Toliver, Stephen v. McCaughtry, Gary R. ( 2008 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 06-3316
    S TEPHEN T OLIVER,
    Petitioner-Appellant,
    v.
    G ARY R. M C C AUGHTRY, Warden,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 02 C 1123—Patricia J. Gorence, Magistrate Judge.
    ____________
    A RGUED S EPTEMBER 5, 2007—D ECIDED A UGUST 27, 2008
    ____________
    Before P OSNER, R IPPLE and R OVNER, Circuit Judges.
    R IPPLE, Circuit Judge. Stephen Toliver was convicted by
    a jury of first-degree intentional homicide (as a party to a
    crime), in violation of sections 940.01 and 939.05 of the
    Wisconsin Statutes. Mr. Toliver was sentenced to life in
    prison. After exhausting his state remedies, he filed in the
    district court a petition for a writ of habeas corpus. See
    28 U.S.C. § 2254. The district court denied relief, and
    Mr. Toliver timely appealed to this court.
    2                                               No. 06-3316
    For the reasons set forth in this opinion, the judgment of
    the district court is reversed, and the case is remanded for
    proceedings consistent with this opinion.
    I
    BACKGROUND
    A. The Facts and Mr. Toliver’s Criminal Trial
    Mr. Toliver’s state conviction arose out of the murder of
    Tina Rogers. In 1991, Mr. Toliver and his brother, Oliver
    Toliver, were living with Commosie Thompson, Jo-Etta
    Foster and Tina Rogers. Thompson was selling drugs out
    of the residence and discovered that $1,800 in drug pro-
    ceeds was missing. Thompson told Mr. Toliver, who had
    been serving as Thompson’s drug courier, about the
    missing money. Mr. Toliver informed Thompson that
    Rogers had taken it.
    Mr. Toliver then told his brother Oliver to “strap up”;
    both men grabbed firearms and went looking for Rogers.
    R.30, Ex. 2 at 3. Both Foster and Thompson testified that,
    from their observations that evening, they did not believe
    that Mr. Toliver or Oliver intended to harm Rogers
    upon finding her. Mr. Toliver testified that he had told
    Oliver to “strap up” because their house had been “shot
    up” several weeks after Rogers had moved into the house
    and they suspected that Rogers’ boyfriend, whom Mr.
    Toliver believed to be violent, had been involved in the
    shooting. 
    Id., Ex. 8
    at 30.
    Upon finding Rogers, Mr. Toliver and Oliver brought
    her back to the residence; upon their arrival, Thompson,
    No. 06-3316                                                    3
    Corey Henry, Darian Robinson and Foster were present.
    Once inside, Mr. Toliver began questioning and arguing
    with Rogers about the missing money; Rogers denied
    taking it. Foster testified that Oliver, who had a TEC-9
    handgun in his hand, went over to Mr. Toliver, who also
    was holding a firearm, and whispered something. Mr.
    Toliver then began yelling at Rogers.1 Mr. Toliver then
    tossed his sawed-off shotgun next to Thompson and told
    him to shoot whomever he thought had stolen the money
    (including Mr. Toliver himself); Thompson did not re-
    spond, and Mr. Toliver picked up the shotgun.
    At this point, Oliver moved aggressively toward Rogers,
    but Mr. Toliver pushed him away. Henry testified that
    Mr. Toliver had told Oliver to “chill out and sit down.” 
    Id., Ex. 5
    at 17. Mr. Toliver then asked Thompson what he
    intended to do. Thompson responded, “Whatever is
    clever.” 
    Id., Ex. 8
    at 42. Robinson testified that Mr. Toliver
    had asked Thompson whether he was sure. Thompson
    testified that Mr. Toliver then had stepped back. Oliver
    then got up and shot Rogers once in the forehead at point-
    blank range.
    What Mr. Toliver said next remained in dispute at trial.
    Thompson and Robinson each testified that they heard
    Mr. Toliver say some variation of “[k]ill that bitch, kill
    her.” 
    Id., Ex. 4
    at 36; 
    id., Ex. 6
    at 56. Foster testified that,
    1
    At this point, Foster testified that she, thinking that this
    would be a long argument, left the room to cancel a reservation
    that she just had made. Foster further testified that she did not
    reenter the room until after she heard the first gunshot.
    4                                                      No. 06-3316
    after hearing the first gunshot, she reentered the room and
    saw both Mr. Toliver and Oliver standing by Rogers, who
    was slumped on the floor bleeding profusely; Oliver had
    his gun pointed at Rogers’ head. Foster testified that she
    then heard Mr. Toliver say, “shoot the bitch.” 
    Id., Ex. 7
    at 80. Mr. Toliver, however, testified at trial that he had
    said, “you done killed the bitch.” 
    Id., Ex. 8
    at 44. After
    Mr. Toliver’s comment, Oliver again shot Rogers in the
    head.
    B. Wisconsin State Court and District Court Proceedings
    On January 30, 1992, Stephen Toliver was convicted by
    a jury in the Milwaukee County Circuit Court of first-
    degree intentional homicide (as a party to a crime), in
    violation of sections 940.01 2 and 939.05 3 of the Wisconsin
    Statutes. The court sentenced him to life imprisonment.
    After sentencing, Mr. Toliver filed a pro se appeal.
    2
    Section 940.01 states: “[W]hoever causes the death of another
    human being with intent to kill that person or another is guilty
    of a Class A felony.”
    3
    Section 939.05, in relevant part, reads:
    (1) Whoever is concerned in the commission of a crime is a
    principal and may be charged with and convicted of the
    commission of the crime although the person did not
    directly commit it and although the person who directly
    committed it has not been convicted . . . .
    (2) A person is concerned in the commission of the crime
    if the person:
    ....
    (b) Intentionally aids and abets the commission of it. . . .
    No. 06-3316                                               5
    On direct appeal to the Court of Appeals of Wisconsin,
    Mr. Toliver brought, inter alia, a sufficiency of the evi-
    dence claim. Mr. Toliver argued that the evidence
    against him was circumstantial and insufficient. The
    Wisconsin appellate court rejected this characterization
    of the evidence, explaining that
    [w]e need not belabor the facts further to determine
    that they overwhelmingly establish that Stephen
    instigated the homicide, enlisted his brother Oliver’s
    assistance, and intended to cause Rogers’ death.
    Although Oliver immediately caused Rogers’ death,
    it was Stephen who intentionally directed it and
    assisted in it.
