Edward Spreitzer v. James M. Schomig, Warden

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2474
Edward Spreitzer,
Petitioner-Appellant,
v.
James M. Schomig, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 92 C 2182--David H. Coar, Judge.
Argued May 17, 2000--Decided July 11, 2000
Before Bauer, Coffey and Kanne, Circuit Judges.
Kanne, Circuit Judge. Edward Spreitzer is under
a sentence of death. He appeals the dismissal of
his habeas corpus petition that was remanded to
the district court following our decision in
Spreitzer v. Peters, 114 F.3d 1435 (7th Cir.
1997). First, he claims that the district court
erred in finding that a procedural default barred
certain ineffective assistance of counsel claims.
Second, he claims that the court erred by
refusing to grant him evidentiary hearings to
determine whether he was denied the effective
assistance of counsel when his attorney failed to
develop mitigating evidence of brain damage or
investigate his good prison conduct. Finding that
Spreitzer has procedurally defaulted his claims,
we affirm.
I. History
On March 4, 1986, in an Illinois state court,
Spreitzer was found guilty of the aggravated
kidnapping and murder of Linda Sutton. He
previously had pleaded guilty to the murders of
four other individuals and admitted involvement
in four more murders. The very gruesome facts
that underlie these offenses, which include a
string of kidnappings, tortures, rapes and
murders, are recounted thoroughly in the Illinois
Supreme Court’s opinion on Spreitzer’s direct

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appeal. See People v. Spreitzer, 525 N.E.2d 30,
32-33 (Ill. 1988) ("Spreitzer I"). On the basis
of his offenses, the State of Illinois requested
that Spreitzer receive the death penalty.
Spreitzer received a sentencing hearing before
a jury to determine if he was eligible to receive
the death penalty. At the hearing, the jury heard
testimony from Dr. Kent Mohr, a court-appointed
clinical psychologist, that Spreitzer had an IQ
of 76, had a "schizoid personality," related to
people in an inferior way and responded to his
environment in an impulsive way. Mohr had
previously met with Spreitzer and performed
diagnostic tests, including a Bender Visual
Gestalt test, but Mohr did not have Spreitzer
submit to a complete neurological examination,
which would have included an MRI and blood tests.
Spreitzer testified on his own behalf that he
knew his actions were wrong, that he would have
reported them eventually and that he felt at
peace in prison. The jury also heard evidence of
the nature of Spreitzer’s conduct and of his age
and previous guilty pleas. The jury found
Spreitzer eligible to receive the death penalty,
and the circuit court imposed a sentence of sixty
years for kidnapping Sutton and a death sentence
for her murder.
Spreitzer timely filed a direct appeal of his
conviction, in which he alleged a conflict of
interest in the public defender’s office as well
as a number of issues related to sentencing.
However, at this time, Spreitzer did not argue
that his sentencing counsel was ineffective.
Spreitzer argued that he was deprived of a fair
sentencing hearing by improper cross-examination
made by the prosecutor. He claimed that the
prosecutor cross-examined him about "devil-
worshipping" in violation of a stipulation
against so doing, improperly mentioned the
victims’ families, attempted to elicit sympathy
for the victims, appealed to the fears of jurors,
argued that Spreitzer was racially prejudiced,
attempted to dehumanize him, speculated about his
and co-defendant Robin Gecht’s character and
personality traits and misstated the applicable
burden of proof. See Spreitzer I, 525 N.E.2d at
43. The Illinois Supreme Court dismissed these
claims on a finding that these errors were
individually and cumulatively harmless and that
the issue of "devil worship" had been waived
because the defendant did not object to it at the
sentencing hearing, see id. at 44, but reduced
Spreitzer’s kidnapping sentence from sixty years
to the statutory maximum thirty years. See id. at
50. Following the dismissal of his direct appeal,
the United States Supreme Court denied
Spreitzer’s petition for certiorari. See
Spreitzer v. Illinois, 488 U.S. 917 (1988).

