                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-4201
ULECE MONTGOMERY,
                                            Petitioner-Appellant,
                                v.

ALAN M. UCHTMAN, Warden,
                                            Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
             No. 01 C 7486—Amy J. St. Eve, Judge.
                         ____________
    ARGUED JUNE 1, 2005—DECIDED OCTOBER 20, 2005
                    ____________


 Before BAUER, RIPPLE, and KANNE, Circuit Judges.
  BAUER, Circuit Judge. This habeas corpus appeal arises
from Ulece Montgomery’s conviction in June 1983 for the
murders of two elderly women and his subsequent death
sentence. Montgomery argues that the trial and sentenc-
ing violated due process and that he received ineffective
assistance of counsel. He also contends that his waivers
of his right to a jury at trial and sentencing were not
knowing and voluntary. The district court rejected his
claims and denied his petition; so do we.
2                                              No. 03-4201

                     I. Background
A. The Double Homicide, Trial, and Sentencing
  On April 25, 1981, Montgomery beat and strangled to
death 72-year-old Pearl Briggs and 68-year-old Betty Tyson.
After beating each woman unconscious and possibly after
they were dead, Montgomery raped them. After his appre-
hension, he gave a detailed confession of these crimes.
   Miss Briggs owned two buildings in Robbins, Illinois. She
lived in one with her sister, Mrs. Tyson, and rented the
adjacent building to Montgomery’s girlfriend. At the time of
the attacks, Montgomery had been living with his girlfriend
in the house for approximately two months. On the evening
of April 25, 1981, Montgomery walked to Miss Briggs’ house
to pick up a couch. Miss Briggs took him to the basement of
her building, where the couch was located. There, Montgom-
ery knocked Miss Briggs unconscious, removed her clothes,
and raped her. She died of strangulation. Montgomery’s
fingerprint was found on the lens of her glasses, his jacket
was spattered with blood that matched her blood type but
not his, and a hair consistent with his hair was found under
her fingernail.
  Montgomery then walked upstairs to Miss Briggs’
apartment. When Mrs. Tyson opened the door, he pushed
her down, removed her stockings, and wrapped them
around her neck. When she was no longer conscious, he
raped her. Mrs. Tyson died of strangulation. Montgomery’s
palm print was found on a camera case on a couch near
Mrs. Tyson’s head, and a hair consistent with her hair
was found on his T-shirt.
  A police investigator who came to the house that even-
ing noticed Montgomery standing outside, acting suspi-
ciously. He saw that Montgomery’s hands were scraped and
that he had blood on his pants. The investigator approached
Montgomery, who agreed to go with the investigator to the
police station. At the station, Montgomery gave hair
No. 03-4201                                                 3

samples, fingerprints, and palm prints; he also allowed the
police to test his clothing.
  Montgomery was subsequently charged with the murders
of Miss Briggs and Mrs. Tyson. He originally chose to be
tried by a jury, but, on March 15, 1983, Montgomery
overheard a prospective juror say that he could convict
Montgomery just by looking at him. During that day,
defense attorney John McNamara contacted Judge Samuels
to schedule a conference. When the prosecution refused to
participate, Judge Samuels ruled that there could be no
meeting without the participation of both parties. That
evening, Montgomery attempted to commit suicide in his
cell. As a result, Judge Samuels declared a mistrial.
  Three months later, Montgomery was declared fit to stand
trial. On June 10, 1983, three days before trial, defense
attorneys McNamara and Michael Morrissey met with
Judge Samuels in his chambers. In addition, two assistant
state’s attorneys were present, neither of whom were
assigned to Montgomery’s case. McNamara and Morrissey
told the judge that Montgomery was going to elect a
stipulated bench trial instead of a jury trial and that he was
going to waive a jury for sentencing. As they were talking,
Assistant State’s Attorney Scott Arthur, the lead prosecutor
in the case, entered chambers. Arthur became furious and
accused McNamara, Morrissey, and Judge Samuels of
trying to “back door” him. R. at 855. Judge Samuels assured
Arthur that nothing improper had occurred and invited him
to join the meeting. Arthur refused and ordered the other
two prosecutors to leave with him, which they did.
McNamara and Morrissey followed them out.
  On June 13, 1983, Montgomery waived his right to a jury
trial and proceeded to a stipulated bench trial. Judge
Samuels found him guilty of the two murders. Montgomery
also chose to waive a jury for purposes of a death penalty
hearing. In the first stage of the hearing, the parties
stipulated to the introduction of the evidence presented
4                                               No. 03-4201

