Torray Stitts v. Bill Wilson ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2255
T ORRAY S TITTS,
Petitioner-Appellant,
v.
B ILL W ILSON, Superintendent,
Indiana State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:10-cv-00765—Larry J. McKinney, Judge.
A RGUED F EBRUARY 14, 2013—D ECIDED A PRIL 15, 2013
Before K ANNE and W ILLIAMS, Circuit Judges, and
Z AGEL, District Judge. Œ
W ILLIAMS, Circuit Judge. Petitioner Torray Stitts, who
was convicted of murder in Indiana state court and
Œ
The Honorable James B. Zagel, District Judge for the United
States District Court for the Northern District of Illinois, sitting
by designation.
2 No. 12-2255
sentenced to sixty years’ imprisonment, appeals from
the district court’s denial of his petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Stitts asserts that
his trial counsel was ineffective under Strickland v. Wash-
ington, 466 U.S. 668 (1984), because before deciding not
to present an alibi defense, he only interviewed one
alibi witness, Stitts’s father, while unreasonably failing
to investigate whether there might be any more. Without
explicitly determining whether trial counsel in fact
limited his alibi investigation to a single interview, the
state court found that such a limited investigation
would be sufficient under Strickland. We agree with
Stitts that this was an unreasonable application of Strick-
land. Given that Stitts’s alibi was that he was at a night-
club, where there could be any number of potential
alibi witnesses, the failure to explore that possibility is
unreasonable. We also find that the state court unrea-
sonably applied Strickland when it found no prejudice,
because the prosecution’s case rested entirely on the
shaky testimony of two witnesses which could have
been neutralized by alibi witness testimony.
As the State suggests, however, that does not resolve
the critical factual question concerning the actual extent
of trial counsel’s alibi investigation. We have no state
court finding to which we may defer, and the record
is otherwise ambiguous. So we must remand to the
district court to resolve it. If the district court finds
that trial counsel performed no further investigation
(and there was no other fact that would reasonably
justify that conduct), then the district court should grant
Stitts’s habeas petition. If the district court finds that
No. 12-2255 3
trial counsel did more, then it must determine de novo
whether that investigation was reasonable under Strick-
land. So we reverse and remand.
I. BACKGROUND
Kevin Hartson was shot and killed on the night of
January 22, 2002, in Kokomo, Indiana, and Petitioner
Torray Stitts was charged with his murder. The State’s
case was based entirely on the testimony of two wit-
nesses, Edward Lawton and Ray Charles.1 According to
Lawton, Stitts and his brother asked Lawton and
Hartson to pick them up that night and take them to a
house to pick up some drugs and/or commit a robbery.
On the way, Charles called Hartson on his cell phone.
While Hartson was on the phone, Stitts told Hartson to
pull over, and then said, “you all motherf—ers gonna
break in my s—t?” and shot Hartson four or five times
in the head, killing him. The car crashed, Lawton fled
the scene, and he dumped his blood-soaked clothes
into a dumpster. Charles testified that he was on the
phone with Hartson that night and heard Stitts’s voice
1
The State contends that its case rested on other evidence too,
including the fact that a torn record log found in the victim’s
car was the other half of a record log found in a notebook
recovered from a black coat in the room where Stitts resided.
But the State does not explain the significance of this record
log, and this evidence notably was not even mentioned in
its closing argument. We believe that the weight that such
evidence adds to the prosecution’s case is negligible.
4 No. 12-2255
in the background. He then heard one shot (and no more),
after which Hartson said “hold on a minute,” and then
Charles kept saying “hello” but received no response.
The reliability of these witnesses’ testimony was
attacked at trial. When the police first asked Lawton
about what happened, he said he had nothing to do
with the shooting and said he did not know who did
it, repeating this story multiple times before finally
stating that Stitts was the shooter and that he saw Stitts
do it. Lawton also had a significant criminal back-
ground and admitted a general willingness to lie to the
police, and the State acknowledged at closing that
Lawton was a “liar” and a “criminal.” As for Charles,
he told the police that he called Hartson repeatedly after
he heard the shot and got no answer, but that appeared
to contradict phone records which did not show that
these calls were made. Charles also said that he received
a reduced charge from the prosecutor in exchange for
his testimony.