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Spreitzer then filed a six-count pro se
petition for post-conviction relief with the
state trial court, claiming inter alia that he
was deprived of the right to effective counsel at
sentencing. The court appointed counsel to
represent Spreitzer, and Spreitzer’s appointed
counsel presented each of Spreitzer’s claims at
a hearing held on his petition, but did not
attach affidavits to the petition alleging
additional evidence that would show ineffective
assistance of sentencing counsel. The trial court
denied Spreitzer’s petition. The court did not
hold an evidentiary hearing on the issue whether
the ineffective assistance of sentencing counsel
claims had been waived by not being raised on
direct appeal. Spreitzer appealed this denial to
the Illinois Supreme Court, raising three claims,
including (1) that he had not been provided with
effective counsel for the post-conviction relief
hearing because his appointed counsel failed to
append evidence of sentencing counsel’s
ineffective investigation, (2) that he had been
deprived of effective counsel during his pretrial
motion to quash his arrest and (3) that the
sentencing court should have permitted the jury
to hear Spreitzer’s counsel present an
alternative sentence of life imprisonment without
parole. See People v. Spreitzer, 572 N.E.2d 931
(Ill. 1991) ("Spreitzer II"). Spreitzer did not
reiterate the claim made before the state trial
court that his sentencing counsel was
ineffective, but he did argue in his reply brief
that the court had incorrectly applied the waiver
doctrine to these claims.
The Illinois Supreme Court held that the issues
raised under the rubric of ineffective assistance
of counsel were not raised on direct appeal,
which meant that waiver or res judicata applied.
For this reason, the merits of Spreitzer’s claims
on appeal were irrelevant; the only claim
Spreitzer could raise about effectiveness was
whether his counsel should have researched issues
concerning waiver or res judicata. Because
Spreitzer did not argue that waiver would not bar
these claims, the Illinois Supreme Court found no
prejudice in the counsel’s failure to do so and
denied these claims. See id. at 936. The court
also found that the sentencing court need not
have instructed the jury about an alternative
sentence of life imprisonment without the
possibility of parole. See id. at 937. On these
bases, the Supreme Court denied Spreitzer’s
petition. See id. at 937. The United States
Supreme Court again denied Spreitzer’s petition
for certiorari. See Spreitzer v. Illinois, 502
U.S. 985 (1991).
Spreitzer then filed a petition for habeas

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corpus relief in federal court under 28 U.S.C.
sec. 2254. In his petition, Spreitzer raised six
issues, including allegations he previously made
of prosecutorial misconduct, the sentencing
court’s wrongful failure to instruct on an
alternative sentence, a conflict of interest in
his representation, ineffective assistance of
pre-trial counsel on a motion to quash and of
sentencing counsel (but not of post-conviction
counsel) and the unconstitutionality of the death
penalty. The district court denied all
Spreitzer’s claims unrelated to sentencing, but
held that the state trial court should have given
Spreitzer’s proposed instruction on the
alternative sentence and granted Spreitzer’s
petition to allow re-sentencing. Because it
vacated Spreitzer’s sentence, the district court
declined to rule on sentencing issues unrelated
to the instruction issue. On appeal, we reversed
the district court on the instruction issue,
finding that the state trial court was not
required to allow the jury to hear about
alternative sentences, but affirmed the district
court’s denial of Spreitzer’s other claims. We
remanded the habeas petition to resolve
Spreitzer’s sentencing claims that the district
court left undecided. See Spreitzer v. Peters,
114 F.3d 1435, 1447 (7th Cir. 1997). In addition,
we found that Spreitzer’s death sentence should
be reinstated.
On remand, the district court confronted two
issues: prosecutorial misconduct at sentencing
and ineffective assistance of sentencing counsel.
The district court found that the former claim
had been correctly resolved by the Illinois
Supreme Court on direct appeal and that Spreitzer
had waived his ineffective assistance of
sentencing counsel claims. The court found waiver
because the Illinois Supreme Court had found that
the inadequate assistance claims should have been
made on direct appeal, which constituted an
independent and adequate ground sufficient to
justify dismissal. Nonetheless, the district
court considered both of these claims on their
merits. The court found that Spreitzer’s claims
of ineffective assistance of counsel were
meritless because in each case Spreitzer had
failed to make an adequate showing of prejudice.
The court refused to grant Spreitzer an
evidentiary hearing to determine whether the
evidence that he presented established a
deficiency in his prior representation.
Therefore, the district court denied both
remaining claims and dismissed his habeas corpus
petition.
Spreitzer now claims that the district court
erred in finding his ineffective assistance of
counsel claims waived. Spreitzer does not appeal

