Eric Blackmon v. Tarry Williams

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3059
ERIC BLACKMON,
Petitioner-Appellant,
v.
TARRY WILLIAMS,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 2358 — Ronald A. Guzmán, Judge.
____________________
ARGUED OCTOBER 2, 2015 — DECIDED MAY 24, 2016
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal from the denial of a
habeas corpus petition presents a thicket of procedural and
substantive issues arising from a murder on the streets of Chi-
cago. On the Fourth of July in 2002, Tony Cox was standing
outside a restaurant when he was gunned down by two men.
The gunmen fled, but two women driving cars near the scene
saw the murder and the shooters’ faces. Not quite two months
2 No. 14-3059
later, both women independently chose petitioner Eric Black-
mon’s photograph out of arrays, identifying him as the second
shooter. They repeated those identifications at a live line-up
and then again at trial. Primarily on the strength of their tes-
timony, Blackmon was convicted of first-degree murder and
sentenced to sixty years in prison.
Blackmon petitioned the state courts for post-conviction
relief, arguing that his attorney was constitutionally ineffec-
tive because he failed to present certain eyewitness and alibi
testimony, and in the alternative, that he was actually inno-
cent. The state courts summarily denied relief. Blackmon then
sought relief in federal court under 28 U.S.C. § 2254. The dis-
trict court denied Blackmon’s petition.
The record before us supports the conclusion that Black-
mon’s trial counsel was constitutionally ineffective by failing
to investigate the alibi witnesses and shows that the state
court’s summary dismissal of the claim was unreasonable. But
a “state court’s mistake in summarily rejecting a petition, i.e.,
without fully evaluating conflicting evidence on disputed fac-
tual issues, does not necessarily mean the petitioner is ulti-
mately entitled to relief.” Mosley v. Atchison, 689 F.3d 838, 842
(7th Cir. 2012). Because of that summary dismissal, the alibi
witnesses have not yet been tested in any sort of adversary
proceeding, and the record contains no evidence from Black-
mon’s trial counsel as to what he did or did not do. Accord-
ingly, we vacate the denial of the habeas petition and remand
to the district court to assess whether Blackmon “is actually
‘in custody in violation of the Constitution or laws or treaties
of the United States.’” Id., quoting 28 U.S.C. § 2254(a).
No. 14-3059 3
I. Background
A. The Murder of Tony Cox
At about 4:30 p.m. on July 4, 2002, Tony Cox was shot and
killed in front of a restaurant called Fat Albert’s located at 1143
South Pulaski Road in Chicago. Though the various accounts
of the shooting differ in some ways, the basic outline is rela-
tively consistent, with one exception discussed below.
At the time of the shooting, Cox and Richard Arrigo, the
owner of Fat Albert’s, were outside the restaurant with two
other men. The first assailant shot Cox at least twice, and Cox
fell to the ground. The second assailant then shot Cox twice
more, and both men fled. The State’s theory is that Blackmon
was the second shooter. Cox died from four bullet wounds to
the head, each of which would have been fatal alone. The
medical examiner recovered two bullets from Cox’s body, and
a forensic scientist with the Illinois State Police later testified
that those bullets had come from two different guns.
Frencshun Reece and Lisa McDowell, the witnesses who
would later form the core of the State’s case, saw Cox’s murder
from their respective vehicles. Reece was stopped at a red
light when she saw the first assailant shoot Cox twice. Ac-
cording to Reece, both assailants began to flee, but the second
assailant turned back and shot Cox in the head again before
running away. Reece pulled over and called the police, al-
though Arrigo urged her to hang up and claimed he had al-
ready called. Reece remained at the scene to speak with po-
lice. Later that day, she viewed a photographic array and se-
lected three pictures that “resembled” one or both of the as-
sailants, though she made no definitive identification that
day. Blackmon was not part of this first photo array.
4 No. 14-3059
McDowell was driving south when she stopped at a red
light, about two car-lengths back from the intersection. She
did not see the first two gunshots, but she looked over after
hearing them and saw Cox lying on the ground, with Arrigo
standing nearby. She then saw the two assailants approach
Cox. One of them shot him twice more, and both men fled.
