White, Jerome v. Godinez, Salvador ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3503
JEROME WHITE,
Petitioner-Appellee,
v.
SALVADOR A. GODINEZ,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 94 C 2055—Harold A. Baker, Judge.
____________
ARGUED MAY 13, 2002—DECIDED AUGUST 22, 2002
____________
Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Jerome White was convicted,
following a jury trial in state court, of murder and con-
spiracy to commit murder. After his conviction was af-
firmed on direct appeal and state post-conviction relief
was denied, White petitioned for habeas corpus, asserting,
among other things, that his trial counsel was ineffec-
tive because he failed adequately to consult with him be-
fore trial and failed to call his alleged accomplice, Bernice
Caldwell, to testify in his defense. In an earlier appeal,
we held that the district court erred in dismissing his
claim without an evidentiary hearing on the question of
counsel’s performance, and that White had established
2 No. 01-3503
that he was prejudiced by counsel’s performance. White v.
Godinez, 143 F.3d 1049 (7th Cir. 1998) (White I). After
hearing evidence on remand, the district court held that
trial counsel’s performance was constitutionally inade-
quate and granted the writ of habeas corpus. We agree
that White has demonstrated that counsel’s perform-
ance was inadequate, and finding no basis to disturb our
earlier holding that prejudice was established, affirm the
judgment of the district court.
I. BACKGROUND1
Waymond Jackson and Donald Stewart were robbed
and shot by Doyle Johnson and Al Walker at the Pesotum
rest area on Interstate 57 near Champaign, Illinois. Jack-
son died, but Stewart survived. Jerome White and Bernice
Caldwell (whom White refers to as his common-law wife)
were charged with murder and conspiracy to commit mur-
der for hiring Johnson and Walker to kill the victims.
At Jerome White’s trial, Johnson, the state’s primary
witness, testified that the victims were competitors to
a prostitution business run by White and Caldwell at the
Pesotum rest area, who wanted them “taken out of the
game.” Johnson said that he and Walker met White and
Caldwell in Chicago and rode with them to Champaign,
Illinois. During that trip, according to Johnson, White
offered Johnson and Walker each $1,000 to do the job.
When they arrived in Champaign, Johnson and Walker
accompanied White and Caldwell to Caldwell’s home,
where they obtained a rental car and guns.
The theory of defense relied on by White’s counsel,
Michael Green, was that it was Jerome’s brother, Michael
1
The facts of this case are presented in greater detail in White I,
143 F.3d 1049.
No. 01-3503 3
White, who hired Johnson and Walker to shoot the
two victims. This theory was consistent with Johnson’s
original statement to police, which implicated Michael
White. But Johnson changed his story 5 days before trial
and instead implicated Jerome White. Green’s theory
was contradicted by Caldwell’s young daughter, Theresa,
who testified that she saw Jerome White (not Michael)
and her mother meet with two men at Caldwell’s home
on the night of the murder. The police also verified that
Michael White had an alibi—he was on a Greyhound bus
traveling to Champaign and could not have met with
Johnson in Champaign at the time that the murder was
planned.
After his conviction was affirmed on direct appeal, White
filed a petition for post-conviction relief in state court
which included the claims at issue in this appeal: that
Green rendered ineffective assistance by meeting with
him for just 20 minutes before trial and failing to con-
sult with him regarding potential witnesses and trial
strategy. The circuit court dismissed his petition without
an evidentiary hearing, the appellate court affirmed, and
the Illinois Supreme Court denied leave to appeal. See
White I, 143 F.3d at 1052. White then filed a petition for
habeas corpus in federal district court. As to the ineffec-
tive assistance claims that are still at issue, we held that
the district court erred in dismissing his claims with-
out conducting an evidentiary hearing. We also held that
White had established that Green’s performance prej-
udiced him. White I, 143 F.3d at 1054-56.2
2
We also concluded that the district court erred in holding that
other claims were procedurally defaulted, but the Supreme Court
directed that we reevaluate our decision in light of O’Sullivan
v. Boerckel, 526 U.S. 838 (1999). See Godinez v. White, 526 U.S.
1001 (1999). On remand from the Supreme Court, we held that
(continued...)