Stitts was convicted of murder and sentenced to sixty
years’ imprisonment, and his direct appeal failed. He
then filed a petition for post-conviction relief in state
court, claiming that his trial counsel was unconstitu-
tionally ineffective for failing to adequately investigate
Stitts’s alibi defense for potential presentment at trial.
According to Stitts, at the time of the shooting, he was
at the American Legion Post, whose venue served as a
sort of nightclub that night. At the state post-conviction
hearing, Stitts’s father testified that Stitts was at the
Post along with Stitts’s brother, that trial counsel did
No. 12-2255 5
not interview Stitts’s father until the day before trial,
and that he was not called to testify. He also admitted
to having a criminal record. Stitts then proffered the
testimony of Timothy Harris, a deejay at the Post that
night who also supported Stitts’s alibi but was not inter-
viewed or contacted by trial counsel. Trial counsel
did not testify at the state post-conviction hearing, but
his affidavit was submitted as evidence. It stated,
“I recall considering, but ultimately choosing not to
pursue, an affirmative defense on behalf of the defen-
dant. Defendant had suggested an alibi defense, but I
do not recall there being any quality witnesses to testify
on his behalf as to a believable alibi.” The affidavit did
not specifically mention the extent of his alibi investiga-
tion, nor did it mention Stitts’s father. It added that
he strategically decided to attack the State’s case on
insufficiency of the evidence instead of presenting a
weak alibi.
The state trial court denied the petition. In the findings
of fact section of its written ruling, the court stated:
[Trial counsel] considered, but affirmatively
chose not to pursue an alibi defense. The only
witness available to buttress such a defense was
the defendant’s father, Walter Stitts, who would
not have been a credible witness, and the presenta-
tion of Walter Stitts as a defense witness would
have diminished the chance of [trial counsel] being
able to credibly challenge the sufficiency of the
evidence supporting the state’s case. While a
second potential alibi witness, Timothy D. Harris,
6 No. 12-2255
came forward, voluntarily, shortly before the
hearing on the Petition for Post Conviction
Relief, he was unknown and undiscoverable at
the time of trial. [Trial counsel’s] decision not to
pursue an alibi defense was a sound strategic
decision.
On appeal, the Indiana Court of Appeals affirmed. The
court repeated the language from trial counsel’s af-
fidavit, and then found that trial counsel’s interview of
Stitts’s father was sufficient under Strickland:
In the instant matter, we see no evidence that trial
counsel’s investigation fell below objective stan-
dards of reasonableness. Stitts has failed to
show that trial counsel did not investigate his
claimed alibi defense. The record establishes that
trial counsel spoke with Stitts’s father after learn-
ing that he may have been able to provide Stitts
with an alibi but ultimately determined that he
was not a credible witness. Moreover, Timothy
Harris, who Stitts also claims could have pro-
vided him with an alibi defense, did not come
forward to provide any information about Stitts’s
whereabouts on the night of the shooting until
two or three weeks prior to the post-conviction
hearing. Nothing in the record indicates that
trial counsel knew or even could have discov-
ered that Harris could have provided Stitts with
an alibi defense prior to trial. Trial counsel was
not ineffective in this regard.
No. 12-2255 7
In addition, the state appellate court found lack of preju-
dice, explaining:
Moreover, Stitts has failed to demonstrate that
he was prejudiced by trial counsel’s decision not
to present an alibi defense. The State presented
eyewitness testimony establishing that Stitts
was the shooter. In light of this testimony, we are
unable to say that there is a reasonable prob-
ability undermining Stitts’s conviction that the
outcome of his trial would have been different
had trial counsel presented an alibi defense.
After the Indiana Supreme Court declined to review
and denied transfer, Stitts filed the instant federal
habeas petition pursuant to 28 U.S.C. § 2254, which was
denied by the district court. Stitts appealed, and we
granted a certificate of appealability on the issue of
whether trial counsel was ineffective for failing to investi-
gate and present an alibi defense.