McDowell also called 911 but did not remain at the scene, and
she did not view photographs of possible suspects that day.
Arrigo, too, witnessed the crime. According to his account,
he was locking the doors of his restaurant when he heard two
gunshots. He turned and saw the second assailant shoot Cox
twice and flee with the first. Like Reece, Arrigo remained at
the scene and spoke to police, but he told them he had not
recognized the shooters and could not identify them.
B. The Investigation
A few days into the investigation, a possible explanation
for the shooting began to emerge. George Davis, also known
as “Booney Black,” was the founder of the New Breed gang,
of which Cox was a member. According to an “Investigation
Time-Line” produced during discovery, police received a tip
indicating that Davis had lent Cox money to start a drug cor-
ner but had ordered him killed when things went badly. There
was also evidence suggesting that Arrigo, who was Davis’s
friend, helped arrange the murder. The investigators found a
message from Arrigo on Cox’s voicemail instructing Cox to
meet him at the restaurant. Arrigo confirmed it was his voice
on the recording but claimed not to remember leaving the
message, and he denied arranging the murder. Cell phone
records also showed that Arrigo had called Davis immedi-
ately after the shooting.
No. 14-3059 5
Police also received information that two individuals nick-
named “Pride” and “Keno” may have killed Cox. “Keno” was
the nickname of Michael Davis, the nephew of George Davis;
“Pride” was the nickname of a man named Eric Bridges, who,
like Cox, was a member of the New Breed gang.
At some point, the police began to focus on Eric Blackmon
instead, though the record does not show how he became a
suspect. The “Investigation Time-Line” mentions “Pride” and
“Keno” but does not even mention Blackmon (whose nick-
name is or was “Forty”). The rest of the record provides little
additional insight. A detective testified during grand jury pro-
ceedings that Blackmon and Cox were “members of the same
street gang,” but the State’s counsel conceded at oral argu-
ment that no trial evidence supports this assertion. There was
also testimony at trial that “family members” had verified
Blackmon was “involved” in the murder, but the detective did
not explain further and the “Investigation Time-Line” does
not mention them.
Regardless, Blackmon did come under suspicion, and his
picture was placed in a photo array that Reece, McDowell,
and Arrigo all viewed in late August or early September,
about two months after the shooting. Arrigo did not identify
anyone from the photo array as one of the shooters. Reece and
McDowell, however, both selected Blackmon’s photograph. A
live line-up yielded the same results: Arrigo did not identify
anyone, while both Reece and McDowell chose Blackmon,
who was arrested and charged with Cox’s murder.
C. Blackmon’s Trial
At a bench trial in September 2004, the State presented the
testimony of McDowell and Reece to prove that Blackmon
6 No. 14-3059
was the second shooter on July 4, 2002. McDowell testified
that she was stopped in traffic on South Pulaski Road when
she heard a gunshot. When she looked to her left, she saw “an
Italian guy”—that is, Arrigo—and then watched as two men
came around a building. One of the men, she testified, stood
over a body lying on the sidewalk and then fired two more
shots at the victim. She described that shooter as a black male,
a “tall guy, maybe about six feet, slender build.” She testified
that she saw the gunman’s face and identified Blackmon in
court as the man she saw. McDowell said she had seen the
shooter from about fifteen to sixteen feet away, and that after
firing, both the shooter and the other man had run across Pu-
laski Road.
On cross-examination, Blackmon’s counsel tried to under-
mine the reliability of McDowell’s identification. For example,
he elicited testimony that she had seen the shooter’s face
straight-on for only about five seconds. McDowell also testi-
fied that as she watched the shooter running away, she had
only a view of his profile in her car’s rearview mirror from
about forty-five feet away. Counsel also emphasized that
McDowell had not viewed the photo array until weeks after
the incident, and he sought to draw out discrepancies in her
testimony as compared to her previous statements. Neverthe-
less, McDowell did not waver on her identification.
Reece testified that she was stopped at a red light on Pu-
laski Road when she noticed a group of four men, three black
and one white, gathered outside Fat Albert’s. She said that she
had heard a noise she initially believed to be firecrackers.