4 No. 01-3503
On remand from this court, the district court held an
evidentiary hearing. White testified that his trial attor-
ney, Michael Green, met with him twice before trial. At
the first meeting, which was five months before trial and
lasted 10 minutes, White and Green discussed Green’s fee
and how White would pay it. After this meeting and before
trial, White telephoned Green’s office but Green did not
return his phone calls. White did not meet with Green
again until the evening before trial. At that second meeting,
which lasted 20 minutes, they discussed jury selection
issues, Theresa Caldwell’s testimony, and the possibility
that Bernice Caldwell would testify for the state.
According to White, he asked Green to explore the
possibility of Caldwell’s testifying on his behalf, but Green
ignored his request. Green never discussed trial strategy
or any other possible defense witnesses, including White
himself, and never asked for information relevant to
the defense. White offered an affidavit from Bernice
Caldwell, in which she stated that she would have tes-
tified at White’s trial, and the transcripts of Caldwell’s
and White’s testimony from Caldwell’s trial. The testi-
mony contained in those documents is consistent with
White’s version of what he and Caldwell would have said
if called to testify at his trial: that he and Caldwell were
at her home on the night of the murder, went to bed
shortly after arriving there with Johnson and Walker,
and discovered that the guns and rental car were missing
when they awoke.
White also introduced inmate visitor logs from the jail
which show that Green signed in and out for meetings
2
(...continued)
the claims at issue in this appeal survived and were not proce-
durally defaulted. White v. Godinez, 192 F.3d 607 (7th Cir. 1999)
(White II).
No. 01-3503 5
with White twice. According to those records, the first
time Green signed out 15 minutes after he signed in,
and the next time he signed out 30 minutes after he
signed in. White testified that on the evening of the sec-
ond visit, he was in the shower when he learned that he
had visitors and that it took him five to seven minutes
longer than usual to reach the visitor area. The county
sheriff, who oversaw operations at the jail where Green
was detained before and during the trial, testified (by way
of deposition admitted at the hearing) that it was the
jail’s practice to record all inmate visits and that he could
not remember a single incident of an officer’s failing to
record an attorney’s visit during his twenty-year tenure.
The district court concluded that Green’s performance
was outside the range of professionally competent rep-
resentation. Based on this court’s earlier holding that
White was prejudiced by Green’s performance, the dis-
trict court granted White’s petition for a writ of habeas
corpus. The state appeals and, for the reasons that follow,
we affirm.
II. ANALYSIS
We evaluate White’s claim of ineffective assistance of
counsel under the two-part standard of Strickland v.
Washington, 466 U.S. 668 (1984), which requires that
a defendant show that the attorney’s performance fell be-
low “an objective standard of reasonableness,” 466 U.S.
at 688, and “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694; Hen-
derson v. Walls, 296 F.3d 541, 553 (7th Cir. 2002). White’s
petition was filed before the effective date of the Anti-
terrorism and Effective Death Penalty Act (AEDPA), so
we apply pre-AEDPA standards. Wright v. Walls, 288
6 No. 01-3503
F.3d 937, 941-42 (7th Cir. 2002); White I, 143 F.3d at 1053.
We presume correct the state court’s determination of
historical fact, Kavanaugh v. Berge, 73 F.3d 733, 735 (7th
Cir. 1996), and review the district court’s findings of fact
for clear error. Griffin v. Camp, 40 F.3d 170, 172 (7th
Cir. 1994). We review de novo the questions whether
counsel’s performance was constitutionally deficient and
whether that performance prejudiced the defendant.
Strickland, 466 U.S. at 698; Wright, 288 F.3d at 942.
A. Deficient Performance
As the district court noted, the question which re-
mained after our remand in White I was whether Green
adequately consulted with White and investigated the
facts necessary for an adequate defense. The Supreme
Court has recognized counsel’s duty to consult with
his client as one of the basic components of adequate rep-
resentation:
Representation of a criminal defendant entails
certain basic duties. . . . From counsel’s function as
assistant to the defendant derive the overarching
duty to advocate the defendant’s cause and the
more particular duties to consult with the defen-
dant on important decisions and to keep the defen-
dant informed of important developments in the
course of the prosecution.