II. ANALYSIS
A district court’s judgment regarding habeas relief is
reviewed de novo. Woolley v. Rednour, 702 F.3d 411, 420
(7th Cir. 2012). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), we may grant
habeas relief only if a state-court decision was (1) “con-
trary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “based on an
unreasonable determination of the facts in the light
8 No. 12-2255
of the evidence presented in the state court proceeding.”
28 U.S.C. § 2254(d). “For purposes of reasonableness
review, ‘a state prisoner must show that the state
court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an
error well understood and comprehended in existing
law beyond any possibility for fairminded disagree-
ment.’ ” Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir.
2012) (quoting Harrington v. Richter, 131 S. Ct. 770, 786-
87 (2011)).
To establish a claim of ineffective assistance of counsel,
a petitioner must show that counsel was deficient in
his performance and that the deficiency prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, the petitioner must demonstrate that his counsel’s
performance fell below an objective standard of reason-
ableness. See id. at 688. Second, he must demonstrate
that he was prejudiced by the deficient performance. Id.
at 694. “When a state collateral review system issues
multiple decisions, we typically consider the last rea-
soned opinion on the claim . . . [u]nless [that] state-court
opinion adopts or incorporates the reasoning of a
prior opinion . . . .” Woolley, 702 F.3d at 422 (quotation
marks and citations omitted).
As a preliminary matter, we clarify that the principal
Strickland issue on appeal is not whether trial counsel’s
decision not to raise an alibi defense at trial—in isolation
from the rest of trial counsel’s conduct—was reason-
able. The state court decision as well as the State’s brief
repeatedly emphasizes that an attorney’s decision not
No. 12-2255 9
to raise an alibi defense is generally considered a
strategic decision entitled to substantial deference, a
fundamental proposition we do not dispute. See Mosley,
689 F.3d at 848 (“To avoid the inevitable temptation to
evaluate a lawyer’s performance through the distorting
lens of hindsight, Strickland establishes a deferential
presumption that strategic judgments made by defense
counsel are reasonable.”). However, the main issue in
this case is whether trial counsel’s investigation of a poten-
tial alibi defense was sufficient under any reasonable
application of Strickland. After all, “strategic choices
made after less than complete investigation are rea-
sonable precisely to the extent that reasonable profes-
sional judgments support the limitations on investiga-
tion.” Strickland, 466 U.S. at 690-91. If trial counsel’s inves-
tigation of a potential alibi defense was unreasonably
limited, then trial counsel’s decision not to present an
alibi defense is too ill-informed to be considered reason-
able. See, e.g., Mosley, 689 F.3d at 848 (“If . . . Mosley’s
lawyer never found out what their testimony would be,
he could not possibly have made a reasonable profes-
sional judgment that their testimony would have been
cumulative or bolstered the State’s case and could not
have chosen not to call [them] as a matter of strategy.”);
United States v. Best, 426 F.3d 937, 946 (7th Cir. 2005)
(“Few decisions not to present testimony can be con-
sidered ‘strategic’ before some investigation has taken
place.”). So we focus on trial counsel’s investigation of
Stitts’s alibi defense, not on trial counsel’s later decision
not to present one.
10 No. 12-2255
A. State Court Unreasonably Applied Strickland
Regarding Trial Counsel’s Alibi Investigation
The state appellate court framed Stitts’s investigation
claim as being about whether trial counsel performed
any alibi investigation at all, not whether trial counsel’s
investigation was adequate (e.g., “Stitts has failed to
show that trial counsel did not investigate his claimed
alibi defense.”).2 Framed in this something-or-nothing
manner, the state court decision concluded that trial
counsel’s interview of Stitts’s father was sufficient. But
nothing in Strickland suggests that the ineffectiveness
issue is about whether or not any investigation was done
in all cases, but whether or not the extent of trial
counsel’s investigation was adequate depending on the
facts in each particular case. As Strickland explained,
“strategic choices made after less than complete inves-
tigation are reasonable precisely to the extent that rea-
sonable professional judgments support the limitations
on investigation. In other words, counsel has a duty
to make reasonable investigations or to make a reasonable
decision that makes particular investigations unneces-
sary.” Strickland, 466 U.S. at 690-91 (emphasis added). For
example, in Wiggins v. Smith, 539 U.S. 510 (2003), trial
2
The State does not argue that Stitts framed his argument solely
in terms of whether trial counsel failed to investigate his
alibi defense at all. Nor could it successfully do so. In Stitts’s
appellate brief presented to the Indiana Court of Appeals,
Stitts argues at length that trial counsel should have investi-
gated more, not that he failed to investigate at all. (R. 278-85.)