at trial. Judge Samuels then made findings that rendered
Montgomery eligible for the death penalty.
  During the second stage of the sentencing hearing, the
parties presented evidence in aggravation and mitigation.
The State introduced evidence that included the following.
In 1966, when Montgomery was 9 years old, he stuck a
Coke bottle onto the penis of his 3-year-old brother, Darryl,
which required medical personnel to remove. In 1969, when
Montgomery was 12 years old, he attempted to rape his 11-
year-old sister, Rene. In 1970, when he was 13 years old, he
raped his 5-year-old half-brother, Eugene. In 1976, when
Montgomery was 19 years old, he on two occasions raped
his 11-year-old half-sister, Jean, who became pregnant and
had an abortion. Montgomery was convicted of contributing
to the sexual delinquency of a minor. Montgomery also had
two other prior convictions, both for possession of a stolen
motor vehicle.
  In mitigation, Montgomery’s relatives testified that he
was very drunk immediately after the murders. They also
testified about the deprived conditions in their home during
his childhood and his parents’ alcoholism. Dr. Steven Porter
testified that Montgomery was acting under extreme
emotional disturbance at the time of the murders because
of the amount of alcohol he had consumed. Dr. Albert Stipes
did not agree that Montgomery had acted under extreme
emotional disturbance, but he diagnosed Montgomery as
having “alcohol dependency and antisocial personality
disorder with stimulant abuse.” People v. Montgomery, 736
N.E.2d 1025, 1031 (2000).
  Judge Samuels found that Montgomery was not acting
under extreme emotional disturbance when he committed
the murders. He also noted that Montgomery’s intoxication
was voluntary and that he had a history of preying on the
weak and elderly. As a result, Judge Samuels determined
that there were no mitigating factors sufficient to pre-
No. 03-4201                                                 5

clude imposition of a death sentence.
  On April 4, 1986, the Illinois Supreme Court affirmed
Montgomery’s convictions and sentences. Certiorari was
denied on February 23, 1987.


B. The Post-Conviction Proceedings
  On December 14, 1987, Montgomery filed a post-convic-
tion petition in the circuit court of Cook County. He
claimed, for the first time, that Judge Samuels was biased
because defense counsel had ex parte meetings with him in
which he allegedly promised that he would not impose
the death penalty if Montgomery waived his right to a
jury for both trial and sentencing. The circuit court denied
the petition. Montgomery appealed to the Illinois Su-
preme Court, arguing that he had not had a full and fair
opportunity to cross-examine Judge Samuels. The court
remanded with directions to reopen the hearing to allow
Montgomery to fully cross-examine all of the witnesses.
  Pursuant to Montgomery’s request for a change of venue,
a new hearing on Montgomery’s claims of judicial miscon-
duct and ineffective assistance of counsel was conducted
in October and November 1996 by Judge Michael Weber
of the Fourth Judicial District in Jasper County, Illinois. At
this hearing, Judge Samuels testified that he had not made
an ex parte offer to sentence Montgomery to natural life. He
further stated that if he had ever met with defense attor-
neys McNamara or Morrissey ex parte, the only topic they
would have discussed was scheduling.
  Defense attorneys McNamara and Morrissey testified that
they had met with Judge Samuels on three occasions.
McNamara testified as to the first of these meetings.
In April 1983, he met with Judge Samuels ex parte to
discuss scheduling. After McNamara described the evidence
he expected the State to introduce, Judge Samuels sug-
6                                                No. 03-4201

gested pleading Montgomery guilty. McNamara expressed
concern about making a blind plea in a capital case, to
which Judge Samuels allegedly replied: “As far as that’s
concerned, why don’t you look at my record.” R. at 838.
  Defense counsel Morrissey testified as to the second
meeting. In April 1983, he met with Judge Samuels ex parte
to discuss scheduling. Morrissey told the judge that Mont-
gomery would be electing a jury trial, and Judge Samuels
replied that Montgomery should plead guilty and that he
would impose a life sentence, again referring to his track
record. Both defense counsel testified as to the June 10,
1983 meeting with Judge Samuels, which was also attended
by two assistant state’s attorneys and ended when Assistant
State’s Attorney Arthur arrived.
  After weighing the evidence, Judge Weber determined
that the claimed ex parte communication from Judge
Samuels promising a life sentence in exchange for a jury
waiver “simply did not exist.” Montgomery, 736 N.E.2d
at 1037. In so ruling, he found that Judge Samuels was
credible and that defense attorneys McNamara and
Morrissey were not. He also found that it would be “total-
ly. . . out of character” for Judge Samuels to hold an ex parte
meeting after he had previously rejected a plea conference
because the State would not participate. Id. Thus, Judge
Weber denied the post-conviction petition.
  On June 15, 2000, the Illinois Supreme Court affirmed
Judge Weber’s ruling, deferring to his credibility determina-
tions. In so ruling, the court opined that defense attorneys
McNamara and Morrissey “might have been hoping to hear
an indication from the trial judge about what sentence he
would impose in this case, and counsel could have misrepre-
sented the judge’s comments.” Montgomery, 736 N.E.2d at
1038. On June 4, 2001, the United States Supreme Court
denied Montgomery’s petition for certiorari.
    On September 27, 2001, Montgomery filed a petition for
No. 03-4201                                                  7

