Cortez Jones v. Victor Calloway , 842 F.3d 454 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1174
CORTEZ JONES,
Petitioner-Appellee,
v.
VICTOR CALLOWAY,
Respondent-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 C 4429 — James B. Zagel, Judge
____________________
ARGUED JANUARY 19, 2016 — DECIDED NOVEMBER 15, 2016
____________________
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. After a bench trial in Cook County
Circuit Court, Cortez Jones was convicted of murder for the
1999 shooting death of Friday Gardner. In his federal habeas
petition, see 28 U.S.C. § 2254, Jones alleged that his trial
counsel was constitutionally ineffective in violation of the
rule of Strickland v. Washington, 466 U.S. 668 (1984). The
factual basis for this claim was his attorney’s failure to
2 No. 15-1174
present the testimony of Michael Stone, a codefendant who
was tried separately. Stone confessed to the crime and has
consistently maintained that he—and he alone—shot
Gardner. Stone’s story matched the physical evidence and
some (though not all) of the eyewitness testimony. Indeed, a
jury convicted Stone of murdering Gardner before Jones’s
bench trial began, and Stone was willing to testify for Jones
had he been asked.
But Jones fumbled his Strickland claim in state court by
failing to submit an affidavit from Stone, as Illinois law
requires. The state appellate court found the claim proce-
durally defaulted but also rejected it on the merits based on
the existing record, holding that the failure to call Stone was
a matter of “trial tactics or strategy” and thus immune from
constitutional scrutiny.
Ruling on Jones’s § 2254 petition, the district court ex-
cused the procedural default based on new evidence of
Jones’s actual innocence—namely, Stone’s testimony. After
an evidentiary hearing, the judge concluded that the state
appellate court unreasonably applied Strickland and that trial
counsel’s failure to present Stone’s testimony was constitu-
tionally ineffective representation. The judge accordingly
granted the petition and ordered Jones retried or released.
We affirm. The judge’s decision to excuse the procedural
default was sound, as was his merits ruling. Trial counsel’s
failure to call Stone cannot reasonably be classified as a mere
matter of trial strategy within the range of objectively rea-
sonable professional judgments. Omitting the available
testimony of the man who admits to being the lone shooter
was both constitutionally deficient performance and preju-
dicial.
No. 15-1174 3
I. Background
A. The Murder of Friday Gardner
Around midday on September 12, 1999, three men wear-
ing masks broke into a second-floor apartment at 6102 South
May Street on Chicago’s south side. Michael Stone shared
the apartment with his cousins Latonya Cheeks, Felicia
Anderson, and Michella Anderson. Corey Grant, Felicia’s
fiancé, also lived there. Grant and Michella were home when
the break-in occurred, and one of the masked men beat
Grant with a baseball bat. The intruders then stole some
jewelry, a bag of marijuana, and $200 in cash before fleeing
the apartment.
Stone and Felicia Anderson arrived home soon after the
assault and robbery. Stone called Michael Carter, his half-
brother, and told him what happened. Carter, whose nick-
name is “Junior,” was upset by the news. Driving in his car
not far from the May Street apartment, Carter spotted his
friend Cortez Jones, the petitioner, and told him about the
robbery. Jones hopped into the car with Carter and the two
men drove to the May Street apartment.
Carter introduced Jones to the others and the group dis-
cussed the identity of the assailants. Suspicion fell on Friday
Gardner, a cousin and frequent houseguest of Rena Phillips,
who lived in the apartment across the hall. It’s not clear who
first suggested that Gardner was involved—Carter, Felicia,
Michella, or Jones—but everyone assumed the perpetrators
came from the neighborhood. And they all knew that
Gardner kept a van parked on the street outside the May
Street apartment.
4 No. 15-1174
Carter and Jones then left the apartment, located
Gardner’s van, broke into it, and stole the radio. This was
apparently an effort to lure Gardner onto the street. Jones
denies participating in this theft, but it’s undisputed that he
and Carter then left the neighborhood together and did not
return until around nine or ten o’clock that evening in
response to a page from Stone.
At about ten o’clock, Gardner appeared on the street out-
side the May Street apartment. Carter and Jones approached
him and got into an argument so heated that Stone, who was
still in the second-floor apartment, heard the commotion
from the window. The argument also drew the attention of
many neighbors.