    Stephen argues that the evidence was circumstan-
    tial. It was not. Four eyewitnesses testified to Rogers’
    bloody and merciless execution-style murder at the
    hands of the Tolivers.
    State v. Toliver, No. 93-0510, at 5 (Wis. Ct. App. May 10,
    1994) (R.19, Ex. C). The Wisconsin appellate court also
    stated: “The facts . . . overwhelmingly establish Toliver’s
    culpability, indeed his leadership, for this savage murder.
    Four eyewitnesses’ evidence, the murder weapon and
    Toliver’s shotgun, the wrappings for Rogers’ body and a
    plethora of other evidence were presented or described to
    the jury.” 
    Id. at 14.
    The court affirmed Mr. Toliver’s
    conviction.
    One judge concurred in the court’s judgment but did
    “not join in the reasoning of the majority in all respects.”
    
    Id. at 17.
    Although he did not state whether he agreed with
    the majority’s characterization of the evidence against
    6                                                 No. 06-3316
    Mr. Toliver, the concurring judge noted, “On several
    issues, I am troubled by the way in which the majority
    seems to ignore or inadequately address Toliver’s argu-
    ments.” 
    Id. After the
    Supreme Court of Wisconsin denied Mr.
    Toliver’s petition for review, he proceeded under, and
    exhausted, his Wisconsin state habeas remedies.
    Mr. Toliver then filed a habeas petition under 28 U.S.C.
    § 2254 in the United States District Court for the Eastern
    District of Wisconsin. On November 9, 1999, the district
    court granted conditionally Mr. Toliver’s petition on the
    ground that he had been deprived of his right to
    counsel during his pro se direct criminal appeal in Wis-
    consin state court. Wisconsin ex rel. Toliver v. McCaughtry,
    
    72 F. Supp. 2d 960
    , 979 (E.D. Wis. 1999). The district court
    ordered that Mr. Toliver be released or that the state
    court permit him to refile his direct appeal with the
    assistance of counsel.
    The state chose the latter course, and Mr. Toliver,
    represented by counsel, consequently returned to the
    state trial court as part of his reinstated direct appeal.4 Mr.
    Toliver contended, inter alia, that his trial counsel had
    provided ineffective assistance of counsel and that the
    prosecution had failed to disclose exculpatory evidence.
    With respect to the ineffective assistance of counsel
    claim, Mr. Toliver submitted affidavits from Angeal
    4
    Wisconsin law allows a convicted defendant to file a post-
    conviction motion in the trial court as part of his or her
    direct appeal. See Wis. Stat. § 974.02.
    No. 06-3316                                                  7
    Toliver and Harvey Toliver. The affidavits, which we
    describe in more detail below, disclosed that these two
    individuals had offered to testify on Mr. Toliver’s behalf.
    According to Mr. Toliver, the testimony offered in the
    affidavits tended to show that Oliver had acted alone
    when he shot Rogers and that Mr. Toliver did not other-
    wise intentionally aid and abet Oliver’s murder of Rog-
    ers. Mr. Toliver argued that his trial counsel was ineffective
    for failing to call Angeal Toliver to testify during his
    criminal trial and, in the case of Harvey Toliver, for failing
    to interview him.
    With respect to the exculpatory evidence claim, Mr.
    Toliver submitted an affidavit from Cornell Smith. The
    affidavit, which we also discuss in more detail below,
    disclosed the existence of a letter that Smith claims to
    have sent to Mr. Toliver’s prosecutor prior to the crim-
    inal trial. According to the affidavit, the letter that Smith
    allegedly had sent to the prosecutor disclosed statements
    that also tended to show that Oliver had acted alone
    when he shot Rogers and that Mr. Toliver had attempted
    to dissuade Oliver from killing Rogers. Mr. Toliver argued
    that Smith’s letter constituted exculpatory evidence
    that was not, but should have been, disclosed to him prior
    to trial.
    The state trial court denied Mr. Toliver’s post-conviction
    motion, and he appealed these two issues, among others,
    to the Court of Appeals of Wisconsin. The Court of Ap-
    peals of Wisconsin, as discussed in more detail below,
    affirmed Mr. Toliver’s conviction as well as the trial
    court’s denial of post-conviction relief. State v. Toliver, No.
    8                                                 No. 06-3316
    00-2460, 
    2001 WL 1084999
    (Wis. Ct. App. Sept. 18, 2001)
    [hereinafter Toliver II]. The court held that the evidence
    against Mr. Toliver was overwhelming and that, therefore,
    there was no reasonable probability of a different result
    had Mr. Toliver’s counsel called Angeal Toliver and
    Harvey Toliver to testify or had the contents of Smith’s
    letter been disclosed to Mr. Toliver’s defense counsel.
    Mr. Toliver then filed another habeas petition under 28
    U.S.C. § 2254 in the Eastern District of Wisconsin. The
    district court denied that petition on January 31, 2006. Mr.
    Toliver timely filed a notice of appeal and requested
    from the district court a certificate of appealability. On
    April 24, 2006, the district court granted Mr. Toliver’s
    request for a certificate of appealability (“COA”) on four
    of the six issues that he raised before that court. After
    studying the briefs and the record and after oral argument,
    we granted a COA on the remaining two issues. See 28
    U.S.C. § 2253(c)(2). Both the State and Mr. Toliver sub-
    sequently submitted supplemental briefs.
    II
    DISCUSSION
    A. Habeas Corpus Standards of Review
    We review de novo the district court’s denial of a habeas
    petition. Daniels v. Knight, 
    476 F.3d 426
    , 433 (7th Cir. 2007).
    Under the Antiterrorism and Effective Death Penalty Act
    (“AEDPA”), we may grant habeas relief only if the state
    court’s “decision was contrary to, or involved an unrea-
    sonable application of, Supreme Court precedent,” 
    id., or No.
    06-3316                                                9
    “resulted in a decision that was based on an unreasonable
    determination of the facts in light of the evidence pre-
    sented in the State court proceeding,” 28 U.S.C.
    § 2254(d)(2).
    To grant habeas relief under the “contrary to” clause, we
    must find that the state court reached a result opposite to
    that reached by the Supreme Court on materially indistin-
    guishable facts. See Terry Williams v. Taylor, 
    529 U.S. 362
    ,
    405 (2000); Jackson v. Miller, 
    260 F.3d 769
    , 774 (7th Cir.