Stitts frames the argument similarly in the federal proceedings.
No. 12-2255 11
counsel limited his investigation of the defendant’s trou-
bled childhood (i.e., mitigating evidence) to two docu-
ments, and the Supreme Court found that the state court
unreasonably applied Strickland when it deemed this
limited investigation to be sufficient. See id. at 527. In
doing so, the Court expressly rejected the argument
that trial counsel at least performed some investigation,
explaining that:
In assessing the reasonableness of an attorney’s
investigation, . . . a court must consider not only
the quantum of evidence already known to coun-
sel, but also whether the known evidence
would lead a reasonable attorney to investigate
further. Even assuming [trial counsel] limited the
scope of their investigation for strategic reasons,
Strickland does not establish that a cursory in-
vestigation automatically justifies a tactical deci-
sion with respect to sentencing strategy. Rather,
a reviewing court must consider the reasonable-
ness of the investigation said to support that
strategy.
Id. at 527. Similarly, the Court rejected the dissent’s
protest that trial counsel “did investigate,” explaining
again: “But as we have made clear, the Maryland Court
of Appeals’ conclusion that the scope of counsel’s inves-
tigation into petitioner’s background met the legal stan-
dards set in Strickland represented an objectively unrea-
sonable application of our precedent.” Id. at 528-29 (em-
phases in original); see also Rompilla v. Beard, 545
U.S. 374, 383 (2005) (state court unreasonably applied
12 No. 12-2255
Strickland when it found that counsel’s limited investiga-
tion was adequate). The state court’s conclusion that
trial counsel was not ineffective simply because he per-
formed some investigation therefore flies in the face of
“clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
Our recent decision in Brady v. Pfister, ___ F.3d ___,
No. 11-3365, 2013 WL 1285863 (7th Cir. Apr. 1, 2013)
discussed whether, in situations like this one where the
state court’s reasoning was unreasonable, we should
then consider whether there is a “chain of reasoning
under which the state court’s conclusion can be
reconciled with established federal law as determined
by the Supreme Court,” id. at *6, which is the standard
applied in Harrington, or whether we should look to
lower state court decisions for alternative reasoning
and/or whether we should review the claim de novo.
Id. at *9; see also id. at *6-*8 (discussing application of
Harrington in Johnson v. Williams, 133 S. Ct. 1088 (2013)).
But even under the most deferential standard applied
in Harrington, we find that there are no “arguments or
theories” that a “fairminded jurist[]” would believe are
consistent with Supreme Court precedent that “could
have supported[] the state court’s decision.” Harrington,
131 S. Ct. at 786. When a defendant’s alibi is that he was
at a nightclub at the time of the shooting, where there
are presumably many people, we cannot fathom a
reason consistent with Supreme Court precedent that
would justify a trial counsel’s decision to interview only
a single alibi witness without exploring whether there
might be others at the venue who could provide credible
No. 12-2255 13
alibi testimony. There is simply no evidence in the
record to suggest that exploring the possibility of other
alibi witnesses “would have been fruitless” under these
circumstances. Wiggins, 539 U.S. at 525.3 See, e.g., Rompilla,
545 U.S. at 383 (failure to investigate prior conviction
file was inexcusable when trial counsel knew that the
defendant’s felony history was central to the case, and
where “the prior conviction file was a public document,
readily available for the asking”); Wiggins, 539 U.S. at
525 (“The scope of their investigation was also unrea-
sonable in light of what counsel actually discovered in
the DSS records.”); Raygoza v. Hulick, 474 F.3d 958, 963
(7th Cir. 2007) (state court application of Strickland was
unreasonable, noting that “[h]ad [trial counsel] gleaned
the information from [defendant’s mother] about the
evening party that was easily available for the asking,
he would have learned that this was not a case where
only the mother was willing to vouch for a defendant’s
alibi. To the contrary, witnesses both related and unre-
lated to Raygoza could have been called.”); Washington
v. Smith, 219 F.3d 620, 630-34 (7th Cir. 2000) (state court
application of Strickland was unreasonable, where trial
3
And in that respect, the state court’s finding that “[n]othing
in the record indicates that trial counsel knew or even could
have discovered that Harris could have provided Stitts with
an alibi defense prior to trial” was also an unreasonable deter-
mination of the facts in light of the record, because the mere
fact that Stitts claimed to be at the nightclub meant that trial
counsel could have discovered Harris, or potentially any
number of alibi witnesses, prior to trial.