Stone kept a .380-caliber pistol in the basement of the
apartment building. As the situation on the street intensified,
he retrieved the gun and went outside to watch the argu-
ment from the alley. Stone maintains that he saw Gardner
draw and aim a handgun at Carter and Jones, so he ap-
proached from the alley and fired his .380 pistol at Gardner
three times. He says he shot Gardner to protect Carter, his
half-brother. Two shots hit their mark: Gardner died at the
scene with two .380-caliber bullets in his abdomen. Three
.380-caliber shell casings were found near the body. No gun
was found on Gardner’s person, but trial testimony suggest-
ed that someone may have removed one from his hand after
the shooting.
Stone, Carter, and Jones fled the scene. Carter and Jones
were arrested the next day, and Stone turned himself in to
Chicago police the following day. Stone immediately con-
fessed to shooting Gardner using his .380-caliber handgun.
He said he did it in defense of his half-brother. The
No. 15-1174 5
.380 pistol was never recovered; Stone said he threw it in
some bushes as he fled the scene.
B. Trial and State Postconviction Proceedings
All three men were charged with first-degree murder.
The charges against Stone and Carter were tried jointly to a
jury. The prosecution’s theory was that both Stone and
Carter fired shots at Gardner. As an alternative theory
against Carter, the prosecutor argued that if Stone alone shot
Gardner, then Carter was responsible under an accountabil-
ity theory because he planned the crime with Stone and
helped lure Gardner onto the street. Stone testified in his
own defense, telling the jury that he shot Gardner with his
.380 handgun to prevent him from shooting Carter. The jury
found both defendants guilty. They were sentenced to
30 years in prison. See Carter v. Duncan, 819 F.3d 931, 935–37
(7th Cir. 2016).
Jones’s case was tried separately, and he opted for a
bench trial. The prosecution’s sole theory at his trial was that
Jones was the shooter; accountability theory played no part.
The prosecution’s case rested on testimony from several
eyewitnesses, but their accounts diverged in significant
respects.
As we’ve noted, Gardner’s cousin Rena Phillips lived in
the apartment across the hall from Stone and his cousins.
Her son Antonio lived with her, and both Phillipses testified
that they saw Jones shoot Gardner at very close range.
Antonio said he watched the argument from his apartment
window and saw Jones pull out a gun; he said Carter also
had a gun. He testified that Jones was so close to Gardner
that he had to take a step back in order to extend his arm
6 No. 15-1174
and fire the first shot. He estimated that Jones’s gun was
only about an inch away from Gardner when he pulled the
trigger. Antonio testified that after the first shot was fired, he
ran down the stairs and heard two more shots as he ran.
When he reached the street, he saw Carter and Jones run-
ning away from the scene.
Rena Phillips said she and her boyfriend Paul Calmese
had just pulled up outside the building when the confronta-
tion started. Tommy Gaston, a friend of Gardner’s, was also
on the street that night. Rena testified that she saw Jones
shoot Gardner twice at close range. She also said Carter had
a gun and fired shots at Gardner.
Gaston’s version of events was quite different. He said he
didn’t see a gun in Jones’s hand but thought he might have
had one in his coat pocket and may have fired a shot
through his coat. Gaston’s testimony conflicted with the
account he gave on the night of the shooting. Back then he
told the police that he saw Stone emerge from the alley and
shoot Gardner. When questioned about this discrepancy at
trial, Gaston denied that he changed his story.
The only eyewitness with no connection to either the vic-
tim or the three defendants was Cedric Taylor, a Chicago
police officer. Officer Taylor was on duty and standing with
his partner in front of a police station about a block west of
the shooting. The station was across from the alley where
Stone watched the argument unfold and from which he said
he emerged and fired three shots at Gardner. Officer Taylor
testified that as he glanced toward the alley, he saw muzzle
flashes and heard two gunshots, then heard three more shots
much louder than the first two. He ran toward the gunfire
and saw two men ducking down behind a Cadillac and two
No. 15-1174 7
men running away from the scene. One of the fleeing men
carried a dark object that Officer Taylor said could have been
a handgun. Officer Taylor and his partner gave chase but
couldn’t catch up with the fleeing men.
The defense eyewitnesses gave still another—and quite
different—account. Latonya Cheeks, Stone’s cousin and
apartment-mate, said she heard Carter and Jones arguing
with Gardner and saw Gardner draw a gun. She testified
that Stone came running from the alley and shot Gardner;
she said she heard three shots. Her trial testimony conflicted
with her grand-jury testimony in one respect: In the grand
jury, Cheeks said that Gardner was unarmed. Michella
Anderson, another Stone cousin and apartment-mate, told
the court that she saw someone come from the alley and
shoot Gardner and that Jones was not the shooter. She also
testified that she saw Gardner with a gun. Neither Stone nor
Carter testified.