a writ of habeas corpus. On January 10, 2003, former
Governor Ryan commuted Montgomery’s sentence from
death to natural life without the possibility for parole. On
September 8, 2003, the district court denied habeas re-
lief; she also denied a certificate of appealability. On August
16, 2004, we granted Montgomery’s request for a certificate
of appealability as to the constitutional challenges con-
nected to the ex parte discussions.


                      II. Discussion
  Montgomery argues that the Illinois Supreme Court’s
decisions that his trial and sentencing comported with due
process and that he received effective assistance of coun-
sel were contrary to or based on an unreasonable applica-
tion of Supreme Court precedent. He also claims that
the court’s conclusion that he knowingly and voluntarily
waived his right to a trial and sentencing by jury was
premised on an unreasonable determination of the facts
in light of the evidence presented at his 1996 post-con-
viction hearing. Montgomery maintains that the district
court erred in concluding otherwise and that we should
reverse the court’s denial of his petition for habeas corpus.
  Because Montgomery filed his petition after the effective
date of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), the AEDPA governs our review. Lindh
v. Murphy, 521 U.S. 320, 322 (1997); Martin v. Evans, 384
F.3d 848, 851 (7th Cir. 2004). The AEDPA provides that
habeas relief may not be granted as to any claim adjudi-
cated on its merits in state court unless the state court’s
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States” or “was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d). We review the district court’s decision
8                                                No. 03-4201

denying Montgomery’s habeas relief de novo. Harris v.
Cotton, 365 F.3d 552, 555 (7th Cir. 2004).


A. Due Process
  We begin with Montgomery’s claim that Judge Samuels’
failure to recuse himself after Assistant State’s Attorney
Arthur discovered him taking part in the June 10, 1983
meeting deprived Montgomery of due process. Montgomery
maintains that the Illinois Supreme Court’s failure to
recognize Tumey v. Ohio, 273 U.S. 510 (1927), in its rejec-
tion of his claim resulted in an unreasonable application of
clearly established federal law. 28 U.S.C. § 2254(d)(1). A
state court’s application of clearly established federal law is
unreasonable only if it is objectively unreasonable, which
requires that it lie “well outside the boundaries of permis-
sive differences of opinion.” Hardaway v. Young, 302 F.3d
757, 762 (7th Cir. 2002).
   The Due Process Clause guarantees litigants an impartial
judge. See In re Murchison, 349 U.S. 133, 136 (1955)
(recognizing that “no man is permitted to try cases where he
has an interest in the outcome”); see also Franklin v.
McCaughtry, 398 F.3d 955, 959 (2005). The general pre-
sumption is that judges are honest and impartial. Withrow
v. Larkin, 421 U.S. 35, 47 (1975). However, this presump-
tion can be rebutted, as Tumey and the cases that followed
it illustrate.
  Tumey involved a judge whose income was derived solely
from the fines he recovered from convictions. The Supreme
Court held that his “direct, personal, substantial, pecuniary
interest” in convicting defendants was sufficient to rebut
the presumption of his impartiality. Tumey, 273 U.S. at
523. After Tumey, the Court recognized other situations
where bias could be presumed from a judge’s pecuniary
No. 03-4201                                                    9