Strickland, 466 U.S. at 688. A brief consultation does not
by itself establish that counsel’s performance was inade-
quate. White I, 143 F.3d at 1054. But as we noted in the
earlier appeal, if the alleged inadequate consultation caused
counsel to misapprehend or fail to investigate the facts
necessary for an adequate defense, then his later “mis-
steps . . . are almost necessarily not attributable to sound
strategic decisions.” 143 F.3d at 1054. In this way, the two
No. 01-3503 7
issues relating to Green’s performance—his allegedly in-
adequate consultation and his failure to investigate or
call Bernice Caldwell as a witness—are intertwined.
The district court found that Green met with White
only twice before trial for a total of less than 45 minutes,
crediting White’s testimony about the number, duration,
and subject of his meetings with Green.3 The district
court concluded that, given the circumstances of this
case, Green’s consultation with White was inadequate.
The court noted that the defendant faced the death pen-
alty for charges of armed robbery, murder, and conspir-
acy arising from a plot involving “the machinations of
multiple players, all with their own rivalries and motives.”
The court rejected the state’s assertion that Green was
able to fully comprehend the nature and evidence of the
case with so little consultation.4 The court found that
because of the short consultation and the limited sub-
jects covered, Green was inadequately prepared and un-
able to make a reasonable decision not to explore Bernice
Caldwell’s possible testimony or to explore an alterna-
tive defense that would be supported by her testimony.
According to the district court, this inadequate prepara-
tion and investigation led to Green’s decision to mount
an implausible defense based on the theory that it was
Michael White who conspired with Bernice Caldwell to
murder the victims.
3
The state court made no findings on these issues, instead
disposing of White’s claim based on prejudice, see People v.
White, 536 N.E.2d 481, 486 (Ill. App. Ct. 1989), so we focus
our review on the district court’s findings of facts. See United
States ex rel. Partee v. Lane, 926 F.2d 694, 699 (7th Cir. 1991).
4
By comparison, the court found that the other players charged
or implicated in the conspiracy spent considerably more time
consulting with their court-appointed attorneys: Bernice Caldwell
(13 hours); Michael White (20 hours); Derrick White (10 hours).
8 No. 01-3503
The state’s arguments on appeal for the most part
take issue with the district court’s credibility determina-
tions and invite us to reweigh the evidence—arguments
that miss the mark given the scope of our review of the
district court’s factual determinations, which, as we said,
is for clear error. See Anderson v. City of Bessemer City,
470 U.S. at 573-74 (1985) (“If the district court’s account
of the evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not reverse it
even though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently.”).
For example, the state questions the district court’s reli-
ance on the jail records, pointing out that the records
were not always complete and sometimes lacked arrival
and departure times. Because of their incompleteness,
according to the state, the records could not prove that
there were only two jail visits or that Green’s consulta-
tion with White was limited to 45 minutes. We agree
with the district court that the sheriff’s testimony was
sufficient to support the admissibility of the logs as rec-
ords of a regularly conducted activity, see Fed. R. Evid.
803(6), and that the state’s arguments about incomplete-
ness implicate the weight, and not the admissibility, of
the records. See United States v. Keplinger, 776 F.2d 678,
694-95 (7th Cir. 1985). In any event, the district court’s
finding that the visits were limited to 45 minutes was
also supported by White’s unrebutted testimony, and
the state has not given us sufficient reason to second-guess
the court’s decision to credit that testimony. See Foster v.
Schomig, 223 F.3d 626, 634 n.4 (7th Cir. 2000).
Next, the state contends that Green’s remarks during
trial—indicating that he obtained Green’s permission to
waive certain evidentiary objections and learned from
White information about Theresa Caldwell’s testimony—
show that his meetings with White must have been long-
er or that there must have been additional meetings not
No. 01-3503 9
reflected in the jail logs. The district court, however, be-
lieved White’s testimony that he never met privately
with Green other than during the two meetings at the jail,
and the state provided no evidence that contradicted
White’s testimony on this point.5 As the district court noted,
“[r]eceiving White’s permission to waive objections to lead-
ing questions would not have required much consultation,”
and Green’s “remarks about jury selection and Theresa
Caldwell’s statement were consistent with White’s testi-
mony that they talked about those matters—but noth-
ing else—during their brief meeting the night before trial.”