The physical evidence introduced at trial was limited.
Three .380-caliber shell casings were found at the scene near
Gardner’s body. No fingerprints were recovered from the
casings. Gardner died from two gunshot wounds to the
abdomen. Two .380-caliber bullets were recovered from his
body, and forensic analysis established that the bullets were
fired from the same firearm. The forensic and autopsy
evidence was inconsistent with a shooting at close range,
contradicting the testimony of Rena and Antonio Phillips.
In closing argument Jones’s attorney told the court that
the physical evidence and eyewitness accounts were too
widely divergent to support a finding of guilt beyond a
reasonable doubt. Counsel also noted the jury’s verdict in
the Stone/Carter trial and pointed out that the prosecution
8 No. 15-1174
had dramatically changed its theory of the case. The judge
found Jones guilty and imposed a sentence of 30 years in
prison.
The Illinois Appellate Court affirmed on direct appeal.
Jones then pursued state postconviction relief alleging that
the failure to call Stone as a defense witness at trial was
constitutionally ineffective under Strickland. (He raised other
arguments as well; none are relevant here.) The postconvic-
tion court summarily dismissed the petition because Jones
had not included an affidavit from Stone, as Illinois law
requires. See 725 ILL. COMP. STAT. 5/122-2. The Illinois Appel-
late Court held that this procedural violation was inde-
pendently enough to affirm. People v. Jones, No. 1-05-1212, at
6 (Ill. App. Ct. Sept. 26, 2006) (unpublished order) (holding
that the procedural violation “alone justifies the summary
dismissal of defendant’s petition”).
But the court went on to apply Strickland based on the
existing record, holding that “counsel’s failure to call code-
fendant Stone as a witness is a matter of trial tactics or
strategy, which is purely a matter of professional judgment
and cannot support a claim of ineffective representation.” Id.
at 7. The court said that strategic decisions are immune from
constitutional scrutiny unless counsel “entirely fails” to
subject the prosecution’s case to adversarial testing. Id. at 7–
8. The court also held that the failure to call Stone was not
prejudicial for two reasons: (1) It was “highly likely” that
Stone would have invoked his Fifth Amendment right not to
testify; and (2) “several eyewitnesses” testified that Jones
shot the victim, so “the outcome of the trial would not have
been different had counsel attempted to present the testimo-
ny of codefendant Stone.” Id. at 8.
No. 15-1174 9
The decision was not unanimous. The dissenting judge
concluded that Jones had “raised the gist of a meritorious
claim of ineffective assistance” that warranted further
development on remand. Id. at 9 (Wolfson, J., dissenting).
The Illinois Supreme Court denied review.
C. Jones’s § 2254 Petition
Jones then moved his case to federal court. His § 2254 pe-
tition reprised the Strickland claim stemming from his trial
counsel’s failure to call Stone as a witness. The district judge
found the claim procedurally defaulted but held an eviden-
tiary hearing to give Jones an opportunity to satisfy the
miscarriage-of-justice exception to procedural default. This
required a showing of actual innocence. See generally Schlup
v. Delo, 513 U.S. 298 (1995).
The judge heard testimony from several witnesses who
had not testified at Jones’s trial. Felicia Anderson testified
that she saw Gardner draw a gun during the argument and
thought it was Carter who shot him. She said she ran from
the scene screaming, “Junior shot him. Junior shot him.”
(Recall that Carter’s nickname is Junior.) But she admitted
that she only heard the gunshots and did not actually see
Carter fire a gun. Paul Calmese, Rena Phillips’s boyfriend,
testified that he saw Stone approach from the alley but also
saw Jones pull out a gun, though he did not see him fire it.
Carter testified that Stone was the only person to fire a gun
and there was no plan to kill Gardner.
Most crucially, Stone testified that he—and he alone—
shot Gardner. He explained that as the argument on the
street escalated, he retrieved his .380 handgun from the
basement and positioned himself in the alley to watch the
10 No. 15-1174
confrontation. He said that he saw Gardner pull a gun from
his front waistband, so he emerged from the alley and fired
his .380 at Gardner three times to prevent him from shooting
Carter, his half-brother. Stone confirmed that he turned
himself in two days later and confessed in full to the police.
He also testified that he and Jones weren’t friends, he didn’t
plan the killing with Carter or Jones, and he never saw Jones
with a gun that night.
The final important witness was Brian Dosch, Jones’s tri-
al attorney. Dosch testified that he decided not to call Stone
as a witness at Jones’s trial because the police report summa-
rizing his confession wasn’t consistent about whether he
actually saw Gardner draw a gun before he fired the three
shots.