interest in a case.1 In Ward v. Village of Monroeville, 409
U.S. 57 (1972), the Court presumed bias where the judge
was also the mayor and a substantial portion of the village’s
revenues were generated by fines from his court. 409 U.S.
at 60. And in Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813
(1986), the Court held that a judge’s bias could be presumed
where his decision had the “immediate effect of enhancing
the legal status and the settlement value” of a separate
lawsuit in which he had a personal stake. 475 U.S. at 824.
Aetna Life Ins. involved an insurance company’s bad-faith
refusal to pay a claim. The Alabama Supreme Court had
found       against       the     defendant          insur-
ance company—recognizing for the first time a claim for
tortious injury in such circumstances—and ordered puni-
tive damages in an amount 35 times greater than any
award ever affirmed by the court. Id. at 823. However, the
justice who cast the court’s deciding vote and authored its
decision was the plaintiff in a similar claim which was
settled for $30,000 shortly thereafter. Id. at 824. The
Court stated in its decision that when the justice pro-
nounced his judgment, it was as though “he acted as a judge
in his own case.” Id. (quoting Murchison, 349 U.S. at 136)
(internal quotes omitted).
  Montgomery argues that the appearance of impropri-
ety created when Assistant State’s Attorney Arthur became
angry upon discovering Judge Samuels at the June 10, 1983
meeting put the judge’s job at risk. Consequently, Judge
Samuels had a “personal, direct, substantial, pecuniary”


1
  The Supreme Court has also found that a judge’s non-pecuniary
interests can lead to bias. In re Murchison involved a judge who
held two defendants in contempt and later presided over their
contempt proceeding. Because the holding of Murchison—that a
judge cannot serve as both accuser and trier of fact—is not
relevant to Montgomery’s claim, there is no need to discuss it in
detail. 349 U.S. at 137.
10                                               No. 03-4201

interest in imposing the death penalty, as this was the only
surefire way to allay Arthur’s suspicions that Judge
Samuels had not colluded with the defense. Montgomery
claims that Judge Samuels’ failure to recuse himself
violated due process and should result in a new trial and
sentencing, despite Montgomery’s thorough admission of
guilt. The Illinois Supreme Court rejected Montgomery’s
claim, citing state authority to the contrary. Montgomery,
736 N.E.2d at 1038-39. The district court agreed, concluding
that Montgomery’s theory of bias was too speculative to
rebut the presumption that Judge Samuels was impartial.
U.S. ex rel. Montgomery v. McAdory, No. 01 C 7486, 2003
WL 110794, at *7 (N.D. Ill. Sept. 9, 2003). Montgomery
argues that the Illinois Supreme Court’s decision was
objectively unreasonable because it failed to address the
Tumey line of cases.
   Like the district court, we find Judge Samuels’ alleged
interest in convicting Montgomery and sentencing him to
death to be too speculative and insubstantial to overcome
the presumption of his impartiality. In Tumey and Ward, it
was certain that only convictions would generate revenue;
thus, the judges’ bias was clear. Similarly, in Aetna Life Ins.
it was certain that the Alabama Supreme Court justice’s
decision and unprecedented award of damages made
success in his own contemporaneous lawsuit far more likely.
By contrast, Judge Samuels’ interest in Montgomery’s case
is attenuated and based on several, dubious assumptions.
We would have to assume from Assistant State’s Attorney
Arthur’s sudden outburst on June 10, 1983, that he actually
intended to reveal the meeting to the public. That, however,
is nowhere near certain; Judge Samuels himself testified
that this was not the first time he had seen Arthur lose
his temper. R. at 375. We would also have to assume
that public disclosure of the meeting would impact Judge
Samuels’ career. But that, too, is highly speculative.
Because both prosecutors and defense attorneys were
No. 03-4201                                               11

present throughout the meeting, there was little or no
appearance of impropriety attached to it, except in Arthur’s
mind. Further, the Illinois Supreme Court determined that
discussion at the meeting was limited to scheduling, and
Montgomery has not offered clear and convincing evidence
to the contrary. 28 U.S.C. § 2254(e)(1). Ex parte scheduling
meetings do not necessarily offend due process rights.
Drobny v. Comm’r of Internal Revenue, 113 F.3d 670, 680
(7th Cir. 1997).
  Montgomery’s theory of bias more closely resembles Bracy
v. Gramley, which the district court cited in its order. In
Bracy, the petitioner was convicted by a judge who was
later convicted of accepting bribes from defendants. The
petitioner—who had not paid a bribe—claimed that the
judge convicted him in order to deflect suspicion that he
was soft on defendants, which might draw attention to his
corrupt activities. The Supreme Court characterized this as
a theory of compensatory, or camouflaging, bias. Bracy, 520
U.S. at 905. The Court ruled that a petitioner who proceeds
with such a “speculative” theory must produce evidence that
the judge “was actually biased in petitioner’s own case.” Id.
at 909 (emphasis omitted). Like the petitioner in Bracy,
Montgomery asserts that the judge sentenced him harshly
to divert suspicion of impropriety. The cases are somewhat
different in that, here, the claimed impropriety arose
directly from Montgomery’s case, whereas the corruption in
Bracy involved cases other than the petitioner’s. This
distinction is not critical; Montgomery has failed to rebut
the general presumption that Judge Samuels was impartial.
  Because we are unpersuaded that Judge Samuels had a
“direct, personal, substantial, pecuniary interest” in con-
victing and sentencing Montgomery to death, the decision
of the Illinois Supreme Court did not constitute an unrea-
sonable application of the rule of law set forth in the Tumey
line of cases.
12                                              No. 03-4201

