. Ct. App. 2000).
alysis and provide[s] the court with all of the relevant
characteristics of the excluded and accepted venire mem-
bers,” the trial court may not “exclude from the prima facie
case an entire category of evidence that has the potential
to throw light on the question of intentional discrimina-
tion.” Ante at 11.
However, I am unable to join the majority’s expression of
“concern with the Illinois Supreme Court’s statement . . .
that the fact that the victim was of the same race as the
defendant tended to preclude a finding of purposeful dis-
crimination” in this case. Ante at 14. I believe that when-
ever a Batson hearing takes place, one of the many relevant
factors in the analysis of whether the State engaged in
intentional discrimination must include whether the strick-
en venirepersons were of the same race as the defendant
and the victim. 1
I condemn racism, as do most other people worthy of
being called citizens of this great country, and I believe it is
the duty of the trial judge to ensure that the jury selection
process is free of any hint of racism and/or prejudice. At the
same time, I feel strongly that appellate courts should
exercise great restraint and avoid interfering with the trial
judge’s ultimate determination—based upon the court
record and upon the judge’s observations, judgment, and life
experiences—of whether there has been a Batson violation
in any given case.

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Nos. 00-3834, 00-3778 27
2 See, e.g., United States v. Marin, 7 F.3d 679, 686 n.4 (7th Cir.
1993); United States v. Causey, 185 F.3d 407, 412-13 (5th Cir.
1999); Mack, 650 So.2d at 1298; see also Georgia v. McCollum, 505
U.S. 42, 60-61 (1992) (Thomas, J., concurring).
Indeed, some social science research indicates that black jurors
are, in fact, more likely than members of other races to convict
black defendants in cases involving black victims. See, e.g., D.C.
Ugwuegbu, Racial and Evidential Factors in Juror Attribution of
Legal Responsibility, 15 J. E XPTL . S OC . P SYCH . 133 (1979); M. Mil-
ler & J. Hewitt, Conviction of a Defendant as a Function of Juror-
Victim Racial Similarity, 105 J. S OC . P SYCH . 159 (1978); see also
C. Lee, Race and the Victim, 73 C HI .-K ENT L. R EV . 533, 545-46
(1998); D.A. Clay, Race and Perception in the Courtroom, 67 T UL .
L. R EV . 2335, 2353 (1993). Because no rational prosecutor would
strike venirepersons who he believes are sympathetic to his case,
it is reasonable for a trial judge to believe that a prosecutor would
(continued...)
When Batson hearings are held in cases dealing with a
black defendant and a black victim, the trial judge may very
well doubt that the prosecutor was striking black venire-
persons on the basis of their race. The vast majority of
counsellors I have dealt with, whether for the defense or
the prosecution, are upstanding, conscientious public ser-
vants who take seriously their obligations under Batson v.
Kentucky, 476 U.S. 79 (1986), and believe that men and
women of all races are equally able to evaluate cases in an
impartial manner based solely on the evidence presented
to them. If the judge has knowledge of or is advised by
some other reliable source that the prosecutor believes
that race is an irrelevant factor, then the judge might be
more likely to believe that the prosecutor’s proffered race-
neutral reason for striking an individual black venireperson
is truthful. Thereafter, upon review of the entire record
and based upon his or her knowledge and observations, the
trial judge may rule that the defendant has failed to carry
his burden of establishing a constitutional violation. 2 Thus,

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28 Nos. 00-3834, 00-3778
(...continued)
not strike black venirepersons in cases involving a black defen-
dant and a black victim.
I believe, unlike the majority, “that the fact that the vic-
tim was of the same race as the defendant” may, indeed,
“tend[ ] to preclude a finding of purposeful discrimination
by the prosecution,” provided that this fact is considered
along with all the other facts and evidence in the record.
See id. at 96-98.
II.
I also wish to comment on the value of the statistical
evidence proffered by Henderson in an effort to establish
discrimination in the jury selection process in this case.
According to Henderson, his statistics demonstrate that the
Government used peremptory challenges to strike more
blacks from the venire panel than similarly-situated whites.
Although the majority states, on the one hand, that “we are
not actually making a finding that this evidence supports a
finding of discrimination,” the majority goes on to state that
“after proper analysis, [Henderson’s] statistics might sup-
port a finding of race discrimination” and that “such a find-
ing would be appropriate only after a proper statistical
analysis.” Ante at 13. I write separately to point out and
make clear that this present record is barren of any evi-
dence except Henderson’s statistics and that the trial judge
should not rely solely on statistical evidence, standing alone
without consideration of all the other facts and circum-
stances in the record, to find discrimination. Statistical
evidence must always be considered along with all the other
materials in the record and may not be given controlling
weight as a matter of law.
I well remember Mark Twain’s adage (which was later
repeated in Griffin v. Board of Regents, 795 F.2d 1281 (7th