The judge credited Stone’s testimony, reviewed it against
the entire record, and concluded that it satisfied the actual-
innocence gateway to a merits review of the procedurally
defaulted Strickland claim. Moving to the merits, the judge
found Stone’s testimony entirely consistent with his prior
testimony at his own trial. Stone’s testimony was also con-
sistent with the physical evidence and the testimony of some
of the eyewitnesses; in contrast, the testimony of the prose-
cution’s eyewitnesses was inconsistent with the physical and
forensic evidence. The judge could conceive of no justifica-
tion for omitting Stone’s testimony at trial.
Accordingly, proceeding first under the deferential
standard of § 2254(d), the judge held that the Illinois Appel-
late Court unreasonably applied Strickland by treating
counsel’s failure to call Stone as a mere strategic or tactical
trial decision and declaring it immune from constitutional
scrutiny. Next, reviewing the claim independently under
No. 15-1174 11
§ 2254(a), the judge concluded that counsel’s performance
was both constitutionally deficient and prejudicial. The
judge accordingly granted the habeas petition and ordered
Illinois to retry its case against Jones or release him from
custody.
Illinois asks us to reverse that decision.
II. Analysis
We review the district court’s factual findings in a habeas
ruling for clear error; legal conclusions get independent
review. Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014).
A. Procedural Default and Actual Innocence
Section 2254(d) sets a high bar for state prisoners seeking
federal habeas review. A federal court may not grant a state
prisoner’s habeas petition unless the prisoner establishes
that the state court’s adjudication of his claim was “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court.” § 2254(d)(1). At issue here is the Sixth Amendment
right of the criminal accused to the effective assistance of
counsel as interpreted by the Supreme Court in Strickland.
To obtain a merits review of his claim, however, Jones
had to clear an additional high hurdle: procedural default.
As we’ve explained, the state postconviction court dismissed
Jones’s Strickland claim because he failed to include a sup-
porting affidavit from Stone or explain why an affidavit was
unavailable. Illinois law imposes this procedural require-
ment, see 725 ILL. COMP. STAT. 5/122-2, and the Illinois Appel-
late Court affirmed the lower court’s reliance on it. The
appellate court noted that Jones was required to, but did not,
submit an affidavit from Stone indicating that “he would
12 No. 15-1174
have been willing to testify” and “what the substance of that
testimony would have been.” This procedural violation
alone, the court held, justified the summary dismissal of the
Strickland claim.
Illinois courts regularly enforce the affidavit rule. See, e.g.,
Thompkins v. Pfister, 698 F.3d 976, 987 (7th Cir. 2012); see also
People v. Collins, 782 N.E.2d 195, 198 (Ill. 2002). So the Strick-
land claim is procedurally defaulted. See Thomas v. Williams,
822 F.3d 378, 384 (7th Cir. 2016) (explaining the two forms of
procedural default, noncompliance with state procedural
rules and failure to exhaust state remedies). And procedural
default ordinarily precludes federal habeas review. Id.
A state prisoner can overcome a procedural default by
establishing cause for the default and actual prejudice or by
showing that the federal court’s failure to address his claim
on the merits would work a fundamental miscarriage of
justice. See House v. Bell, 547 U.S. 518, 536–37 (2006); Schlup,
513 U.S. at 314–15. This case concerns the miscarriage-of-
justice path to merits review.
The miscarriage-of-justice exception to procedural de-
fault requires the petitioner to make a convincing showing of
actual innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1929
(2013); Schlup, 513 U.S. at 314–15. To pass through the actual-
innocence gateway to a merits review of a procedurally
barred claim, the petitioner must have “new reliable evi-
dence—whether it be exculpatory scientific evidence, trust-
worthy eyewitness accounts, or critical physical evidence—
that was not presented at trial,” Schlup, 513 U.S. at 324, and
must persuade the district court that it is “more likely than
not that no reasonable juror would have convicted him in
light of the new evidence,” id. at 327.
No. 15-1174 13
“New evidence” in this context does not mean “newly
discovered evidence”; it just means evidence that was not
presented at trial. Id. at 322, 324. And because an actual-
innocence claim “involves evidence the trial jury did not
have before it, the inquiry requires the federal court to assess
how reasonable jurors would react to the overall, newly
supplemented record.” House, 547 U.S. at 538. The inquiry
considers “all the evidence, old and new, incriminating and
exculpatory, without regard to whether it would necessarily
be admitted under rules of admissibility that would govern
at trial.” Id. (internal citations and quotation marks omitted).