14 No. 12-2255
counsel did not “attempt to ascertain what [other alibi
witnesses] might contribute to his case,” failed “to
attempt to contact any other witness besides Ms. Rich-
ardson,” and “would have known” to produce another
alibi witness if he had actually read the available detec-
tive’s report); see also Marshall v. Rodgers, ___ S. Ct. ___,
No. 12-382, 2013 WL 1285304, at *4 (U.S. Apr. 1, 2013)
(per curiam) (“an appellate panel may . . . look to
circuit precedent to ascertain whether it has already
held that the particular point in issue is clearly estab-
lished by Supreme Court precedent”).
For instance, if Stitts’s father claimed that Stitts was
having a one-on-one dinner with him at the time of the
shooting, and trial counsel concluded that the father
would make a poor witness, then it could be reasonable
to end the alibi investigation at that point. Or if trial
counsel made some significant effort to find more alibi
witnesses other than the father, but was unable to do
so because Stitts could not identify anyone he knew
who was there (and recall that Stitts’s father testified
that Stitts’s brother was also at the Post that night), or
because of the passage of time and the fading of mem-
ories, then failure to further investigate might not be
unreasonable. See Rompilla, 545 U.S. at 383 (“reasonably
diligent counsel may draw a line when they have
good reason to think further investigation would be a
waste”); Strickland, 466 U.S. at 691 (“[W]hen a defendant
has given counsel reason to believe that pursuing
certain investigations would be fruitless or even
harmful, counsel’s failure to pursue those investigations
may not later be challenged as unreasonable.”). Or if
No. 12-2255 15
trial counsel interviewed a few potential alibi witnesses
but each of them expressed uncertainty as to whether
Stitts was at the Post precisely at the time of the
shooting (and we note that the Post appears to be within
a short driving distance to the shooting site), then it
might be reasonable to end the investigation there. See,
e.g., Burger v. Kemp, 483 U.S. 776, 792-94 (1987) (failure
to interview additional witnesses was reasonable,
where those already interviewed revealed information
that would have harmed the defendant’s case). But
nothing in the record reflects anything even close to these
scenarios, or any other reason that might reasonably
justify a decision not to investigate the possibility of
other alibi witnesses. Notably, the State was unable to
provide any such reason, either in its brief or at oral
argument.4 The state court’s decision was therefore
an unreasonable application of Strickland.
B. State Court Unreasonably Applied Strickland
When It Found No Prejudice
We turn next to prejudice. The state court found that
even if trial counsel were ineffective, there was no preju-
dice. But no “fairminded jurist” would arrive at this
conclusion, Harrington, 131 S. Ct. at 786, because the
prosecution’s case rested entirely on the testimony of
two somewhat unreliable witnesses. As the Indiana
4
Instead, the State principally argued at oral argument that
trial counsel did investigate further, a point which we address
separately below.
16 No. 12-2255
Court of Appeals itself noted on direct appeal, the pros-
ecution’s closing argument “pointed out that no wit-
ness had contradicted Lawton’s and Charles’s testimony
that Stitts had been in the car when Hartson was shot,
and that no witness had contradicted Lawton’s testi-
mony that he had witnessed Hartson’s murder.” (App. 18.)
This would not have been the case if alibi witnesses
took the stand. And if these witnesses testified, the
trial would have been transformed from a one-sided
presentation of the prosecution’s case into a battle
between competing eyewitness testimony, where there
would have been a “reasonable probability” that a jury
would have reasonable doubt as to Stitts’s guilt and
therefore acquit. Harrington, 131 S. Ct. at 787 (quoting
Strickland, 466 U.S. at 694); see Smith v. Cain, 132 S. Ct.