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Nos. 00-3834, 00-3778 29
Cir. 1986)) that “[t]here are three kinds of lies—lies,
damned lies and statistics.” Id. at 1289. Statistics may be,
and frequently are, very helpful and trustworthy when
properly calculated and properly applied to the situation
at hand along with all of the other evidence in the rec-
ord. However, when viewed in isolation without proper con-
sideration of the entire record, a statistical comparison il-
lustrating the prosecutor’s use of peremptory challenges
against “similarly-situated” black and white venirepersons
is of little value, for the statistics may fail to account for
“the variety of factors and considerations that go into a
lawyer’s decision to select certain jurors while challenging
others that appear to be similar.” People v. Johnson, 767
P.2d 1047, 1056 (Cal. 1989). Some of the myriad of potential
factors for striking potential jurors might include not mere-
ly whether the juror has a prior police record but also the
severity of the criminal history; not only whether the juror
was a victim of crime but also the nature of the crime and
the date of the event; not only whether the juror’s family
has had prior contacts with law enforcement officers or
attorneys, but also the nature and number of those contacts
as well as the quality of the friendly and unfriendly rela-
tionship between the venireperson and the relative involved
and law enforcement officer involved.
“Trial lawyers recognize that it is a combination of factors
rather than any single one which often leads to the exercise
of a peremptory challenge. In addition, the particular com-
bination or mix of jurors which a lawyer seeks may, and
often does, change as certain jurors are removed or seated
in the jury box.” Id. Thus:
It may be acceptable, for example, to have one juror
with a particular point of view but unacceptable to have
more than one with that view. If the panel as seated
appears to contain a sufficient number of jurors who
appear strong-willed and favorable to a lawyer’s posi-
tion, the lawyer might be satisfied with a jury that

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30 Nos. 00-3834, 00-3778
includes one or more passive or timid appearing jurors.
However, if one or more of the supposed favorable or
strong jurors is excused either for cause or peremptory
challenge and the replacement jurors appear to be
passive or timid types, it would not be unusual or
unreasonable for the lawyer to peremptorily challenge
one of these apparently less favorable jurors even though
other similar types remain. These same considerations
apply when considering the age, education, training,
employment, prior jury service, and experience of the
prospective jurors.
It is also common knowledge among trial lawyers that
the same factors used in evaluating a juror may be given
different weight depending on the number of peremptory
challenges the lawyer has at the time of the exercise of
the particular challenge and the number of challenges
remaining with the other side. Near the end of the voir
dire process a lawyer will naturally be more cautious
about “spending” his increasingly precious peremptory
challenges. Thus at the beginning of voir dire the law-
yer may exercise his challenges freely against a person
who has had a minor adverse police contact and later
be more hesitant with his challenges on that ground
for fear that if he exhausts them too soon, he may be
forced to go to trial with a juror who exhibits an even
stronger bias. Moreover, as the number of challenges
decreases, a lawyer necessarily evaluates whether the
prospective jurors remaining in the courtroom ap-
pear to be better or worse than those who are seated. If
they appear better, he may elect to excuse a previously
passed juror hoping to draw an even better juror from
the remaining panel.
Id. at 1056-57.
It should be apparent, therefore, that the very dynamics
of the jury selection process make it difficult, if not impossi-

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Nos. 00-3834, 00-3778 31
ble, to focus exclusively on statistics when comparing the
peremptory challenge of one juror with the retention of
another juror who on paper appears to be substantially
similar. I make this point for I trust that the Illinois state
courts will not be left with the misconception that Hen-
derson’s statistical evidence, standing alone, will necessar-
ily support a finding that the State discriminated in the
jury selection process.
We must never forget that “a trial lawyer’s judgments
about a juror’s sympathies are sometimes based on experi-
enced hunches and educated guesses derived from a ju-
ror’s responses at voir dire or a juror’s ‘bare looks and ges-
tures.’ ” J.E.B. v. Alabama, 511 U.S. 127, 148 (1994) (O’Con-
nor, J., concurring). The trial judge normally determines
whether an improper factor motivated a lawyer’s use of a
peremptory challenge not by looking at statistics alone but
by judging the lawyer’s credibility. See Marin, 7 F.3d at 686
(quoting United States v. Williams, 934 F.2d 847, 849 (7th
Cir. 1991)). As we have previously stated:
A trial judge develops an intuitive sense for evaluating
the actions played out in the courtroom. An evalua-
tion—such as determining credibility—is often difficult
to make from reviewing a written transcript (or even
viewing a video replay). It is the trial judge’s sensory
perceptions of what occurs during the course of a case,
combined with an understanding of the bar and the
public gained from experience in the community served
by the court, which provides the trial judge with a
unique insight [into the question of discrimination].
Id.; see also J.E.B., 511 U.S. at 158 (Scalia, J., dissenting)
(“I am less inclined to demand statistics, and more inclined
to credit the perceptions of experienced litigators who have
had money on the line.”).
Having made these observations, I concur in the majority
opinion.

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32 Nos. 00-3834, 00-3778
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-9-02

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