The court must “make a probabilistic determination about
what reasonable, properly instructed jurors would do.”
Schlup, 513 U.S. at 329.
The actual-innocence standard isn’t deferential to the
verdict, like the legal standard for evaluating challenges to
the sufficiency of the evidence. Id. at 330 (“[T]he mere exist-
ence of sufficient evidence to convict [is not] determina-
tive … .”); see also Hayes v. Battaglia, 403 F.3d 935, 940 (7th
Cir. 2005) (Flaum, J., concurring) (“Unlike a review of the
sufficiency of the evidence which focuses on whether a
rational juror could have convicted, a habeas court consider-
ing actual innocence … determin[es] whether rational jurors
would have convicted.”).
We have one last important doctrinal point: Procedural
actual-innocence claims like this one are evaluated different-
ly than substantive claims of actual innocence. Schlup,
513 U.S. at 316–17. In a substantive actual-innocence claim,
the petitioner’s new evidence must be strong enough to
convince the court that his sentence is constitutionally
intolerable “even if his conviction was the product of a fair
14 No. 15-1174
trial.” Id. at 316. In a procedural—or “gateway”—actual-
innocence claim, the petitioner’s new evidence need only
establish sufficient doubt about his guilt to justify a conclu-
sion that his sentence is a miscarriage of justice “unless his
conviction was the product of a fair trial.” Id. Put slightly
differently, a petitioner satisfies the gateway standard if his
new evidence raises “sufficient doubt about [his] guilt to
undermine confidence in the result of the trial without the
assurance that the trial was untainted by constitutional
error.” Id. at 317.
The district judge credited Stone’s testimony and con-
cluded, based on the entire record, that the gateway actual-
innocence standard was met. We defer to the judge’s credi-
bility determination, see Coleman, 739 F.3d at 350, and agree
that the new evidence of actual innocence warrants a merits
review of Jones’s Strickland claim.
In brief, the decisive evidentiary points are these: Stone
turned himself in two days after the crime and immediately
confessed to shooting Gardner. From the beginning he has
consistently maintained that he alone shot Gardner and that
he did not plan the crime with either Carter or Jones. He
says he used his .380 pistol and fired three times. That
account matches the physical and forensic evidence; the
accounts of the prosecution’s eyewitnesses do not. His
testimony is also corroborated at least in part by some of the
eyewitnesses (e.g., Cheeks, Officer Taylor, and Calmese).
And Stone’s testimony in the district court was entirely
consistent with his testimony at his own trial.
The eyewitness testimony, moreover, was all over the
map. No two witnesses gave the same account of the shoot-
ing. Antonio and Rena Phillips gave roughly similar descrip-
No. 15-1174 15
tions, but their version of events—that Jones shot Gardner at
very close range—is directly contradicted by the physical
evidence, which showed no signs of a close-range shooting.
Gaston, a third prosecution eyewitness, said only that he
thought Jones had a gun in his coat pocket and may have
fired a shot through his coat. But he told the police on the
night of the shooting that he saw Stone emerge from the
alley and shoot Gardner, so his testimony is at best a wash.
The remaining eyewitnesses at least partially corroborate
Stone’s testimony.
In short, we agree with the district judge that the new ev-
idence, considered in light of the entire record, raises suffi-
cient doubt about Jones’s guilt to undermine confidence in
the verdict without the assurance that it was untainted by
constitutional error. Stone’s testimony, together with the
other new evidence presented at the hearing, raises reasona-
ble doubt about Jones’s guilt. Had this evidence been pre-
sented, we think it’s more likely than not that Jones would
have been acquitted.
Illinois resists this conclusion by analogizing this case to
Coleman, but the analogy is superficial at best. In Coleman, as
here, an Illinois prisoner serving a sentence for murder tried
to pass through the actual-innocence gateway to a merits
review of his procedurally defaulted Strickland claim.
739 F.3d at 347–49. That’s where the similarities end. The
new evidence in Coleman consisted largely of the testimony
of the codefendant; the district court rejected the claim
because the codefendant had serious credibility problems. Id.
at 350.We affirmed, noting that the codefendant had demon-
strated an “inability to present a consistent account of his
whereabouts on the day of the murder,” told several ver-
16 No. 15-1174
sions of his involvement in the murder, and attested to facts
that did not match the physical evidence at the scene. Id. The
codefendant was also the petitioner’s friend, which undercut
the credibility of his testimony. Id.