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the district court’s denial of his prosecutorial
misconduct claim. Spreitzer contends that the
district court erred by refusing to grant him an
evidentiary hearing on his ineffective assistance
claims because its finding of no prejudice was
speculative without the benefit of an evidentiary
hearing.
II. Analysis
We review de novo Spreitzer’s allegations of
constitutional error in the context of a habeas
petition. See Crivens v. Roth, 172 F.3d 991, 995
(7th Cir. 1999). Because Spreitzer filed his
petition prior to the passage of the
Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA") Pub. L. No. 104-132, 110 Stat.
1214 (1996), we consider his arguments under pre-
AEDPA law. See Lieberman v. Washington, 128 F.3d
1085, 1091 (7th Cir. 1997). We apply a
presumption of correctness to state court
determinations of factual issues. See Porter v.
Gramley, 112 F.3d 1308, 1316 (7th Cir. 1997).
A. Waiver
Prior to reaching the merits of any
constitutional claim raised in his habeas corpus
petition, we review the district court’s
determination that Spreitzer defaulted his
claims. A federal court must ensure that the
habeas corpus petitioner has overcome two
procedural hurdles, exhaustion and procedural
default, before reaching the merits of his claim.
See Henderson v. Thieret, 859 F.2d 492, 496 (7th
Cir. 1988). "Failure to raise all claims during
the course of the state court proceedings bars
consideration of those claims not raised." Jones
v. Washington, 15 F.3d 671, 674 (7th Cir. 1994),
overruled on other grounds by Hogan v. McBride,
74 F.3d 144, 147 (7th Cir. 1996). Likewise,
before bringing his claims in a federal habeas
proceeding, a prisoner must first raise his
claims during the course of the state proceedings
in order to avoid procedural default. Henderson,
859 F.2d at 496. The district court dismissed
Spreitzer’s claims on the ground that Spreitzer
had defaulted procedurally by failing to raise
these claims prior to his state post-conviction
petition. On appeal, the state also argues that
these claims were waived because Spreitzer failed
to exhaust his available state court remedies on
these claims. Because we agree with the state
that Spreitzer’s claims are barred by his failure
to exhaust available state court remedies, we do
not rule on whether the district court correctly
found that his federal claims were barred on
adequate and independent state grounds.
1. Exhaustion