On the question of Green’s failure to explore the pos-
sibility of Bernice Caldwell’s testifying, the state con-
tends that the district court engaged in improper second-
guessing of Green’s trial strategy when it found Green’s
defense theory implausible compared to the alternative
theory available through the testimony of White or Ber-
nice Caldwell (or both), which (unlike Green’s defense that
attempted to lay responsibility on Michael White) would
have been consistent with the testimony of Caldwell’s
daughter, Theresa. The state argues that it was reason-
able for Green to base the defense on Michael White’s
involvement, given Johnson’s initial statement implicat-
ing Michael, and points out that, in the end, Michael’s
alibi was never explored at trial. The state’s failure to pre-
5
The court also heard testimony from a witness familiar with
the Champaign county courthouse, who said that the courthouse
lacked facilities for private consultations during the trial. The
state sought to rebut this testimony by way of an affidavit from
a witness who allegedly saw White talking to his lawyers dur-
ing jury selection and trial. But the affidavit was untimely (sub-
mitted 4 months after the close of evidence and without an
explanation for the delay) and the district court was therefore
within its discretion in excluding it. Kafka v. Truck Ins. Exchange,
19 F.3d 383, 388 (7th Cir. 1994).
10 No. 01-3503
sent evidence of Michael’s alibi, of course, could not have
been known to Green before trial, and in assessing Green’s
performance, we must rely on the facts “viewed as of
the time of counsel’s conduct.” Strickland, 466 U.S. at
689. By the time of his consultation on the night before
trial (the only time any substantive issues were discussed),
Green knew, or should have known, from discovery ma-
terials produced to the defense, that police had con-
firmed Michael White’s alibi and that Theresa Caldwell
would corroborate Johnson’s testimony that it was Jerome
White who met with him on the night the murder was
planned. Green’s failure to discuss with White or investi-
gate the alternative defense that could have been sup-
ported by Bernice Caldwell’s testimony simply cannot be
attributed to strategic decisionmaking when he had not
explored the facts necessary to make that decision. See
Strickland, 466 U.S. at 690 (“[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.”). In
the words of the district court, “Green could not have made
a strategic decision to reject White’s [and Caldwell’s] ex-
planation as a defense theory if he never bothered to hear
it in the first place.”
Nevertheless, the state asserts that Green’s represen-
tation was adequate when viewed as a whole. The state
relies, for example, on Green’s cross-examination of John-
son to show his preparation and mastery of the facts. But,
as the district court points out, most of the cross-exam-
ination was designed to further the theory that Michael
White was to blame, and on this issue, Green’s questions
displayed confusion—not mastery—of the facts. For exam-
ple, Green sought to establish that the change in John-
son’s story could be attributed to his close, longstanding
relationship with Michael, but instead elicited testimony
that Johnson had gone to school with Jerome White and
actually knew him better. In any event, we fail to see how
No. 01-3503 11
the thoroughness with which Green may or may not
have pursued his own theory of the case can compensate
for his failure to discuss with White or consider a defense
based on White’s version of events—a necessary step be-
fore Green could made a reasonable decision about which
course to follow.
Finally, the state asserts that the district court gave too
little weight to the participation of Charles Aron, an at-
torney with whom Green shared office space. Aron tes-
tified at deposition that he did not independently consult
with White (he was present at Green’s second meeting
with White) and did not interview witnesses or other-
wise investigate the facts. Aron described his role in the
defense as “carrying the briefcase.” The state points out,
however, that Aron participated in some of the preliminar-
ies before opening statements, argued motions in limine,
and represented White at sentencing, but none of this
undermines the district court’s finding that Aron did not
undertake any independent investigation and did not
separately consult with Green. Given this finding, which
was amply supported by White’s and Aron’s testimony,
Aron’s participation in other matters sheds no light on
the question whether Green’s representation was adequate.
We find no clear error in the district court’s findings
of fact, and hold that Green’s brief consultation with
White and his failure to explore the possibility of
Bernice Caldwell’s testifying fell below the standard of
reasonably effective representation.