    2001). To warrant relief under the “unreasonable applica-
    tion” clause, a habeas petitioner must show that the state
    court’s decision unreasonably extended a clearly estab-
    lished Supreme Court precedent to a context where it
    should not have applied or unreasonably refused to
    extend such a precedent to a context where it should
    have applied. 
    Jackson, 260 F.3d at 774
    . Furthermore, the
    state court decision must be “both incorrect and unrea-
    sonable.” Washington v. Smith, 
    219 F.3d 620
    , 628 (7th Cir.
    2000); see also Terry 
    Williams, 529 U.S. at 407-08
    . The state
    court’s factual findings are presumed correct; this pre-
    sumption can be rebutted by clear and convincing evi-
    dence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 
    537 U.S. 322
    , 348 (2003); see also Barrow v. Uchtman, 
    398 F.3d 597
    , 603 (7th Cir. 2005).
    B. Ineffective Assistance of Counsel Claim
    Mr. Toliver submits that he was deprived of his right to
    effective assistance of counsel and that, in holding other-
    wise, the Court of Appeals of Wisconsin unreasonably
    10                                              No. 06-3316
    applied Strickland v. Washington, 
    466 U.S. 668
    (1984). In
    connection with his post-conviction motion, Mr. Toliver
    submitted two affidavits—one from Angeal Toliver
    and another from Harvey Toliver—indicating that each
    affiant would have testified on Mr. Toliver’s behalf.
    We turn to the substance of those affidavits.
    1.
    Angeal Toliver’s affidavit recounts a conversation that
    she had with Mr. Toliver’s mother and Jo-Etta Foster,
    who had been present in the house during Rogers’ murder
    and testified against Mr. Toliver. Mr. Toliver’s mother
    and Angeal asked Foster what had happened on the
    evening of the Rogers murder. Foster told them that
    Mr. Toliver had nothing to do with Rogers’ murder. That
    evening, Foster explained that she was in her bedroom
    when she heard a gunshot; she then yelled Mr. Toliver’s
    name and looked out her bedroom door. At that point,
    Foster saw Mr. Toliver trying to wrestle a gun away from
    Oliver and heard Mr. Toliver exclaim, “[Y]ou shot the
    bitch, or something like that.” R.30, Ex. 11 at 1-2. Oliver
    then shot Rogers again, after which Mr. Toliver
    succeeded in wrestling the gun away from Oliver. Foster
    explained that the reason that she had not told the police
    this was because the police had threatened to charge her.
    Angeal’s affidavit concludes by stating that she had
    explained all of this to Mr. Toliver’s trial counsel and that
    he had told her that he was placing her on Mr. Toliver’s
    witness list. Angeal, however, was never called to testify.
    No. 06-3316                                              11
    Harvey Toliver’s affidavit relates a conversation that he
    had with the Toliver brothers after the Rogers murder.
    While the Toliver brothers were driving Harvey home,
    Harvey asked them why the police were questioning them
    about the Rogers murder. Mr. Toliver immediately said,
    “[B]ecause this crazy nigger, meaning [Oliver], killed her.”
    
    Id., Ex. 9
    at 1. Harvey inquired as to Oliver’s motive in
    killing Rogers. According to Harvey, Oliver said,
    “[B]ecause she was a dope feined [sic] bitch and deserved
    to die.” 
    Id. Mr. Toliver
    then became upset and responded
    by telling Oliver, “[Y]ou shouldn’t have killed her because
    it wasn’t any of our business if this woman . . . did or
    didn’t steal Commosie’s dope and money, it wasn’t [your]
    business.” 
    Id. Oliver stated
    that Rogers had made him
    angry when she laughed after Commosie asked her if she
    stole his money, “so he shot the bitch and he said he
    didn’t like her anyway.” 
    Id. Harvey’s affidavit
    continues
    to explain that Mr. Toliver told Oliver that he was not
    going to take the blame for him and that “if they got
    arrested that [Oliver] would have to take his own weight
    because he, [Mr. Toliver], will tell the police the truth
    about what happened.” 
    Id. Oliver stated
    that “he would
    accept that if it came to that and he would confess to what
    he did because he wouldn’t let his brother, [Mr. Toliver,]
    take the blame for what he had done.” 
    Id. Mr. Toliver
    then
    expressed regret at having helped Oliver move Rogers’
    body and said it was “stupid” on his part. 
    Id. Harvey’s affidavit
    then recounts how Mr. Toliver had
    called Harvey from a county jail and had explained that
    Oliver had confessed to the murder but then had claimed
    that the confession had been coerced. Mr. Toliver asked
    12                                              No. 06-3316
    Harvey if he would be willing to speak with Mr. Toliver’s
    counsel and relate the conversation that he had had with
    the Toliver brothers. Harvey’s affidavit states that he
    expressed some reluctance about taking sides between
    the two brothers, but he ultimately told Mr. Toliver that he
    would speak to Mr. Toliver’s counsel if it became neces-
    sary. Mr. Toliver told Harvey that he should expect to
    hear from his counsel soon. The affidavit explains that
    Mr. Toliver’s counsel never contacted Harvey.
    2.
    On direct review, the Court of Appeals of Wisconsin
    rejected on the merits Mr. Toliver’s ineffective assistance
    of counsel claim. The appellate court correctly identified
    the Supreme Court’s decision in Strickland as governing
    a claim of ineffective assistance of counsel. Under Strick-
    land, a defendant must prove that his lawyer “fell below
    an objective standard of reasonableness” and that there
    is a “reasonable probability that, but for counsel’s unpro-
    fessional errors, the result of the proceeding would have
    been different.” 
    Strickland, 466 U.S. at 687-88
    , 694. In this
    case, the appellate court dismissed Mr. Toliver’s Strickland
    claim on the prejudice prong, without addressing the
    deficient performance prong.
    As for Angeal’s statement, the court noted that Mr.
    Toliver argued that the statement would have impeached
    Foster’s testimony that Mr. Toliver said “shoot the bitch.”
    Toliver II, 
    2001 WL 1084999
    , at *11 ¶ 47. The court, how-
    ever, concluded that no prejudice could have resulted
    from trial counsel’s failure to call her because the state-
    No. 06-3316                                                 13
    ment’s qualifier, “or something like that,” would not have
    resolved the conflict between the two versions of Mr.
    Toliver’s statement. 
    Id. The court
    did not discuss the
    remainder of the statements contained in the affidavit.
    As to Harvey’s statement, the court similarly found
    that no prejudice resulted from the failure to interview
    or to call him. Despite noting that “Harvey Toliver’s
    testimony could have established that Oliver had his
    own reasons for shooting Rogers,” the court held that “it
    would not have reduced Stephen’s participation in the
    homicide.” 