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The state presents an alternative ground for
the dismissal of Spreitzer’s ineffective
assistance claims, arguing that federal courts
should not review Spreitzer’s petition because he
failed to exhaust all available state court
remedies. Spreitzer raised his remaining claims
of the ineffectiveness of sentencing counsel at
the post-conviction proceeding, but changed
tactics on appeal to the Illinois Supreme Court,
contending that his post-conviction counsel,
rather than his sentencing counsel, failed to
provide effective representation. For this
reason, the state contends that the Illinois
Supreme Court was never presented with the issue
of the ineffectiveness of sentencing counsel.
Federal law requires that state prisoners give
state courts a fair opportunity to act on their
claims before bringing habeas claims in federal
court. See 28 U.S.C. sec. 2254(c); see also
O’Sullivan v. Boerckel, 526 U.S. 838, 844-45
(1998); Kurzawa v. Jordan, 146 F.3d 435, 440 (7th
Cir. 1998). The requirement that state courts
have the first opportunity to cure a claim of
continued confinement in an unconstitutional
fashion stems from the understanding that state
courts are equally obliged to follow federal law
and from the desire for comity between state and
federal court systems. See O’Sullivan, 526 U.S.
at 844-45; Coleman v. Thompson, 501 U.S. 722, 731
(1991). A "fair presentment" of a petitioner’s
claims requires that a petitioner give state
courts "a meaningful opportunity to pass upon the
substance of the claims [petitioner] later
presses in federal court." Howard v. O’Sullivan,
185 F.3d 721, 725 (7th Cir. 1999).
In Howard, we faced a very similar claim to
Spreitzer’s. Howard, 185 F.3d at 725. The
petitioner initially claimed ineffective
assistance of sentencing counsel in his post-
conviction petition before the state trial court.
Following the dismissal of this petition for
insufficient evidence, the petitioner changed
tactics and argued only the ineffective
assistance of post-conviction counsel to the
state appellate courts, without pursuing the
ineffective assistance of sentencing counsel
claims. The state appellate courts affirmed
denial of the post-conviction relief, so he filed
a federal habeas petition, which was denied by
the district court. We affirmed the dismissal of
the petitioner’s federal habeas claim, holding
that we were barred from reviewing the
petitioner’s claim because "by changing the basis
of his argument between the trial court and the
appellate court, [the petitioner] did not fairly
present the question of ineffective assistance of
trial counsel to the Illinois Appellate Court.
Accordingly, he has procedurally defaulted that

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claim." Id.; see also Momient-El v. DeTella, 118
F.3d 535, 540-41 (7th Cir. 1997) (finding that
failure to appeal issues raised in an Illinois
post-conviction proceeding results in procedural
default).
Spreitzer’s post-conviction appellate counsel
made the same error as in Howard. His post-
conviction counsel argued that Spreitzer’s
sentencing counsel failed to represent him
effectively by insufficiently developing evidence
of organic brain defects or of Spreitzer’s good
conduct while incarcerated. However, on appeal to
the Illinois Supreme Court, Spreitzer’s appellate
counsel jettisoned these arguments, choosing
instead to argue that the ineffectiveness of
Spreitzer’s post-conviction counsel required the
Illinois Supreme Court remand Spreitzer’s case to
the trial court to appoint new post-conviction
counsel. The court denied this claim because
Spreitzer failed to present evidence that his
post-conviction counsel had actually been
ineffective or that this ineffective
representation had prejudiced him. See Spreitzer
II, 572 N.E.2d at 936.
Spreitzer did not present the complaints that
he raised in his federal habeas corpus petition
to the Illinois Supreme Court. He did not brief
this issue to the Illinois Supreme Court, nor did
the Supreme Court address sua sponte whether he
was denied effective representation at sentencing
by his counsel’s failure to investigate fully
matters relating to organic brain defects or his
prison conduct. Thus, the Illinois Supreme Court
never had a fair opportunity to rule on these
claims, and we are barred from considering them
here unless Spreitzer establishes that his case
meets one of the exceptions to procedural default
that we set forth below.
2. Fair Presentment
Spreitzer argues that his claims should not be
barred for failure to exhaust his administrative
remedies. He contends that the Illinois Supreme
Court was fairly presented with the question of
the competence of sentencing counsel because he
raised this issue in his petition for post-
conviction relief, and he believes that the
Illinois Supreme Court reviewed the decision of
the post-conviction trial court in its dismissal
of the claim by finding that the trial court’s
dismissal was based on waiver and res judicata.
According to Spreitzer, both parties briefed the
question whether the district court ruled
correctly on the remaining claims at the post-
conviction proceedings, and the Illinois Supreme
Court’s affirmance of the post-conviction court’s
dismissal thus constitutes a fair presentment of