This case is not comparable. Here, the district judge ex-
plicitly credited Stone’s testimony, finding it consistent over
15 years and multiple tellings, and consistent with the
physical and forensic evidence. As we remarked in Coleman,
“[w]e almost never disturb this type of finding by the district
court.” Id. “[D]eterminations of witness credibility can
virtually never be clear error.” United States v. Stewart,
536 F.3d 714, 720 (7th Cir. 2008) (quotation marks omitted).
Illinois also argues that even if the new evidence casts
serious doubt on its theory that Jones was the shooter, his
actual-innocence claim must be rejected because he is guilty
under an accountability theory. This argument is new in
federal court; the prosecutor’s narrative at trial was that
Jones shot Gardner twice at close range. Criminal liability on
an accountability theory requires proof of shared criminal
intent or participation in a common criminal design. See
People v. Redmond, 793 N.E.2d 744, 755 (Ill. App. Ct. 2003). To
convict Jones of Stone’s act would have required evidence
that they shared a criminal intent or participated in a com-
mon criminal design, and that’s lacking here. At most, the
evidence places all three codefendants at the scene and
suggests that they all suspected Gardner was involved in the
robbery and beating at Stone’s apartment and were upset
about it. But the record does not support Illinois’s new
theory that Jones and Stone schemed to kill Gardner.
To the contrary, Stone has consistently maintained that
he acted alone and there was no plan to kill Gardner. The
No. 15-1174 17
judge found his testimony credible, consistent over 15 years
of retelling, and corroborated by the physical and forensic
evidence and the testimony of at least some of the eyewit-
nesses. Carter likewise testified that there was no plan to kill
Gardner. The judge rejected Illinois’s new accountability
theory as unconvincing, and we see no reason to disturb that
ruling.
B. Strickland, § 2254(d), and § 2254(a)
Moving now to the merits of the Strickland claim, our first
question is whether Jones has satisfied the demanding
requirements of § 2254(d). That requires us to decide wheth-
er the Illinois Appellate Court’s decision was “contrary to”
or “an unreasonable application of” clearly established
federal law—here the Sixth Amendment right of the accused
to effective counsel as interpreted in Strickland. The district
judge held that Jones met the requirements of § 2254(d), and
again we agree.
The familiar Strickland formula requires the petitioner to
establish that his attorney’s performance was deficient—that
is, objectively unreasonable—and the deficient performance
was prejudicial. 466 U.S. at 687–88. The first step in this
framework asks “whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range
of professionally competent assistance.” Id. at 690. The
prejudice inquiry asks whether “there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694.
At Strickland’s first step, the petitioner will often need to
overcome a “strong presumption” that “the challenged
action might be considered sound trial strategy.” Id. at 689
18 No. 15-1174
(internal quotation marks omitted). In Jones’s case the state
appellate court classified the defense attorney’s decision not
to call Stone as a mere choice of trial strategy and held that
decisions of this sort are “generally immune” from scrutiny
unless counsel “entirely fail[ed]” to subject the prosecution’s
case to “meaningful adversarial testing.” That was an unrea-
sonable application of Strickland for several reasons.
First, the Strickland presumption protects actual strategic
trial judgments. “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 rea-
sonable.” Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012).
“But the presumption applies only if the lawyer actually
exercised judgment.” Id. A court adjudicating a Strickland
claim can’t just label a decision “strategic” and thereby
immunize it from constitutional scrutiny. In Jones’s case the
state appellate court had no basis in the record to classify
counsel’s failure to call Stone as a strategic trial choice. Id.
(“[O]n the limited record before the state courts, it was
unreasonable to find summarily that trial counsel chose not
to call Jones and Taylor as a matter of strategy.”). Because
there was no postconviction hearing in state court, Dosch’s
actual reason for omitting Stone was then unknown.
As a general matter, a defense attorney’s failure to pre-
sent a material exculpatory witness of which he was aware
qualifies as deficient performance. See id. at 848–49; Toliver v.
Pollard, 688 F.3d 853, 862 (7th Cir. 2012); Goodman v. Bertrand,
467 F.3d 1022, 1029 (7th Cir. 2006); Washington v. Smith,
219 F.3d 620, 628–29 (7th Cir. 2000). There’s no doubt that
Stone’s testimony was exculpatory and highly material.
No. 15-1174 19
Without an explanation from Dosch about his reason for not
calling Stone, there was no factual foundation for the state
appellate court’s determination that he omitted Stone as a
matter of trial strategy.
Second, a defense attorney’s decisions “are not immune
from examination simply because they are deemed tactical.”