    Id. at *12
    ¶ 48. The court concluded: “For the
    abundant reasons we have recited, Stephen took several
    direct and powerful actions that were substantial factors
    in causing Rogers’ death, regardless of the personal
    animus Oliver may have felt that led him to pull the
    trigger. Thus, any failure to call Harvey Toliver to testify
    was not prejudicial.” 
    Id. The district
    court concluded that the Wisconsin
    appellate court’s application of Strickland had not been
    unreasonable. The district court stated: “As the court of
    appeals previously explained, [Mr. Toliver] did, in fact,
    take ‘several direct and powerful actions that were sub-
    stantial factors in causing Rogers’ death’ . . . . Based on the
    foregoing, this court cannot conclude that the state
    court’s determination that [Mr. Toliver] was not prej-
    udiced by his trial counsel’s failure to call Angeal Toliver
    and Harvey Toliver is contrary to, or an unreasonable
    application of, clearly established Supreme Court prece-
    dent.” R.41 at 27 (quoting Toliver II, 
    2001 WL 1084999
    ,
    at *12 ¶ 48).
    14                                               No. 06-3316
    3.
    Mr. Toliver contends that the Court of Appeals of
    Wisconsin unreasonably applied the Strickland standard
    in rejecting his claim of ineffective assistance of counsel.
    Mr. Toliver argues that his trial counsel provided ineffec-
    tive assistance because counsel failed to call Angeal to
    testify and also failed to interview or call Harvey. Mr.
    Toliver contends that the testimony of these two wit-
    nesses would have aided significantly his defense.
    Angeal’s testimony would have contradicted Foster’s trial
    testimony that Mr. Toliver directed Oliver to shoot Rogers,
    and Harvey’s testimony would have established that
    Oliver had his own reasons for killing Rogers. Mr. Toliver
    contends that the Wisconsin court’s application of the
    Strickland test was objectively unreasonable.
    The State contends that the Wisconsin appellate court
    reasonably concluded that “Angeal Toliver’s testimony
    would have been inconsequential to Stephen Toliver’s
    trial and that Harvey Toliver’s testimony would not
    have reduced or lessened Stephen’s participation in Tina
    Rogers’ killing.” Appellee’s Br. at 38. It contends that the
    state court’s Strickland analysis was “within the range
    of defensible positions.” 
    Id. (citing Mendiola
    v. Schomig, 
    224 F.3d 589
    , 591 (7th Cir. 2000)).
    A state habeas petitioner seeking relief based on a claim
    of ineffective assistance of counsel faces a substantial
    burden. Under Strickland, a defendant must prove that
    his lawyer “fell below an objective standard of reason-
    ableness” and that there is a “reasonable probability that,
    but for counsel’s unprofessional errors, the result of the
    No. 06-3316                                               15
    proceeding would have been different.” 
    Strickland, 466 U.S. at 688
    , 694. A reasonable probability is defined as “a
    probability sufficient to undermine confidence in the
    outcome.” 
    Id. “Strickland builds
    in an element of deference
    to counsel’s choices in conducting the litigation,” we have
    explained, and section 2254(d)(1) “adds a layer of respect
    for a state court’s application of the legal standard.”
    Holman v. Gilmore, 
    126 F.3d 876
    , 881 (7th Cir. 1997). Thus,
    under AEDPA, a habeas petitioner must show that the
    state court’s application of Strickland was both incorrect
    and unreasonable—that is, “lying well outside the bound-
    aries of permissible differences of opinion.” Raygoza v.
    Hulick, 
    474 F.3d 958
    , 963 (7th Cir. 2007) (quoting Hardaway
    v. Young, 
    302 F.3d 757
    , 762 (7th Cir. 2002)).
    We turn to Mr. Toliver’s argument that his trial
    counsel fell below an objective standard of reasonable-
    ness—the first prong of the Strickland test.
    a.
    The Court of Appeals of Wisconsin did not engage in
    an analysis of the first prong of Strickland, which asks
    whether counsel fell below an objective standard of
    reasonableness. As a result, federal review of this issue “is
    not circumscribed by a state court conclusion,” and our
    review is de novo. Wiggins v. Smith, 
    539 U.S. 510
    , 534
    (2003).
    It is well established that trial counsel has a duty “to
    make reasonable investigations or to make a reasonable
    decision that makes particular investigation unnecessary.”
    16                                                No. 06-3316
    
    Strickland, 466 U.S. at 691
    ; Stanley v. Bartley, 
    465 F.3d 810
    ,
    813 (7th Cir. 2006). After conducting an investigation
    (or making a reasonable decision that investigation is
    unnecessary), counsel may make a legitimate strategic
    decision not to call a witness if he makes a determina-
    tion “that the testimony the witness[] would give might
    on balance harm rather than help the defendant.” Foster v.
    Schomig, 
    223 F.3d 626
    , 631 (7th Cir. 2000) (quoting Hall
    v. Washington, 
    106 F.3d 742
    , 749 (7th Cir. 1997)).
    At this point in the litigation, the State’s position is that
    the state courts were correct in determining that the
    second prong of the Strickland test had not been met
    because the requisite degree of prejudice had not been
    shown. Therefore, it does not address whether the perfor-
    mance of Mr. Toliver’s counsel was constitutionally
    adequate.
    Nothing in the record before us suggests how Angeal
    Toliver’s and Harvey Toliver’s testimony could have
    harmed Mr. Toliver’s defense. On this record, the only
    reason that we can discern for not calling Angeal and
    Harvey was their relationship with Mr. Toliver and the
    resulting possibility of bias. Harvey is Mr. Toliver’s cousin
    and Angeal is his wife and the mother of his children.
    Consequently, the jury might have dismissed their testi-
    mony. Nevertheless, given the nature of Mr. Toliver’s
    defense, which we discuss in more detail below, and the
    probative and corroborative testimony that Angeal and
    Harvey would have provided, these witnesses’ possible
    bias does not provide a basis for counsel’s failure to
    call them. See, e.g., United States ex rel. Hampton v. Leibach,
    No. 06-3316                                                17
    
    347 F.3d 219
    , 249-50 (7th Cir. 2003) (noting, in a case in
    which eyewitness testimony was critical, that bias “cer-
    tainly is a circumstance that a factfinder would consider
    in weighing [the witness’] credibility, but it is not so
    impeaching that one can wholly discount the import of
    their testimony and the effect that it might have had on [a]
    jury”). Even more fundamentally, counsel could not
    have made a reasonable strategic decision not to call
    Harvey without interviewing him in order to evaluate
    his proposed testimony, his credibility or his demeanor.