B. Jury Waiver
  Next, Montgomery contends that his jury waivers were
involuntary because he was misled by Judge Samuels about
the sentence he would receive. His argument presupposes
that Judge Samuels promised to sentence him to life
imprisonment and later reneged. However, the Illinois
Supreme Court concluded that any conversations with
Judge Samuels were limited to scheduling; thus no promise
was made. In so concluding, the court deferred to credibility
determinations made by Judge Weber of the circuit court.
Montgomery argues that the Illinois Supreme Court’s
decision that his waivers were knowing and voluntary was
in error because it was based on the unreasonable factual
determination that Judge Samuels did not promise his
attorneys a life sentence. 28 U.S.C. § 2254(d)(2). To prevail
on this claim, Montgomery must offer clear and convincing
evidence that the Illinois Supreme Court’s factual determi-
nation was wrong. 28 U.S.C. § 2254(e)(1).
   Montgomery argues that it was unreasonable for the
Illinois Supreme Court to credit Judge Samuels’ denial that
he made a promise of a life sentence over defense attorneys
McNamara and Morrissey’s testimony. We disagree.
McNamara and Morrissey’s credibility was compromised
from the start because they waited four-and-a-half years
before claiming that Judge Samuels had promised them a
life sentence. Their credibility was further eroded by the
fact that it was three more years before they produced
memoranda—unsigned and undated—memorializing the
alleged promise. In addition, McNamara and Morrissey
gave inconsistent testimony about who was the first to tell
the other about Judge Samuels’ alleged promise, which is
odd given how momentous that commitment would have
been. R. at 847, 954. Montgomery’s argument that Judge
Samuels’ testimony was self-interested and therefore
unreliable does not constitute clear and convincing evidence
that the Illinois Supreme Court’s factual determination was
No. 03-4201                                               13

wrong.
  Montgomery also claims that the Illinois Supreme Court’s
factual determination was unreasonable because
McNamara and Morrissey’s account was corroborated
by several witnesses. The Illinois Supreme Court, how-
ever, concluded that many of these individuals lacked
credibility. For example, McNamara testified that Moses
Cole, Judge Samuels’ clerk, told him that the judge would
not impose the death penalty, but Cole died before the post-
conviction hearing and records indicated that he was absent
from work on the day the alleged conversation was sup-
posed to have occurred. Montgomery, 736 N.E.2d at 1036; R.
at 840. McNamara also stated that Shirley Thompson,
Judge Samuels’ court reporter, told him that the judge
would not sentence anyone to death, but at the hearing she
denied making that statement. Montgomery, 736 N.E.2d at
1036. Paul Foxgrover, a former assistant public defender,
described in an affidavit conversations he had with
McNamara concerning the alleged promise. However,
Foxgrover was unable to testify in person because he was
serving a prison sentence for felony theft. Id. at 1034.
Morrissey offered Andrea Lyon, another former assistant
public defender, to testify that he told her about Judge
Samuels’ alleged promise, but Judge Weber found her
recollection of that conversation to be “somewhat vague”
and thus lacking credibility. Id. at 1037. These findings by
the court were reasonable, and Montgomery has failed to
rebut their presumptive correctness with clear and convinc-
ing evidence to the contrary.
  Still, Montgomery insists that the only reasonable
explanation for his sudden decision to adopt a new trial
strategy after consistently insisting on a jury trial is that
Judge Samuels promised to sentence him to life imprison-
ment. But that is not the only reasonable explanation for
his change of mind. The Illinois Supreme Court observed
that Montgomery’s waiver coincided with his recovery
14                                               No. 03-4201

from attempted suicide after hearing a prospective juror
state that he could convict Montgomery just by looking at
him. Montgomery, 736 N.E.2d at 1029. As the court noted,
this offers another reasonable explanation for Montgomery’s
abrupt decision. And there remains, of course, Montgom-
ery’s detailed confession of the crimes.
   In sum, Montgomery has not demonstrated that the
Illinois Supreme Court’s finding that Judge Samuels
never promised him a life sentence was unreasonable. As a
result, he is unable to show that the court erred in deter-
mining that his waiver was knowing and voluntary.