U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 249 (7th Cir.
2003). The state appellate court treated the Strickland pre-
sumption as essentially unrebuttable. That too was clearly
contrary to Strickland.
The state court’s evaluation of the prejudice question was
likewise unreasonable. The court declared that Jones had the
burden to show that “but for counsel’s shortcomings, the
outcome of the proceeding would have been different.”
People v. Jones, No. 1-05-1212, at 6–7. The court then gave two
reasons why Jones hadn’t met this standard: First, it was
“highly likely” that Stone would have invoked his Fifth
Amendment privilege not to testify; second, “several eye-
witnesses” testified that Jones shot Gardner. For these
reasons, the court held, “the outcome of the trial would not
have been different had counsel attempted to present the
testimony of codefendant Stone.” Id. at 8.
This reasoning reflects a patent misunderstanding of
Strickland’s prejudice standard. The state court asked too
much of Jones. He did not need to show that the result of the
trial would have been different but for counsel’s error; he only
needed to show a “reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694 (em-
phasis added). As we’ve noted before, “[t]his is not a mere
detail or a quibble over word-smithing.” Mosley, 689 F.3d at
20 No. 15-1174
850. It’s a substantive point, and one that both the Supreme
Court and we have made before. See Williams v. Taylor,
529 U.S. 362, 405–06 (2000); Mosley, 689 F.3d at 850. In
Mosley, for example, the Illinois Appellate Court took the
same approach to the prejudice question as it did here; we
held there that the error easily satisfied § 2254(d)’s steep
standard of review. 689 F.3d at 850. Indeed, we held in
Mosley that an Illinois appellate decision applying an identi-
cally phrased prejudice formulation was clearly contrary to
Strickland. Id. (citing Williams v. Taylor, 529 U.S. at 405–06).
The same conclusion follows here.
Finally, the state court’s reasons for its no-prejudice find-
ing were so flawed as to fall outside the bounds of reasona-
ble judicial disagreement. First, the court surmised that
Stone probably would have refused to testify. Perhaps, but
the court’s supposition was speculative; at that time there
was no basis in the record to know one way or the other.
And as the dissenting judge noted, if Stone had refused, he
would have been an unavailable witness and his testimony
from his own trial would have been admissible. People v.
Jones, No. 1-05-1212, at 9–10 (Wolfson, J., dissenting) (citing
People v. Johnson, 517 N.E.2d 1070, 1074 (Ill. 1987); MICHAEL
H. GRAHAM, CLEARY & GRAHAM’S HANDBOOK OF ILLINOIS
EVIDENCE § 804.2 (7th ed. 1999)). Second, the court noted that
“several eyewitnesses” testified that Jones shot Gardner,
“which would have diminished the effectiveness of Stone’s
prior testimony had it been admissible.” Id. at 8. Indeed, two
eyewitnesses—Antonio and Rena Phillips—testified that
Jones shot Gardner at close range, but the physical evidence
contradicted their story. A third witness—Gaston—said only
that he thought Jones had a gun in his coat pocket and may
have fired through his coat. But he also told the police on the
No. 15-1174 21
night of the shooting that he saw Stone emerge from the
alley and shoot Gardner. Against these very weak prosecu-
tion witnesses, Stone’s confession would have been power-
ful.
For all these reasons, Jones has satisfied the requirements
of § 2254(d). When a habeas petitioner successfully dis-
charges his burden under § 2254(d), it will often be the case
that his entitlement to relief naturally follows; but not “al-
ways and automatically.” Mosley, 689 F.3d at 853. “Whether
the petitioner is actually entitled to relief—whether under
§ 2254(a) he is in custody in violation of the Constitution and
or laws or treaties of the United States—is a separate ques-
tion.” Id. In this case the two inquiries overlap so significant-
ly that Jones’s entitlement to relief flows easily from our
§ 2254(d) conclusion. Still, we think it best to address the
§ 2254(a) question separately, though we can be brief.
At the evidentiary hearing, Brian Dosch, Jones’s trial
counsel, offered no objectively sound reason for his decision
not to present Stone as a witness at Jones’s trial. He conced-
ed that Jones asked him to call Stone. When he was asked
whether Stone’s testimony “would’ve been very helpful to
Cortez Jones,” he replied, “Yes” and “Oh yes” and “Yes.” He
acknowledged that he was fully aware of the content of
Stone’s testimony because he had watched the Stone/Carter
trial. He could offer only one reason for omitting Stone as a
witness: The police report describing Stone’s confession
contains some contradictory statements about whether he
actually saw Gardner with a gun. According to the report, at
one point during his confession, Stone admitted that he
might not actually have seen a gun in Gardner’s hand. But
the report also clearly states that Stone told the interrogating
22 No. 15-1174
officers that Gardner drew a gun during the argument and
aimed it at Carter.