Then, she said, she saw one of the black men pull out a gun
and shoot toward Cox’s head. Cox went down on his hands
and knees, and when he tried to rise, the first man shot him
No. 14-3059 7
again “in his neck.” Reece testified that both assailants then
“took off running,” but the second assailant returned, “came
very close” to the victim, “pointed the gun directly into his
eye,” and shot him. The second assailant then looked up at
Arrigo, “shook his head,” and fled. Like McDowell, Reece
identified Blackmon in court as the second shooter.
Reece testified that she pulled over, called the police, and
waited at the scene until they arrived. Several hours later, she
went to the police station and viewed a photo array (the one
without Blackmon’s picture). She testified that she did not “re-
ally” identify anyone then but admitted saying some of the
photos “looked familiar.” According to the officer who ad-
ministered the photo array, Reece also selected a third picture
depicting a subject who had a hairstyle similar to one of the
shooters. Near the end of August, Reece viewed another
photo array, this time with Blackmon’s picture included. She
testified that she had identified Blackmon as the second
shooter from July 4 after viewing the second array based on
the “bone protrusion” she could see through his shirt. On
cross-examination, she elaborated that she had also identified
Blackmon because he had “braids in his hair” and because he
“looked like Michael Jackson.”
As he had with McDowell, Blackmon’s attorney attempted
to discredit Reece’s identification. Reece said that she had seen
the shooting from about 130 feet away (though she testified
that at some point she began driving, getting “so close that I
can hit them with my car”) and had seen the second shooter’s
face close up for only three seconds. The attorney also pointed
out that the men in the photos Reece had selected on July 4
did not look like Blackmon, although Reece maintained that
she had chosen two photos that both resembled the first
8 No. 14-3059
shooter, not the second. Blackmon’s attorney also attacked
Reece’s identification by cross-examining Detective Gregory
Jones, who administered the July 4 photo array. Jones testified
that Reece had never said the second shooter looked like Mi-
chael Jackson, nor had she pointed out his bone structure. He
also testified that Reece had not chosen two photographs that
resembled the first shooter, as she claimed, but had in fact
chosen two photographs “that resembled two of the individ-
ual offenders”—helpful to Blackmon because Reece conceded
that neither subject resembled Blackmon.
Blackmon’s defense consisted of both alibi testimony and
competing eyewitness testimony. To support his alibi, he of-
fered testimony from two witnesses, Tomeka Wash and
Selena Leavy. Wash testified that on July 4, 2002, she had
hosted a barbecue in the lot across the street from her home.
At about 1:00 p.m., she had seen Blackmon at the barbecue
firing up the grill, and by 2:00 p.m., between twenty and forty
people had arrived at the picnic, with guests coming and go-
ing throughout the afternoon. About half an hour before the
murder took place, Wash said, Blackmon was still at the picnic
playing chess and barbecuing. She said that she stayed until
10:00 p.m. that night and never saw Blackmon leave. Accord-
ing to Wash, she was close to Blackmon throughout the picnic
and could see him “all the time.”
Leavy testified that she attended the same barbecue, arriv-
ing about 2:45 or 3:00 p.m. When she arrived, she saw Black-
mon at the barbecue cooking and she said that at approxi-
mately 4:00 p.m., Blackmon had fixed her a plate of food. She
also said that between 3:00 and 4:00 or 4:30 p.m., Blackmon
was at the picnic playing dominos or chess with his friends
and that he never left the barbecue at any time between her
No. 14-3059 9
arrival and her departure around 8:00 p.m. Finally, she testi-
fied that Blackmon’s car did not leave the barbecue, either: the
attendees had been using its radio for music and so presum-
ably would have noticed if someone had driven it away.
On cross-examination, the prosecution brought out that
Wash had two felony convictions and that Leavy was Black-
mon’s cousin. The prosecution also emphasized that two
years had passed since the barbecue; that Wash and Leavy
claimed, somewhat improbably, to have kept Blackmon con-
tinuously in their sight for hours; and that guests had been
coming and going throughout the picnic, presumably making
it less likely that either woman could have kept track of a sin-
gle guest without interruption.