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these claims.
Spreitzer’s argument misstates the procedural
posture under which the Illinois Supreme Court
analyzed the post-conviction court’s holding. In
his opening brief to the Supreme Court, Spreitzer
argued that his post-conviction counsel failed to
provide effective representation because he did
not attach appendices containing new evidence to
Spreitzer’s post-conviction petition and asked
that the Supreme Court remand the claim to post-
conviction court for appointment of new counsel.
The state responded that this failure could not
constitute prejudice because the post-conviction
court based its holdings on these issues on
waiver or res judicata, rather than on a failure
to append additional evidence, and for this
reason, it was unnecessary to remand to appoint
new counsel. Spreitzer answered in his reply
brief that the post-conviction court’s findings
of waiver and res judicata were improper because
Spreitzer’s post-conviction claims were based on
evidence not within that court’s record. The
Illinois Supreme Court, in reviewing Spreitzer’s
ineffective assistance of counsel claim, first
noted that "[t]he record in this case shows that
[Spreitzer’s] post-conviction counsel consulted
with him, examined the record and conducted an
investigation," meeting all the Illinois
requirements for effective post-conviction
counsel. Spreitzer II, 572 N.E.2d at 936. The
court also noted that post-conviction counsel
argued all the counts raised in Spreitzer’s pro
se complaint, but because "[t]he reasons for the
trial court’s dismissal . . . were res judicata
and waiver . . . [a]n additional investigation,
or addition of supporting documents to the
record, would have been irrelevant to the issue
of whether or not the allegations in the petition
were res judicata or waived." Id. For this
reason, the Illinois Supreme Court found that
Spreitzer had failed to prove that his post-
conviction counsel’s actions had prejudiced him.
See id.
Contrary to Spreitzer’s contentions, the
Illinois Supreme Court was not presented with the
issue of sentencing counsel’s effectiveness
during the course of this interchange. The issue
briefed to the court by the parties was the
effectiveness of post-conviction counsel, not
sentencing counsel. The court held that post-
conviction counsel was effective and,
alternatively, that Spreitzer had not shown
prejudice caused by his representation. In its
finding that no prejudice had been shown, the
Supreme Court noted that the hearing court based
its dismissal on waiver and res judicata.
However, the Supreme Court did not review the
hearing court’s decision because the substance of

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its decision, whether Spreitzer should have
raised claims of ineffective sentencing counsel
sooner, was irrelevant to the question of
prejudice caused by post-conviction counsel.
Moreover, the Illinois Supreme Court did not
reach the question whether the post-conviction
court correctly applied the waiver doctrine.
The only presentment of the question of
sentencing counsel’s effectiveness came in
Spreitzer’s reply brief as a part of his argument
that the post-conviction court erred in applying
the waiver doctrine, which in turn was argued in
the context of Spreitzer’s contention that post-
conviction counsel was ineffective. Illinois
Supreme Court Rule 341(e)(7) deems arguments
presented for the first time in a reply brief
waived, see People v. Brown, 660 N.E.2d 964, 970
(Ill. 1995). Although Supreme Court Rule 341(g)
allows appellants to respond in their reply brief
to any question raised in appellee’s answer, see
Oliveira v. Amoco Oil Co., 726 N.E.2d 51, 56
(Ill. 2000), the state never raised the question
of the merits of the post-conviction court’s
decision in its briefing. The state merely noted
that the court’s grounds for ruling did not allow
a finding of prejudice. For this reason, the
Illinois Supreme Court was never directly
presented with the question whether Spreitzer’s
original sentencing counsel provided effective
representation, or even whether the post-
conviction court erred in dismissing these claims
on res judicata or waiver grounds. As such, the
tortured process that Spreitzer suggests the
Illinois Supreme Court should have undergone to
reach these claims does not constitute a fair
presentment of them to the Illinois Supreme
Court.
3. Futility
Spreitzer also argues that he was not required
to claim ineffective assistance of sentencing
counsel before the Illinois Supreme Court because
any such action would have been futile. Spreitzer
claims that because his post-conviction counsel
failed to append affidavits to his post-
conviction petition, the Illinois Supreme Court
would have dismissed this claim as insufficiently
substantiated. For this reason, he argues that he
had no likelihood of success on his claim and
need not have brought it to the Illinois Supreme
Court.
Illinois courts routinely dismiss claims for
post-conviction relief that lack support in the
record or supporting affidavits for the
proposition that the petitioner’s constitutional
rights have been violated. See People v.
Erickson, 700 N.E.2d 1027, 1034 (Ill. 1998); see