    See Davis v. Lambert, 
    388 F.3d 1052
    , 1063-64 (7th Cir. 2004);
    Washington v. Smith, 
    219 F.3d 620
    , 629-30 (7th Cir. 2000);
    see also 
    Strickland, 466 U.S. at 691
    . Angeal’s and Harvey’s
    testimony provided unique information, available from
    no other witnesses, that was corroborative of Mr. Toliver’s
    claim that he had not urged Oliver to kill Rogers but
    actually had attempted to dissuade him from doing so.
    Consequently, on the record as presently constituted, it
    appears that the performance of Mr. Toliver’s trial counsel
    fell below an objective standard of reasonableness. As we
    discuss later, this first prong of the Strickland test must be
    addressed more extensively by the district court on
    remand.
    b.
    In this case, the Wisconsin appellate court correctly
    identified Strickland as governing the determination of
    whether Mr. Toliver had received ineffective assistance of
    counsel. Its analysis of Strickland’s prejudice prong, how-
    ever, fell outside the bounds of objective reasonableness.
    18                                              No. 06-3316
    In regard to the prejudice that resulted from counsel’s
    failure to call Angeal and to interview and call Harvey, the
    Court of Appeals of Wisconsin failed to apprehend the
    nature of Mr. Toliver’s defense. It therefore failed to
    assess how their testimony might have enhanced the
    possibility of that defense succeeding.
    Mr. Toliver does not dispute that he and Oliver armed
    themselves prior to going out to search for Rogers, that
    he and Oliver brought her back to the house at
    Thompson’s request or that he was present when Oliver
    shot Rogers. He does maintain, however, that his role
    in the events that led to Rogers’ murder ought to be
    characterized differently. More specifically, Mr. Toliver
    submits that there is limited evidence supporting the
    conclusion that he directed or encouraged Oliver to
    shoot Rogers or otherwise intentionally aided and
    abetted in Oliver’s murder of Rogers. He points out that
    he was the one who pushed away Oliver, his brother and
    the shooter, when Oliver moved aggressively toward
    Rogers and that he told Oliver to calm down. Mr. Toliver
    also attempted, as he portrays the facts, to diffuse the
    situation by tossing his weapon to Thompson and inviting
    him to shoot anyone, even Mr. Toliver, who Thompson
    believed had taken from the stash (“shoot me or whoever
    you think stole the money,” R.30, Ex. 8 at 66). He also
    claims to have pointed out to Thompson that Rogers’ status
    as a cocaine user did not necessarily make her the thief.
    Finally, he contends that his exclamation after Oliver
    shot Rogers was not one of encouragement but of anger
    or surprise.
    No. 06-3316                                                19
    The combination of Angeal’s and Harvey’s testimony
    no doubt would have enhanced significantly the chances
    of the jury’s accepting Mr. Toliver’s characterization of
    the facts, thereby affording Mr. Toliver a reasonable
    probability of a different result at trial. See 
    Stanley, 465 F.3d at 814
    ; Goodman v. Bertrad, 
    467 F.3d 1022
    , 1029-30
    (7th Cir. 2006) (noting the importance of analyzing the
    synergistic prejudicial effect of counsel’s multiple fail-
    ings). Had Harvey testified to Oliver’s statements that he
    (Oliver) had shot Rogers because he disliked her and
    because she had made him angry when she laughed
    after Commosie had asked her if she had stolen from
    the stash, the jury would have been able to evaluate more
    accurately the dynamics of the very fluid and volatile
    situation in that house, as well as the motivations of the
    dramatis personae. Although the Wisconsin appellate
    court conceded that “Harvey Toliver’s testimony could
    have established that Oliver had his own reasons for
    shooting Rogers,” it nevertheless concluded that this
    testimony would have made no difference because Mr.
    Toliver “took several direct and powerful actions that
    were substantial factors in causing Rogers’ death, regard-
    less of the personal animus that Oliver may have felt that
    led him to pull the trigger.” Toliver II, 
    2001 WL 1084999
    ,
    at *12 ¶ 48. This brief conclusion significantly understates
    the importance, for purposes of Mr. Toliver’s defense, of
    establishing that Oliver had an intense dislike for Rogers
    and therefore his own reasons for shooting her contrary
    to the wishes of Mr. Toliver. Cf. Lesko v. Owens, 
    881 F.2d 44
    ,
    53 (3d Cir. 1989) (“It is generally recognized that evidence
    of motive may be probative of specific intent.”). Indeed, the
    20                                                  No. 06-3316
    Wisconsin appellate court’s conclusion wholly ignores
    Mr. Toliver’s defense and the weakness of the State’s
    evidence with respect to whether Mr. Toliver intentionally
    aided and abetted in Rogers’ murder.
    The Court of Appeals of Wisconsin summarily dismissed
    Angeal’s affidavit because Foster’s statement that Mr.
    Toliver exclaimed “you shot the bitch” was qualified by
    “or something like that.” Toliver II, 
    2001 WL 1084999
    , at *11
    ¶ 47. Angeal’s testimony, however, would have served to
    impeach Foster’s trial testimony, which was that Mr.
    Toliver had said “shoot the bitch.” R.30, Ex. 7 at 80. It
    would have indicated that Foster herself was uncertain
    about exactly what Mr. Toliver had exclaimed after Oliver
    shot Rogers.5 Exactly what Mr. Toliver exclaimed after
    Oliver fired the first shot is a critical point bearing on his
    intent, especially given that numerous witnesses, including
    the State’s witnesses, testified that, moments earlier, Mr.
    Toliver had pushed Oliver away and told him to calm
    down when Oliver moved aggressively toward Rogers.
    5
    Angeal’s affidavit states that Foster told her that Mr. Toliver
    “yelled at Oliver you shot the bitch, or something like that.”
    R.30, Ex. 11 at 1-2. The Wisconsin appellate court interpreted
    the affidavit to mean that Angeal, rather than Foster, added the
    qualification “or something like that.” Whether Angeal correctly
    remembered what Foster conveyed to her is a matter that the
    trier of fact nevertheless could have resolved in Mr. Toliver’s
    favor. Moreover, Foster’s statement that Mr. Toliver was
    attempting to take the gun away from Oliver would bolster
    the argument that Oliver, in fact, did exclaim “you shot the
    bitch,” in surprise or anger.