C. Ineffective Assistance of Counsel
   Finally, Montgomery argues that he was denied effective
assistance of counsel when his attorneys urged him to waive
his right to a jury trial and stipulate to the State’s evidence
in reliance upon a non-existent promise by Judge Samuels
not to impose the death penalty. He contends that the
Illinois Supreme Court rejected his claim by applying a rule
of law contrary to Strickland v. Washington, 466 U.S. 668
(1984), which is the clearly established federal law on this
issue. A decision is contrary to clearly established federal
law “if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law”
or “if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to the [Court’s].” Williams
v. Taylor, 529 U.S. 362, 405 (2000).
   To prevail on an ineffective assistance of counsel claim,
the petitioner must show that his attorneys’ performance
was deficient and that the deficient performance prejudiced
his defense. Strickland, 466 U.S. at 687. To estab-
lish deficient performance under the first prong of the
Strickland test, a petitioner must demonstrate that coun-
sel’s representation “fell below an objective standard of
No. 03-4201                                               15

reasonableness.” 466 U.S. at 687-88. We assess the reason-
ableness of the challenged conduct “on the facts of the
particular case, viewed as of the time of counsel’s conduct.”
Id. at 690. There is a strong presumption that counsel
“rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judg-
ment.” Id.
  The Illinois Supreme Court found at least two legitimate
reasons other than Judge Samuels’ alleged promise that
justified the defense attorneys’ recommendation that
Montgomery waive his right to a jury and stipulate to the
State’s evidence. The first reason was that the prospective
juror’s comment that he could convict Montgomery just
by looking at him underscored the potential weakness of
trying the case before a jury. Montgomery, 736 N.E.2d at
1038. The second was that defense attorneys McNamara
and Morrissey both believed that Judge Samuels was less
likely to sentence Montgomery to death than a jury. Id.;
R. at 908, 956. We find these explanations persuasive
and would add one more to the list. Defense attorney
McNamara testified that although Montgomery intended to
try his case in front of a jury, Montgomery “did not have a
strong defense,” and McNamara wanted to make certain
that he saved credibility for the mitigation aspect of the
case. R. at 830. The Supreme Court held in Florida v.
Nixon, 125 S.Ct. 551 (2004), that conceding a defendant’s
guilt in order to save credibility for sentencing can be a
reasonable trial strategy where the defendant is accused of
capital murder and faces overwhelming evidence of guilt.
125 S.Ct. at 561-63. Employing that same strategy under
these very similar circumstances—particularly in light of
the highly incriminating admissions Montgomery made to
the police—was also reasonable and did not constitute
deficient performance under Strickland.
  Montgomery contends that the Illinois Supreme Court’s
analysis constituted the type of post hoc justification that
16                                              No. 03-4201

the Court prohibited in Wiggins v. Smith, 539 U.S. 510
(2003). As a result, he argues that the court applied a rule
of law contrary to Strickland. We disagree, because Wiggins
is distinguishable. Wiggins involved defense attorneys who
failed to investigate obviously significant mitigating
evidence. The state court found that counsel had made a
tactical decision to focus on their client’s defense rather
than on his background. The Supreme Court reversed,
holding that the record contained numerous indications that
counsel’s failure to investigate was caused by inattention,
not strategy. Wiggins, 539 U.S. at 526. In so ruling, the
Court noted that the state court’s description of counsel’s
strategic decision was so disconnected from the picture
painted by the facts in the record that it could only be
explained as a post hoc rationalization of counsel’s conduct.
Id. at 526-27. Here, by contrast, the Illinois Supreme
Court’s explanation of the defense attorneys’ rationale for
recommending that Montgomery waive his right to a jury
and stipulate to the State’s evidence was entirely reason-
able and consistent with the record. Wiggins, therefore, is
inapposite, and the Illinois Supreme Court’s statement of
the law under Strickland and application of that rule were
not in error.
  Since Montgomery has failed to satisfy the first prong
of the Strickland test, it is unnecessary to address the
prejudice prong.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
denial of the writ of habeas corpus.
No. 03-4201                                         17

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-20-05