In addition to the two alibi witnesses from the barbecue,
the defense presented testimony from a competing eyewit-
ness to the murder, Terrance Boyd. He testified that on July 4,
2002, he and Cox planned to go drinking together. When he
arrived on Pulaski, he saw Cox standing in the street and
spoke with him. Boyd said that another man named “Booney”
was also present, as was Eric Bridges. According to Boyd, Cox
said he needed to talk to Eric, so Boyd walked away and
turned the corner into an alley. He then heard gunshots and
peered around the corner, where he saw Bridges shooting
Cox. Boyd testified that he “trotted away,” fearing for his own
safety, but returned once Bridges left the scene. He repeated
that “Booney” had been present but initially did not remem-
ber seeing anyone else there. Later, Boyd said there may have
been another “black person” present “at the curb, maybe com-
ing from across the street,” but that he did not know who it
was. He never mentioned Arrigo.
10 No. 14-3059
On cross-examination, Boyd acknowledged his multiple
prior convictions, including one for perjury. He admitted that
he first came forward with his account of the shooting two
years after the fact when he was seeking to “work a deal” with
the U.S. Attorney in a federal case. The prosecution also em-
phasized the flaws in Boyd’s story. For example, Boyd testi-
fied he and Cox had been friends for ten years, but Boyd never
checked on Cox after the shooting. Boyd also said that
“Booney” ran away during the shooting, but the prosecution
introduced testimony that George Davis had an “apparent
disability with his left leg” and that he had “a hard time walk-
ing.” Further, Boyd testified that he had seen only Eric
Bridges shoot Cox, but the other eyewitnesses described two
shooters, and ballistics evidence showed that two different
weapons were used.
The judge found Blackmon guilty of murder. He summa-
rized the testimony and evidence before making explicit cred-
ibility determinations about the witnesses. He found McDow-
ell and Reece credible and persuasive because they expressed
confidence in their identifications, withstood extensive cross-
examination, and told consistent stories despite having had
no contact with one another. The judge rejected Boyd’s alter-
native version of the shooting, finding that his testimony had
“less than zero credibility.”
The judge also rejected Blackmon’s alibi, finding Wash’s
and Leavy’s stories to be highly unrealistic. He also noted that
Wash’s credibility was undermined by her felony convictions,
her testimony that she hosted the barbecue but knew only
“the defendant and two other people,” and the fact that Leavy
claimed to have spoken to Wash at the barbecue but Wash did
not remember her being present. The judge also pointed out
No. 14-3059 11
that Leavy’s family ties to Blackmon were revealed only on
cross-examination, calling that fact “interesting.” Based on his
assessment of the evidence, the judge found Blackmon guilty
of first-degree murder. He sentenced Blackmon to sixty years
in prison. The conviction and sentence were affirmed on di-
rect appeal.
D. Collateral Proceedings
1. State Post-Conviction Proceedings and the Discovery of
New Witnesses
Blackmon then petitioned for state post-conviction relief.
He claimed his trial counsel provided ineffective assistance
by: (1) failing to investigate and call additional alibi witnesses
from the barbecue; and (2) failing to call Arrigo as a trial wit-
ness. The state court summarily dismissed the petition, hold-
ing that the alibi witnesses’ testimony would have been cu-
mulative, and that whether to call a witness like Arrigo was a
matter of trial strategy.
The Illinois Appellate Court affirmed. First, it found that
Blackmon’s evidence did not demonstrate actual innocence,
which in Illinois means total vindication or exoneration of the
defendant. People v. Williams, 914 N.E.2d 641, 651 (Ill. App.
2009). The court also agreed with the trial court that the alibi
witnesses’ testimony would have been cumulative and held
that neither that testimony nor Arrigo’s testimony was newly
discovered, as required to state an actual innocence claim. See
People v. Ortiz, 919 N.E.2d 941, 950 (Ill. 2009). Finally, the ap-
pellate court agreed with the trial court on the merits of the
ineffective-assistance claims. It held that decisions regarding
which witnesses to call are usually strategic and saw “no rea-
son to set aside the usual deference to counsel’s trial strategy
12 No. 14-3059
under such circumstances … .” The court did not separately
address the failure to investigate those witnesses. The Su-
preme Court of Illinois denied Blackmon’s petition for leave
to appeal.