    No. 06-3316                                               21
    Two of the State’s witnesses, moreover, testified that,
    from their observations inside the house, they did not
    believe that either Mr. Toliver or Oliver intended to harm
    Rogers upon bringing her back to the house. R.30, Ex. 4
    at 46-47 (testimony of Thompson) (stating that he
    thought that Mr. Toliver and Oliver simply were going to
    scare Rogers for purposes of getting her to tell the truth
    about who had stolen from the stash); 
    id., Ex. 7
    at 102, 107-
    08 (testimony of Foster) (testifying that she expected that
    the men were going to have an argument with Rogers
    about whether she had stolen the money but that she
    did not expect Rogers to be harmed). This testimony,
    combined with Angeal’s testimony impeaching Foster’s
    testimony incriminating Mr. Toliver, suggests that Mr.
    Toliver had no intention of aiding and abetting in Rog-
    ers’ murder and might even suggest that Mr. Toliver was
    attempting to protect Rogers from Oliver.
    Furthermore, the Wisconsin appellate court ignored
    another extremely probative portion of Angeal’s affidavit:
    that Foster had seen Mr. Toliver attempting to wrestle
    the gun away from Oliver immediately after Oliver first
    shot Rogers but before Oliver shot Rogers the second
    time. This testimony is inconsistent with Foster’s testi-
    mony at trial in which she indicated that Mr. Toliver
    simply was standing near Rogers after the first shot. Had
    the jury heard that Mr. Toliver had attempted to take the
    gun away from Oliver, it might well have believed Mr.
    Toliver’s testimony that he had exclaimed “you shot the
    bitch” in surprise or anger. Indeed, the jury also might
    well have concluded that, when Oliver shot Rogers, he
    acted not only alone but against the wishes of Mr. Toliver.
    22                                              No. 06-3316
    Accordingly, we believe that the combination of Angeal’s
    and Harvey’s testimony could have created a significant
    doubt as to whether Mr. Toliver, despite his prominence
    that night, intentionally aided and abetted in the murder
    of Rogers.
    The Wisconsin courts, on direct appeal and on the re-
    instated direct appeal, consistently have characterized
    the evidence against Mr. Toliver as overwhelming. The
    evidence undoubtedly establishes that Mr. Toliver played
    some role in the events that led to Rogers’ murder. To
    convict him for first-degree intentional homicide, however,
    the state had the burden of proving that Mr. Toliver
    intentionally aided and abetted in Rogers’ murder. On
    this element, it would be difficult to characterize the
    State’s evidence as anything near “overwhelming.” Viewed
    in this light, counsel’s double failure to call Angeal to
    testify and to interview or call Harvey was prejudicial.
    Given the weakness of the State’s evidence on intent, there
    is a reasonable probability that, but for counsel’s unprofes-
    sional errors, the result of Mr. Toliver’s trial would have
    been different. See 
    Strickland, 466 U.S. at 694
    .
    We also believe that the Wisconsin appellate court’s brief
    and cursory analysis of Strickland’s prejudice prong was
    not only incorrect, but unreasonable. As we have dis-
    cussed, the Wisconsin appellate court considered Angeal’s
    and Harvey’s testimony in isolation, and it failed to
    evaluate Angeal’s and Harvey’s testimony in light of Mr.
    Toliver’s defense and the nature of the State’s case against
    him. See 
    Hampton, 347 F.3d at 256-57
    (concluding that a
    state court’s application of Strickland’s prejudice prong
    No. 06-3316                                               23
    was unreasonable because the State court had “turned a
    blind eye . . . to the nature of the State’s case”). Although
    the appellate court recognized that Harvey’s testimony
    would have affected the jury’s evaluation of Oliver’s
    motivation in shooting Rogers, the court failed to consider
    the implications of this observation within the context
    of Mr. Toliver’s defense as well as the weakness of the
    State’s evidence with respect to whether Mr. Toliver
    intentionally aided and abetted in Rogers’ murder.
    C. Brady Claim
    Mr. Toliver submits that he was deprived of his right to
    due process of law when the Wisconsin court failed to
    grant him a new trial in light of the prosecutor’s failure
    to disclose to him the Cornell Smith letter that the pros-
    ecutor allegedly had received prior to Mr. Toliver’s trial.
    In the affidavit submitted with Mr. Toliver’s post-convic-
    tion motion, Smith alleged that he had written a letter to
    Mr. Toliver’s prosecutor dated June 10, 1991. In this letter,
    Smith had asked the prosecutor to speak with another
    prosecutor in another county in support of Smith’s attempt
    to obtain favorable treatment with respect to charges then
    pending against him in that county. In return, Smith
    offered to testify in the pending proceedings against
    Mr. Toliver and to relate the substance of a telephone
    conversation in which Thompson and Henry had related
    their versions of the events that ended with the death of
    Tina Rogers.
    After summarizing the substance of Smith’s affidavit
    and the decisions of the Wisconsin appellate court and the
    district court, we shall turn to Mr. Toliver’s arguments.
    24                                               No. 06-3316
    1.
    According to Smith’s affidavit, during that telephone
    conversation, Thompson related that he had thought that
    Rogers had stolen some of his money and cocaine. Because
    of this suspicion, the affidavit continued, Mr. Toliver and
    others had tracked down Rogers and brought her back to
    the house. Once back at the house, Thompson asked Rogers
    why she had stolen from his stash. Rogers replied by
    laughing. At that point, Oliver became angry over Rogers’
    reaction to the accusation and attempted to take hostile
    action against her. Mr. Toliver, however, “pushed” him
    back and told him to “back off or chill out.” R.30, Ex. 9 at
    2. Smith’s affidavit continues by relating that Thompson
    told him that Oliver did not like Rogers because she was
    usually high on cocaine and had denied Oliver’s sexual
    advances. Henry confirmed Thompson’s statements, the
    affidavit asserts, by yelling in the background.
    Smith’s affidavit continues by recounting that, after
    describing Oliver’s burst of anger toward Rogers, Thomp-
    son further described how Mr. Toliver had told him
    that Rogers did not steal from the stash even though
    she was an addict. After these statements in defense of
    Rogers, Mr. Toliver threw his weapon to Thompson and
    told him to shoot whomever he believed had taken from
    the stash (“shoot me or whoever you think stole it,” id.). All
    of a sudden, there was a shot, not from Mr. Toliver’s
    weapon but from Oliver’s gun. Mr. Toliver then “grabbed
    at Oliver” and yelled: “You killed the bitch.” 