As the district judge noted, this discrepancy in the police
report may have been important to Stone’s defense, but it
had little significance to Jones. Stone testified that he shot
Gardner to protect Carter, his half-brother, so whether he
saw Gardner with a gun was crucial to his defense. But
Stone’s reason for firing the shots was unimportant to Jones;
the key was his consistent testimony that he—and he
alone—shot Gardner. The why of his actions was largely
irrelevant, but his confession to being the sole shooter mat-
tered a great deal. The ambiguity in the police report about
whether he actually saw Gardner with a gun was not an
objectively reasonable basis to omit his testimony.
On the prejudice question, we don’t need to say much
more than we’ve already said. Because the evidence—new
and old—satisfies the actual-innocence standard, it neces-
sarily also satisfies the Strickland test for prejudice. There is a
reasonable probability that Jones would have been acquitted
had his counsel presented Stone’s testimony.
Illinois argues that the jury in the Stone/Carter trial must
have found Stone unpersuasive, so it follows that he would
not have been a persuasive witness for Jones. But the two
trials were different in important ways. First, as we’ve
already noted, the jury’s rejection of Stone’s “defense of
brother” defense has no bearing on the case against Jones. To
repeat, what’s important in Jones’s case is not Stone’s reason
for shooting Gardner but his consistent admission that he
alone shot Gardner.
No. 15-1174 23
The jury convicted Carter too, of course, but that isn’t
conclusive on the prejudice question in Jones’s case. The case
against Carter was submitted to the jury on a theory of
accountability; that is, the jury could convict Carter even if it
rejected the prosecution’s theory that both he and Stone
were armed and fired shots at Gardner. True, Carter’s
conviction means that the jury at least accepted that Carter
and Stone shared a common plan to kill Gardner and to that
extent must have found Stone unpersuasive. But the case
against Jones wasn’t tried on an accountability theory, which
in any event would have been weaker against Jones than it
was against Carter.
The prosecution maintained in both trials that Gardner
was murdered in retaliation for the robbery and beating at
the May Street apartment. The evidence against the two
men, however, was not identical for purposes of an account-
ability theory of guilt. Unlike Carter, Jones had no connec-
tion to Stone, Grant, or any other residents of the apartment.
Indeed, Jones met Stone and the others for the first time on
the day of these events. Moreover, Stone paged Carter to
summon him back to the scene after 9 p.m., and it is entirely
plausible to infer that Carter would know that his brother
owned a gun and would be armed. No evidence suggests
that Jones would have known this. With no direct evidence
of a plan (and the prosecution had none), Jones would have
been in a stronger position to argue that he was unaware
that Stone would be armed and intended to shoot Gardner.
A final point before we move on: For unknown reasons
the judge in the Stone/Carter trial excluded Stone’s state-
ment to police, which was consistent with his trial testimony
and thus would have bolstered his credibility. Though not
24 No. 15-1174
necessarily decisive, prior consistent statements usually bear
favorably on a witness’s credibility. Indeed, Stone’s con-
sistency was an important factor in the district judge’s
actual-innocence determination. We can safely assume that
Stone’s prior consistent statement would have been an
important factor in Jones’s trial too.
Second, the case against Jones was tried to the court, and
bench trials proceed on a subtly different calculus. At the
evidentiary hearing, Dosch told the district judge that he
watched Stone testify at his trial and thought he was “noth-
ing special” on the witness stand and “wasn’t a great wit-
ness.” But he immediately backpedaled on this point, saying,
“I suppose he was adequate.” It’s not clear what Dosch
meant by this testimony; he did not elaborate. But whatever
Stone’s shortcomings as a witness, it’s reasonable to think
that the judge presiding at Jones’s trial could dispassionately
account for any communication difficulties or rough edges
in evaluating the substance of his testimony. We note again
that the district judge credited Stone’s testimony in the
§ 2254 proceeding. In the end, the cost of calling Stone at the
bench trial was so small—and the benefit of having his
testimony was so great—that Dosch’s decision not to call
him was plainly prejudicial.
Jones has established that he is in custody in violation of
his Sixth Amendment right to the effective assistance of
counsel and is therefore entitled to relief under § 2254(a).
The district judge was right to grant the petition for a writ of
habeas corpus.
AFFIRMED.