Blackmon later discovered additional witnesses helpful to
his case: Latonya Thomas and Lajuan Webb, who were both
employees of a barber shop adjacent to the crime scene. Both
were working the day of the shooting and signed affidavits
with their observations of that day.
Thomas swore that on July 4, 2002, she was working when
her attention was drawn to the street outside by what she be-
lieved to be fireworks. As she looked through the window,
she saw the victim fall to the ground, and a man stepped into
her line of sight and shot the victim as he tried to rise. At that
point, Thomas crouched beside a chair but could still see what
was going on outside. She said that she saw a second man
whom she knew as “Pee” approach the victim and shoot him
“several more times.” Both men then fled north. Thomas
acknowledged that she had not previously spoken to the po-
lice but said she had feared for her safety. She was adamant
that she could identify the shooters because she had “seen
them both hanging out on the street around the salon count-
less times.” She testified that neither man was Blackmon,
whom she has never met.
Webb swore that on July 4, 2002, he was also working
when he heard five or six gunshots outside. He then saw two
black men with guns run past the shop. Webb, too, said he
had seen both gunmen in the neighborhood before the shoot-
ing and that neither one was Blackmon. Webb said he gave his
name to a police officer who came to investigate the shooting,
but no one ever contacted him for questioning.
No. 14-3059 13
Based on these exculpatory affidavits, Blackmon sought
leave to file a successive post-conviction petition in state
court, arguing that Webb’s and Thomas’s testimony sup-
ported his actual innocence claim. He also re-asserted his
claim that his counsel was ineffective for failing to call Arrigo
at trial. The state trial court denied his request, and Blackmon
appealed.
The Illinois Appellate Court affirmed again. People v. Black-
mon, No. 1-11-1908, 2013 WL 2145922 (Ill. App. May 14, 2013).
It noted that Illinois law ordinarily contemplates only one
post-conviction proceeding, but a showing of either cause and
prejudice or actual innocence could overcome that bar. Id. at
*5. “Where defendant seeks to relax the bar against successive
post-conviction petitions on the basis of actual innocence,
leave of court should be denied only where it is clear from a
review of the successive petition and supporting documenta-
tion that, as a matter of law, defendant cannot set forth a col-
orable claim of actual innocence.” Id., citing People v. Edwards,
969 N.E.2d 829, 836 (Ill. 2012). To establish a claim of actual
innocence under Illinois law, a defendant must present evi-
dence that is newly discovered, material, and not merely cu-
mulative, and of such conclusive character that it would prob-
ably change the result on retrial. Id. The court concluded that
the affidavits of Webb and Thomas could have been obtained
long ago, stating that “any reasonable investigation would
have included inquiries as to who was working at the salon at
the time of the shooting” and that there “was no apparent ob-
stacle to obtaining this information.” Id. at *6.
The court also held that Blackmon had not raised “the
probability that it is more likely than not that no reasonable
14 No. 14-3059
juror would have convicted defendant in light of the new ev-
idence,” concluding he had not set forth a colorable actual in-
nocence claim. Id. at *7. The court focused on the following
facts: (1) both Webb and Thomas waited nearly eight years to
disclose their observations of the shooting; (2) Thomas
viewed the incident while crouched behind a chair; (3)
Thomas merely contradicted the credible testimony of
McDowell and Reece; and (4) Webb did not even see the
shooting take place. Id. at *6–7. Finally, the court rejected on
res judicata grounds the claim that counsel should have called
Arrigo to testify. Id. at *7. The Supreme Court of Illinois de-
nied Blackmon’s petition for leave to appeal.
2. Federal Habeas Corpus Proceedings
While the state courts were still considering Blackmon’s
request to file a successive post-conviction petition, Blackmon
filed a petition for a writ of habeas corpus in federal court. He
asserted three distinct grounds for relief. Two were theories
of ineffective assistance of counsel based on the failure to pre-
sent Arrigo’s testimony and the failure to investigate and call
additional alibi witnesses. The third was a claim of actual in-
nocence based on newly discovered evidence—that is, the
Webb and Thomas affidavits.