    Id. Thompson, along
    with others, ran from the house.
    Henry then got back on the phone, recounts the affidavit.
    Smith asked him why Mr. Toliver had been charged if
    No. 06-3316                                               25
    Oliver had done the shooting. Henry replied that the
    prosecutor wanted to prosecute both Mr. Toliver and his
    brother Oliver for the shooting and that Smith and Henry
    had been told that they would be charged with murder
    if they did not cooperate. The day after the shooting,
    Thompson had spoken with his mother who told him
    to keep quiet.
    The affidavit concluded by recounting that the prosecu-
    tor had replied to Smith’s letter; the prosecutor had stated
    that he could not help Smith with respect to his prosecu-
    tion in another county and that Smith’s information did
    not shed any new light on the pending case against
    Mr. Toliver.
    2.
    The Court of Appeals of Wisconsin acknowledged that
    the “suppression of evidence favorable to an accused
    upon request violates due process where the evidence is
    material either to guilt or to punishment, irrespective of
    the good faith or bad faith of the prosecution.” Toliver II,
    
    2001 WL 1084999
    , at *9 ¶ 38 (quoting Brady v. Maryland,
    
    373 U.S. 83
    , 87 (1963)). The appellate court also acknowl-
    edged that this duty applies to impeachment, as well as
    exculpatory, evidence. 
    Id. (citing Stickler
    v. Greene, 
    527 U.S. 263
    , 280 (1999)). Finally, the court noted that such
    evidence is material only if there is “a reasonable probabil-
    ity that, had the evidence been available to the defense, the
    result in the proceedings would have been different.” 
    Id. (quoting United
    States v. Bagley, 
    473 U.S. 667
    , 682 (1985)).
    26                                                 No. 06-3316
    The court then turned to the possible effect of the
    disclosure of this evidence on Mr. Toliver’s trial. The
    court took the view that the disclosure would not have
    affected the outcome. Notably, the court conceded that,
    assuming that the letter actually had been sent and Smith
    testified in accordance with his affidavit,6 “his statements
    conceivably could have affected the jury’s view of the
    persons Smith named, their motives for testifying, and
    Oliver’s reasons for shooting Rogers.” 
    Id. at *10
    ¶ 39.
    Nevertheless, continued the court, the testimony would not
    have influenced the jury’s view of Mr. Toliver’s involve-
    ment in the homicide. In the appellate court’s view, the
    facts overwhelmingly established Mr. Toliver’s guilt,
    “indeed his leadership, for this savage murder.” 
    Id. at *4
    ¶ 16. According to the court, Mr. Toliver was involved in
    the murder of Rogers from start to finish:
    Stephen responded to Thompson’s page. Stephen
    enlisted Oliver’s assistance. Stephen and Oliver armed
    themselves and brought Rogers back to Thompson.
    Stephen directed Thompson to shoot whomever
    Thompson believed had taken the drug money. The
    fact that Oliver, not Thompson, shot Rogers in no
    way reduces Stephen’s complicity in Oliver’s inten-
    tional act of killing her.
    6
    Although the Wisconsin appellate court noted that the State
    had denied that the prosecutor ever had received Smith’s letter,
    it did not rest its ruling on that basis. Toliver II, 
    2001 WL 1084999
    , at *8-10 ¶¶ 33-39 & n.10. Instead, the appellate
    court assumed that the letter had been received by the prosecu-
    tor and disposed of Mr. Toliver’s argument on the merits.
    No. 06-3316                                               27
    Thus, our fresh review of this case returns us to our
    earlier conclusion: Although Oliver immediately
    caused Rogers’ death, it was Stephen who intentionally
    directed it and assisted in it. Therefore, the jury could
    have had “no reasonable doubt as to the requisite
    intent” of either Stephen or his brother.
    
    Id. at *5
    ¶ 17 (internal quotation marks and citation omit-
    ted).
    After summarizing the decision of the Wisconsin ap-
    pellate court, the district court held that it could not
    “conclude that the state court’s determination that the
    suppressed evidence was not material is contrary to, or an
    unreasonable application of, clearly established Supreme
    Court precedent.” R.41 at 20. The state court had deter-
    mined that “Mr. Smith’s testimony possibly would have
    affected the jury’s views of the persons Mr. Smith named,
    their motives for testifying, and Oliver’s reasons for
    shooting Ms. Rogers,” but the court nevertheless concluded
    that the result of the proceeding would not have been
    different. 
    Id. The district
    court explained, therefore, that
    it “could not conclude that the state court’s determina-
    tion” was unreasonable. 
    Id. 3. Mr.
    Toliver contends that the Wisconsin appellate court
    unreasonably applied clearly established Supreme Court
    precedent when it determined that the information con-
    tained in Smith’s letter did not constitute material, excul-
    patory evidence. To establish a Brady violation, a
    28                                               No. 06-3316
    defendant must demonstrate that: (1) the prosecution
    suppressed evidence; (2) the evidence was favorable to the
    defense; and (3) the evidence was material to an issue
    at trial. United States v. Walton, 
    217 F.3d 443
    , 450 (7th Cir.
    2000). The materiality element of Brady does not require
    a demonstration that “disclosure of the suppressed evi-
    dence would have resulted ultimately in the defendant’s
    acquittal” but only that there is a “reasonable probability”
    of a different result. Kyles v. Whitley, 
    514 U.S. 419
    , 434
    (1995).
    There is little doubt that, had the disputed evidence
    been admitted, it would have been reasonable for the jury
    to conclude as the Court of Appeals of Wisconsin be-
    lieved that it would. With great respect, however, we
    believe that it is not reasonable to conclude that such a
    result was the only result or even the probable result that
    the jury would have reached. Again, we believe that our
    colleagues on the Court of Appeals of Wisconsin failed
    to apprehend the nature of Mr. Toliver’s defense and
    failed to assess how the evidence in question might have
    enhanced the possibility of that defense succeeding. See
    
    Kyles, 514 U.S. at 441-54
    (conducting a thorough examina-
    tion of suppressed Brady evidence, what purpose the
    evidence would have served and how it might have
    affected the jury’s view of the evidence that was intro-
    duced); see also Boss v. Pierce, 
    263 F.3d 734
    , 745 (7th Cir.