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also People v. Turner, 719 N.E.2d 725, 730 (Ill.
1999). The Supreme Court has provided an
exception to the exhaustion doctrine in those
instances where "the corrective process is so
clearly deficient as to render futile any claim
to obtain relief." Duckworth v. Serrano, 454 U.S.
1, 3 (1981). However, we have interpreted the
phrase "corrective process" to refer only to the
post-conviction appellate procedure provided by
a state. See, e.g., United States ex rel. Johnson
v. McGinnis, 734 F.2d 1193, 1197 (7th Cir. 1984)
(analyzing the Illinois state mandamus procedure
to determine whether its deficiencies allow
futility claim). Therefore, "the pertinent
question is not whether the state court would be
inclined to rule in the petitioner’s favor, but
whether there is any available state procedure
for determining the merits of petitioner’s
claim." White v. Peters, 990 F.2d 338, 342 (7th
Cir. 1993).
Because Spreitzer’s post-conviction counsel
failed to append additional affidavits to the
record, the Illinois Supreme Court probably would
have dismissed Spreitzer’s claim as
unsubstantiated without reaching the merits.
Nonetheless, Spreitzer does not contest that
Illinois maintained a process to present such
claims. As such, he presents no colorable
argument that it would have been futile to
present this argument before the Illinois Supreme
Court. We do not believe that such action would
have been futile in the sense required by
Duckworth, and we reject Spreitzer’s contention
that he need not have presented these claims on
the basis of this purported futility.
4. Exceptions to Procedural Default
Although we have found Spreitzer to have
defaulted his habeas claims, we may excuse his
default and review his claims under two
circumstances. Either Spreitzer must show cause
and prejudice for his failure to exhaust his
state claims, or he must show that a failure to
review these claims results in a fundamental
miscarriage of justice. See Howard, 185 F.3d at
726; Steward v. Gilmore, 80 F.3d 1205, 1211 (7th
Cir. 1996); see generally Barksdale v. Lane, 957
F.2d 379, 385 (7th Cir. 1992) (requiring "some
external objective factor, such as interference
by officials or unavailability of the factual or
legal basis for a claim" to show cause).
Spreitzer has failed to present any evidence of
any external cause that prevented him from
raising his ineffective assistance claims before
the Illinois Supreme Court, nor has he made an
attempt to show actual innocence, as opposed to
legal innocence, as required to support the
finding of a fundamental miscarriage of justice.