The federal court held his petition in abeyance pending
resolution of the state post-conviction proceedings. The peti-
tion was briefed after the state court proceedings ended, with
Blackmon filing a supplemental memorandum that expanded
on his earlier-asserted claims. The memorandum also sug-
gested for the first time that his claim of actual innocence was
meant not as a stand-alone ground for relief but as a “gateway
claim” to an otherwise-defaulted theory of ineffective assis-
tance of counsel and a violation of Brady v. Maryland, 373 U.S.
No. 14-3059 15
83 (1963). 1 Turning to the merits of those defaulted claims,
Blackmon argued that his trial counsel was constitutionally
ineffective by failing to conduct an adequate investigation of
businesses near the crime scene, which would have led him to
the exculpatory testimony of Webb and Thomas.
When the State filed its response to Blackmon’s § 2254 pe-
tition, it ignored the memorandum and Blackmon’s new char-
acterization of the actual innocence claim as a “gateway” to
an ineffective-assistance claim. Instead, it responded to the
original § 2254 petition, limiting its analysis of Webb’s and
Thomas’s testimony to the observation that federal habeas
corpus law has not recognized freestanding claims of actual
innocence.
The district court denied relief, concluding that the state
court had not unreasonably applied the principles of Strick-
land v. Washington, 466 U.S. 668 (1984). United States ex rel.
Blackmon v. Hardy, No. 11 C 2358, 2014 WL 3511497, at *2–3
(N.D. Ill. July 16, 2014). The district court also upheld the state
court’s rejection of the actual innocence claim, finding the
analysis of the Thomas and Webb affidavits was reasonable.
Id. at *4. We granted a certificate of appealability as to whether
Blackmon’s trial counsel “was ineffective for failing to call an
occurrence witness and numerous alibi witnesses.” We also
instructed the parties to address whether Blackmon had de-
faulted any of his ineffective-assistance theories; whether he
had demonstrated actual innocence excusing default; and
1
The purported Brady violation was based on the failure of the police
to provide Blackmon with Webb’s contact information; Blackmon has not
pursued that claim in this appeal.
16 No. 14-3059
whether 28 U.S.C. § 2254(d) applies to state court findings re-
garding actual innocence.
II. Analysis
We review de novo the district court’s decision denying ha-
beas relief. Stitts v. Wilson, 713 F.3d 887, 891 (7th Cir. 2013).
Blackmon is in state custody, so we review his claims under
28 U.S.C. § 2254, as amended by the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (“AEDPA”). Under § 2254(d),
federal courts may not grant relief on any claim adjudicated
on the merits by a state court unless the adjudication “re-
sulted in a decision that was contrary to, or involved an un-
reasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or
“resulted in a decision that was based on an unreasonable de-
termination of the facts in light of the evidence presented in
the State court proceeding.”
Blackmon relies on the “unreasonable application” prong
of § 2254(d)(1). Under this provision, a federal court may
grant habeas relief if the state court correctly identified the
governing legal principle from the Supreme Court’s case law
but unreasonably applied it to the facts of the petitioner’s case.
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citations omitted).
This is a high standard: to grant relief, the state court’s deci-
sion must be objectively unreasonable, not merely incorrect.
Id. at 520–21 (citations omitted); Badelle v. Correll, 452 F.3d 648,
654–55 (7th Cir. 2006). The Supreme Court has warned that
“even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Harrington v. Richter,
562 U.S. 86, 102 (2011); see, e.g., White v. Wheeler, 136 S. Ct. 456
No. 14-3059 17
(2015) (per curiam) (summarily reversing grant of habeas cor-
pus relief for failure to extend sufficient AEDPA deference to
state court’s determination).