627, 630 (2012) (evidence impeaching prosecutor’s eye-
witness testimony was “plainly material” when that
eyewitness testimony “was the only evidence linking
[the defendant] to the crime” (emphasis in original));
United States v. Agurs, 427 U.S. 97, 113 n. 21 (1976) (“If, for
example, one of only two eyewitnesses to a crime had
told the prosecutor that the defendant was definitely
not its perpetrator and if this statement was not dis-
closed to the defense, no court would hesitate to
reverse a conviction resting on the testimony of the other
eyewitness.” (citation and quotation marks omitted)); see
also, e.g., Washington, 219 F.3d at 635 (“All Washington
needed to do was establish a reasonable doubt, and
having additional, credible alibi witnesses would have
covered a lot of ground toward that goal. The Wisconsin
Court of Appeals looked at the mass of evidence that
No. 12-2255 17
Washington could have produced but for Mr. Engle’s
errors, and it unreasonably concluded that its absence
did not cause prejudice.”). Because there is no “rea-
sonable argument” that could justify the state court’s
finding of no prejudice, Harrington, 131 S. Ct. at 788, the
state court’s application of Strickland’s prejudice prong
was also unreasonable under § 2254(d)(1).
C. District Court Should Determine the Extent of
Trial Counsel’s Investigation
Though the state court decision was an unreasonable
application of Strickland, what remains unresolved is
whether trial counsel in fact limited his alibi investiga-
tion to an interview of Stitts’s father. If trial counsel did
more than simply interview Stitts’s father (as the State
explicitly asserted for the first time at oral argument),
then his conduct might have been reasonable under
Strickland, and Stitts’s habeas petition would be denied.
The state appellate court decision did not answer that
critical factual question (and neither did the state trial
court). Instead, the court essentially assumed for the
sake of argument that trial counsel’s investigation
was limited to the father, but concluded (unreasonably)
that such a limited investigation would have passed
constitutional muster anyway. Nor is the record so
clear that we can simply answer this question as an
appellate court. Cf., e.g., Wiggins, 539 U.S. at 531 (making
de novo factual determination concerning extent of coun-
sel’s investigation based on the “record as a whole”). On
the one hand, if trial counsel did not speak to the father,
18 No. 12-2255
a principal alibi witness, until the eve of trial, it is rea-
sonable to infer that trial counsel did not talk to any-
one else. On the other hand, trial counsel’s affidavit
is entirely silent about the extent of his investigation.
Therefore we remand so that the district court may
first determine the extent of trial counsel’s alibi inves-
tigation and then determine de novo whether that inves-
tigation constituted ineffective assistance under Strick-
land. See Mosley v. Atchison, 689 F.3d 838, 853 (7th Cir.
2012) (“Where a habeas petitioner shows that a state
court’s decision denying relief was contrary to or an
unreasonable application of federal law, that will often
show that the petitioner is entitled to relief, but . . . it
will not do so always and automatically. Whether the
petitioner is actually entitled to relief—whether under
§ 2254(a) he is in custody in violation of the Constitution
or laws or treaties of the United States—is a separate
question.”). Remand is appropriate in situations like
these because the state court did not make a critical
factual finding to which we may defer. See 28 U.S.C.
§ 2254(e)(1) (“a determination of a factual issue made by
a State court shall be presumed to be correct”). As we
explained in Mosley:
The situation here is similar to that when a trial
court erroneously grants a defendant’s motion for
summary judgment. An appellate court will as-
sume that the plaintiff’s evidence is true and will
reverse the summary judgment if there are
genuine issues of material fact. The appellate
court’s reversal, though, usually will not order
No. 12-2255 19
that a final judgment be entered in favor of the
plaintiff, but will remand for a trial to resolve
those disputed issues of fact.
689 F.3d at 853. For example, in Mosley, the state court
found that the Strickland claim must fail even assuming
that the affidavits submitted by the petitioner were true,
without determining whether the affidavits were in fact
true. So after we found the state court’s application of
Strickland to be unreasonable, we remanded for the
district court to determine in the first instance whether
the affidavits were true. See id. at 854; see also, e.g.,
Wiggins, 539 U.S. at 523-31 (considering de novo whether
trial counsel’s investigation was in fact limited to two
documents, where the state court “clearly assumed” that
counsel’s investigation was so limited without making
an express factual determination). We do the same here.