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See Sawyer v. Whitley, 505 U.S. 333, 339 (1992).
Therefore, we find no reason to excuse Spreitzer
from the requirement that he first exhaust his
available state remedies. We are barred from
reviewing the claims in Spreitzer’s habeas corpus
petition, and we will affirm the district court’s
dismissal of the petition.
B. Denial of Evidentiary Hearings
Finally, Spreitzer contends that the district
court erred in denying him the opportunity to
conduct an evidentiary hearing on his ineffective
assistance of sentencing counsel claims. The
district court did not express the reasons for
his denial, but in reaching the merits of
Spreitzer’s claim, the court noted that Spreitzer
would be unable to demonstrate prejudice caused
by the truth of either claim in the face of
overwhelming evidence against him. Spreitzer
appeals these denials, claiming that under
Strickland v. Washington, 466 U.S. 668, 689-90
(1984), he was entitled to a determination of
both ineffective assistance and prejudice before
denying his motion for an evidentiary hearing.
"[A] federal evidentiary hearing is required if
a habeas petitioner alleges facts which, if
proved, would entitle him to relief and the state
courts--for reasons beyond the control of the
petitioner--never considered the claim in a full
and fair hearing." Porter, 112 F.3d at 1317; see
also Townsend v. Sain, 372 U.S. 293, 312-13
(1963). Under pre-AEDPA law,/1 if a petitioner
has failed to adequately develop material facts
in previous state court proceedings, we again
apply the "cause and prejudice" standard to
determine whether an evidentiary hearing is
warranted. See Resnover v. Pearson, 965 F.2d
1453, 1456-57 (7th Cir. 1992); see also Keeney v.
Tamayo-Reyes, 504 U.S. 1, 8 (1992). To receive a
federal evidentiary hearing, a petitioner must
show both good cause for failing to submit the
required affidavits in state court and that he
has suffered actual prejudice. See Wright v.
Gramley, 125 F.3d 1038, 1043-44 (7th Cir. 1997);
Lemons v. O’Sullivan, 54 F.3d 357, 360 (7th Cir.
1995).
The district court dismissed Spreitzer’s habeas
petition for an evidentiary hearing without
comment on Spreitzer’s request for an evidentiary
hearing. However, in its memorandum order of
dismissal, the court reached the merits of
Spreitzer’s claims. The court found that
Spreitzer had not shown actual prejudice caused
by the claimed errors in the face of the
overwhelming evidence presented to the jury in
favor of Spreitzer’s eligibility for execution.
Spreitzer claims that this finding of no
prejudice is mere speculation without the benefit

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of an evidentiary hearing to determine whether
prejudice existed. However, this argument
reverses the burden of proof required by a
petitioner to receive an evidentiary hearing. To
receive a hearing, Spreitzer was required to
append affidavits alleging evidence of actual
prejudice to the district court. Spreitzer did
not append affidavits alleging sufficient
evidence of prejudice, so the court found that
Spreitzer failed to make his requisite showing.
Spreitzer presented evidence which suggests that
his sentencing counsel did not pursue adequately
evidence of organic brain defects and Spreitzer’s
good conduct while incarcerated. He claims that
this evidence should have been presented to the
jury at his sentencing. However, at Spreitzer’s
sentencing, counsel presented Dr. Mohr to provide
evidence of Spreitzer’s psychological state, and
Spreitzer testified on his own behalf about his
conduct in prison. In the face of the
overwhelming evidence demonstrating the grisly
nature of his crimes, the jury favored the
evidence provided by the state over that provided
by Spreitzer. Spreitzer has presented no novel
evidence that would tend to upset this balance,
so we agree with the district court that
Spreitzer has not demonstrated that the state
court’s failure to hold an evidentiary hearing
caused him actual prejudice. We affirm the
district court’s denial of Spreitzer’s request
for an evidentiary hearing.
III. Conclusion
Because Spreitzer failed to present his post-
conviction claims properly to the Illinois
Supreme Court, we are barred from reviewing these
claims. Because he has defaulted all his claims
and failed to show cause for this default or
prejudice arising from it, we Affirm the decisions
of the district court and Dismiss Spreitzer’s
petition.
/1 AEDPA sec. 104 codified the "cause and prejudice"
test applied in Keeney v. Tamayo-Reyes, 504 U.S.
1, 8 (1992), adding 28 U.S.C. sec. 2254(e)(2),
which dramatically restricts the ability of
district courts to hold an evidentiary hearing.
See Williams v. Taylor, ___ U.S. ___, 120 S.Ct.
1479, 1488-89 (2000). However, in Spreitzer v.
Peters, 114 F.3d at 1456, we applied pre-AEDPA
law to determine whether other of Spreitzer’s
claims merited an evidentiary hearing, and we
continue to believe it unnecessary to apply sec.
2254(e)(2) retroactively to Spreitzer’s petition.

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