B. Prejudice
In the earlier appeal, we held that the jury might well
have believed the alternative defense that Johnson and
Walker stole the guns and rental car when White and
Caldwell were sleeping. We concluded that there was a
reasonable probability that the outcome would have been
12 No. 01-3503
different were it not for Green’s performance and held
that, assuming that White could prove on remand that
Green’s performance was deficient, he had sufficiently
shown prejudice so that the petition for writ of habeas
corpus should be granted. White I, 143 F.3d at 1056.
The state takes issue with this holding, but under the
law of the case doctrine, we do not reopen issues decided in
earlier stages of the same litigation unless we have a
strong conviction that the earlier ruling was wrong and the
party that benefitted from the earlier ruling would not
be unduly harmed. Avitia v. Metro. Club of Chicago, 49
F.3d 1219, 1227 (7th Cir. 1995). The state’s main argu-
ment that our finding of prejudice was wrong is that
Green’s failure to consult White about or investigate the
alternative defense would not have mattered because it
was unlikely that Bernice Caldwell would have testified
at White’s trial. In support, the state points out that
Caldwell was a fugitive for much of the time before White’s
trial, suggests that she might not have been willing
to testify, and that Caldwell’s proposed testimony—as
described in her affidavit—might have been a later cre-
ation. But the state does not identify any evidence to
contradict Caldwell’s statement in her affidavit that
she would have testified at White’s trial in a manner
consistent with the alternative defense suggested by
White. The state’s speculation about alternative possible
scenarios—in which Green’s failure to investigate Cald-
well’s possible testimony would not have mattered—
is affirmatively rebutted by Caldwell’s affidavit, and the
state does not argue that the affidavit should not have
been admitted or considered by us in our earlier holding
on the question of prejudice.6
6
Furthermore, our holding of prejudice was not necessarily
dependant on Caldwell’s testifying. We said that there was a
(continued...)
No. 01-3503 13
In a similar vein, the state argues that our finding of
prejudice was erroneous because the alternative defense
supported by Caldwell’s or White’s potential testimony
was weak. The state suggests that the jury might not
have believed Bernice Caldwell, who was in competition
with and fought with Jackson and his prostitutes, who
secured the guns and rental car used in the crime, and
who ultimately was convicted after employing the very
defense we faulted Green for failing to develop. We were
aware of these possibilities in our earlier evaluation of
prejudice and acknowledged that the outcome under the
alternative defense was far from certain:
The jury might well have chosen not to believe this
alternative story, just as it apparently disbelieved
the defense based on the claim that Michael White
ordered the murder. But there is at least a rea-
sonable probability that the jury would have seen
matters differently if Caldwell, White, or both of
them had testified to their version of events. In-
stead of being given a choice between two state-
ments by the killer himself, only one of which
was consistent with Theresa Caldwell’s testimony,
the jury would have been given a choice between
Johnson’s story and a second, equally plausible
story told by Caldwell and White. Theresa Cald-
well’s testimony no longer would have been fatal
to the defense, because it would have been en-
tirely consistent with the theory that Johnson and
Walker stole the guns and the car after Caldwell
and White went to bed.
6
(...continued)
reasonable probability that the result would have been different
if “Caldwell, White, or both of them had testified to their version
of events.” White I, 143 F.3d 1056 (emphasis added). White’s
testimony at the evidentiary hearing confirmed that he was
prepared to testify to his version of events.
14 No. 01-3503
White I, 143 F.3d at 1056. And in evaluating a claim of
prejudice, the question is not whether counsel’s deficient
performance more likely than not made a difference in the
outcome; rather, it is whether there is a “reasonable proba-
bility” that the result would have been different, meaning
“a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 693-94. We answered
that question in the earlier appeal and the state hasn’t
pointed to argument or facts that we overlooked or mis-
apprehended sufficient to give us a strong conviction
that the earlier holding was wrong. See Avitia, 49 F.3d
at 1227; compare Bebout v. Norfolk & W. Ry. Co., 47 F.3d
876, 879 (7th Cir. 1995) (reversing a decision on sub-
sequent appeal because the court based its prior decision
on mistaken facts). Accordingly, we decline to revisit the
question.
III. CONCLUSION
We conclude that Green’s performance at White’s trial
fell below the standards of reasonable representation.
Given our earlier holding that White had established prej-
udice from this representation, we affirm the judgment
of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-22-02