This procedure is not inconsistent with Cullen v.
Pinholster, 131 S. Ct. 1388 (2011), which held that review
for unreasonable application of clearly established
federal law under § 2254(d)(1) “is limited to the record
that was before the state court that adjudicated the
claim on the merits.” Id. at 1398. We do not remand
for an evidentiary hearing to determine whether the
state court unreasonably applied Strickland pursuant to
§ 2254(d)(1); we have already found that it did, without
going outside the state court record. Instead, we remand
to reach an issue that the state court never addressed:
what exactly trial counsel actually did in investigating
the alibi defense and whether that was unreasonable
under Strickland. This inquiry is basically a fresh determi-
20 No. 12-2255
nation of constitutionality pursuant to § 2254(a). See 28
U.S.C. § 2254(a) (habeas petition shall not be enter-
tained unless petitioner “is in custody in violation of
the Constitution”); Mosley, 689 F.3d at 852-54 (remand
under similar circumstances is pursuant to § 2254(a), not
§ 2254(d), determination and so does not run afoul of
Pinholster); cf. Toliver v. Pollard, 688 F.3d 853, 859-60
(7th Cir. 2012) (“Pinholster does not apply to Mr. Toliver’s
case because the Wisconsin courts never addressed
whether Mr. Toliver’s counsel performed deficiently.
Pinholster prohibits federal evidentiary hearings only
on inquiries that are subject to AEDPA—that is,
inquiries that the state courts have addressed.”). As
Justice Breyer’s separate opinion in Pinholster explains,
If the federal habeas court finds that the state-
court decision fails [§ 2254(d)]’s test . . ., then an
[evidentiary] hearing may be needed. For
example, if the state-court rejection assumed the
habeas-petitioner’s facts (deciding that, even if
those facts were true, federal law was not vio-
lated), then (after finding the state court wrong
on a (d) ground), an [evidentiary] hearing might
be needed to determine whether the facts
alleged were indeed true.
Pinholster, 131 S. Ct. at 1412 (Breyer, J., concurring in part
and dissenting in part); see also Mosley, 689 F.3d at 853-54
(discussing this distinction). That is essentially the situa-
tion here. Though the state court did not explicitly say
it was “assuming” any particular set of facts, the state
court framed the issue as being whether trial counsel
No. 12-2255 21
conducted any alibi investigation at all, which made
it unnecessary for the state court to determine whether
trial counsel did more than interview Stitts’s father. Its
conclusion that the interview was sufficient was there-
fore no different from saying that “even if [petitioner’s]
facts [that trial counsel only interviewed the father] were
true, federal law was not violated.” Pinholster, 131 S. Ct.
at 1412 (Breyer, J., concurring in part and dissenting in
part). Since we found that conclusion to be unreasonable,
we now remand “to determine whether the facts alleged
[about trial counsel’s limited investigation] were
indeed true.” Id.
If the district court finds that trial counsel performed
no further investigation and there was no other fact
that would reasonably justify that conduct, then the
district court should grant Stitts’s habeas petition under
the reasoning we have articulated above. But if the
district court finds that trial counsel did more, then it
must determine de novo whether that investigation was
reasonable under Strickland. Moreover, we note that
although we have largely framed the critical factual
issue as being about whether or not trial counsel’s alibi
investigation was limited to an interview with Stitts’s
father, we do not intend to suggest that the district court
cannot make other factual findings that may be relevant
to determining whether there was a violation of
Strickland pursuant to 28 U.S.C. § 2254(a). This may in-
clude, but is not limited to, determining when and
what exactly Stitts told trial counsel, why trial counsel
did not talk to Stitts’s brother, what exactly Stitts’s
father told trial counsel, and any facts that may explain
22 No. 12-2255
why trial counsel ended his alibi investigation at what-
ever point he chose to end it.
III. CONCLUSION
For the above-stated reasons, we R EVERSE the district
court’s denial of Stitts’s petition and R EMAND for pro-
ceedings consistent with this opinion.
4-15-13