    2001) (holding that a state court unreasonably fails to
    apply Kyles, 
    514 U.S. 419
    , when it fails to “undertake a
    careful, balanced evaluation of the nature and strength
    of both the evidence the defense was prevented from
    presenting and the evidence each side presented at trial”);
    Bailey v. Rae, 
    339 F.3d 1107
    , 1118 (9th Cir. 2003).
    No. 06-3316                                              29
    As we discussed in analyzing Mr. Toliver’s ineffective
    assistance of counsel claim, Mr. Toliver does not dispute
    that he and Oliver armed themselves and brought Rogers
    back to the house at Thompson’s request; nor does he
    dispute that he was present when Oliver shot Rogers.
    He does submit, however, that his role in the events that
    led to Rogers’ murder ought to be characterized differ-
    ently. According to Mr. Toliver, there is evidence that he
    did not direct or encourage Oliver to shoot Rogers or
    otherwise intentionally aid and abet in Rogers’ murder.
    Mr. Toliver notes that many witnesses, including many
    of the State’s witnesses, testified that he was the one who
    pushed away Oliver, his brother and the shooter, when
    Oliver moved aggressively toward Rogers and that he
    told Oliver to calm down. Additionally, two of the State’s
    witnesses testified that, from their observations inside
    the house, they did not believe that either Mr. Toliver or
    Oliver intended to harm Rogers upon bringing her back to
    the house. R.30, Ex. 4 at 47 (testimony of Thompson); 
    id., Ex. 7
    at 102, 106-07 (testimony of Foster). Mr. Toliver also
    claims to have pointed out to Thompson that Rogers’ status
    as a cocaine user did not necessarily make her the thief.
    Finally, Mr. Toliver contends that his exclamation after
    Oliver shot Rogers was not one of encouragement but
    of anger or surprise.
    We believe that the disputed evidence would have
    bolstered Mr. Toliver’s defense and therefore would
    have enhanced significantly the chances of the jury’s
    accepting Mr. Toliver’s characterization of the facts. See
    
    Kyles, 514 U.S. at 434
    . Because Thompson’s account, as
    related in Smith’s affidavit, would not have squared
    30                                                No. 06-3316
    with his account at trial, the jury would have been able
    to evaluate more accurately Thompson’s recollection of,
    and the truthfulness of his testimony regarding, Mr.
    Toliver’s involvement in the Rogers murder. At trial,
    Thompson testified that, although Mr. Toliver had
    pushed Oliver away when Oliver moved aggressively
    toward Rogers, he did not tell Oliver to calm down.
    Thompson also testified that, after Oliver shot Rogers for
    the first time, Mr. Toliver had not attempted to prevent
    Oliver from shooting her again but rather he exclaimed,
    “kill that bitch, kill her.” R.30, Ex. 4 at 36. Smith, however,
    claims that Thompson had admitted that Mr. Toliver
    actually had “grabbed at” Oliver to prevent him from
    shooting Rogers again—testimony that could have been
    corroborated, had Mr. Toliver’s counsel called Angeal to
    testify 7 —and yelled, “you killed that bitch,” in surprise.
    
    Id., Ex. 9
    at 2. Additionally, during Thompson’s trial
    testimony, the jury was apprised that Thompson had not
    been charged with any drug offenses based on the state-
    ments that he had made to the police in conjunction
    with the Rogers murder. The Smith affidavit hints at the
    existence of an arrangement, whereby the prosecutor had
    promised immunity to Thompson in exchange for his
    cooperation. See Giglio v. United States, 
    405 U.S. 150
    , 154-55
    (1972) (finding a due process violation where the pros-
    ecution failed to disclose evidence of a key witness’
    “agreement as to a future prosecution” because such
    an agreement would have been relevant to the witness’
    credibility and “the jury was entitled to know of it”).
    7
    
    See supra
    part B.3.
    No. 06-3316                                              31
    The disputed evidence might well have created a reason-
    able doubt as to whether Mr. Toliver, despite his promi-
    nence that night, intentionally aided and abetted in the
    murder of Rogers or attempted to prevent it. As with its
    analysis of prejudice for purposes of Mr. Toliver’s ineffec-
    tive assistance of counsel claim, the Wisconsin appellate
    court’s analysis of the materiality of the Smith letter was
    unreasonable. The court did not “carefully assess[] what
    purposes the suppressed evidence might have served and
    how that evidence might have affected the jury’s consider-
    ation of the evidence that was introduced.” Boss v. Pierce,
    
    263 F.3d 734
    , 745 (7th Cir. 2001) (noting the importance
    of, and holding as material under Brady and Kyles, evidence
    bearing on credibility where witness testimony was crucial
    and the “evidence presented by the state was not over-
    whelming”). It merely recited, in a rote manner, the
    evidence that the State had introduced and concluded,
    based on that evidence, that the exculpatory evidence
    would not have been material. Had the evidence in the
    Smith affidavit been presented to the jury, however, it
    might well have concluded that, when Oliver shot Rogers,
    he acted not only alone but against the wishes of Mr.
    Toliver. Consequently, we believe that the disputed
    evidence may “reasonably be taken to put the whole
    case in such a different light as to undermine confidence
    in the verdict.” 
    Kyles, 514 U.S. at 435
    .
    Conclusion
    The Wisconsin appellate court’s determination that the
    evidence contained in the affidavits of Harvey Toliver
    32                                              No. 06-3316
    and Angeal Toliver had not prejudiced Mr. Toliver’s
    defense was an unreasonable application of clearly estab-
    lished Supreme Court precedent. Additionally, the evi-
    dence contained in the Smith letter, if it actually was
    received by the prosecutor, constitutes material, exculpa-
    tory evidence that the State was required to disclose to
    Mr. Toliver’s defense. The district court therefore com-
    mitted error in denying the writ on the ground that
    these determinations by the state court were reasonable.
    The state courts never resolved, under the first prong of
    the Strickland analysis, whether Mr. Toliver’s counsel was
    ineffective in not interviewing Harvey and in not calling
    Angeal. Therefore, issues of fact concerning counsel’s
    competence were never resolved. Similarly, the state courts
    never resolved whether the prosecutor had received the
    letter allegedly sent by Smith. On remand, the district
    court should resolve these issues. On the basis of its
    findings, the court then should determine whether the
    writ ought to be granted.
    Accordingly, the judgment of the district court is re-
    versed, and the case is remanded to the district court for
    proceedings consistent with this opinion.
    R EVERSED and R EMANDED
    8-27-08