This appeal also presents questions of procedural default,
which we review de novo. Richardson v. Lemke, 745 F.3d 258, 269
(7th Cir. 2014). A state prisoner must give the state an oppor-
tunity to correct alleged violations of federal rights by fairly
presenting his claim through a full round of state court re-
view. O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999). The
failure to do so results in procedural default. Id. at 848. Fed-
eral courts will not review a procedurally defaulted claim un-
less the petitioner can demonstrate cause for and prejudice
stemming from that default, or, alternatively, that the denial
of relief will result in a miscarriage of justice. Lewis v. Sternes,
390 F.3d 1019, 1026 (7th Cir. 2004) (citations omitted). The
miscarriage of justice exception “applies only in the rare case
where the petitioner can prove that he is actually innocent of
the crime of which he has been convicted.” McDowell v. Lemke,
737 F.3d 476, 483 (7th Cir. 2013). To meet that standard, he
must demonstrate, based on new, reliable evidence, that “‘ in
light of new evidence, it is more likely than not that no rea-
sonable juror would find him guilty beyond a reasonable
doubt. ’” Coleman v. Hardy, 628 F.3d 314, 319 (7th Cir. 2010),
quoting House v. Bell, 547 U.S. 518, 537 (2006).
Procedural default is not jurisdictional. Trest v. Cain, 522
U.S. 87, 89 (1997); see Canaan v. McBride, 395 F.3d 376, 382 (7th
Cir. 2005). Rather, it is “an affirmative defense that the State is
obligated to raise and preserve, and consequently one that it
can waive.” Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir. 2004)
18 No. 14-3059
“As with any other right or defense, the State will waive pro-
cedural default by intentionally relinquishing its right to as-
sert that defense,” either explicitly or implicitly. Id.
A. Procedural Default of Claims Based on Webb’s and
Thomas’s Testimony
Blackmon argues that his trial counsel’s failure to locate
and investigate Webb and Thomas, who worked in the barber
shop, was one of several errors amounting to ineffective assis-
tance. The State responds that Blackmon procedurally de-
faulted this claim by failing to raise it through one complete
round of state court review. Blackmon contends in turn that
the State implicitly waived its right to assert procedural de-
fault by failing to raise it in the response to his § 2254 petition
filed in the district court.
Working our way backwards through these contentions,
we first reject the argument that the State implicitly waived or
forfeited the procedural default defense. Blackmon did not
raise the failure to discover Webb and Thomas as a basis for
his ineffective-assistance claim in the district court until he
filed his supplemental memorandum, and the district court
never ordered the State to respond to it. Under these unusual
procedural circumstances, the State did not show “the intent
to relinquish the defense that is the essence of true waiver.”
Perruquet, 390 F.3d at 517 (finding no waiver where state had
at most remained silent on procedural default issue). Nor
would it be fair to hold the State to forfeiture where Blackmon
introduced the claim so late.
Next, Blackmon procedurally defaulted this basis for his
ineffective-assistance claim. To preserve a claim for federal
No. 14-3059 19
habeas review, a state prisoner must fairly present the opera-
tive facts and legal principles controlling the claim through a
full round of state court review. Mulero v. Thompson, 668 F.3d
529, 536 (7th Cir. 2012), quoting Smith v. McKee, 598 F.3d 374,
382 (7th Cir. 2010). This rule requires that the factual and legal
substance of the claim remain essentially the same when the
petitioner has exhausted his state court remedies and moved
on to federal court. Anderson v. Benik, 471 F.3d 811, 814–15 (7th
Cir. 2006). With ineffective-assistance claims, we have held
that a petitioner procedurally defaults individual claimed de-
ficiencies when he does not fairly present them to the state
courts, even if he presented an ineffective-assistance claim
based on other alleged errors. See Mulero, 668 F.3d at 536.
Blackmon presented an ineffective-assistance claim
through one full round of state-court review, but it was based
on the other matters we discuss below. His second post-con-
viction petition included a claim based on the Webb and
Thomas affidavits, but he framed that as a freestanding ac-
tual-innocence claim, not an ineffective-assistance claim.
Thus, neither the legal nor the factual substance of the claim
he now seeks to assert was before the state courts, meaning he
has procedurally defaulted that claim.
We might nevertheless address the merits of Blackmon’s
claim if he could show cause and prejudice or a miscarriage
of justice—that is, “the conviction of an innocent person.”
Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005). He relies on
the latter, arguing that the affidavits of Webb and Thomas
constitute “new reliable evidence,” Schlup v. Delo, 513 U.S.
298, 324 (1995), and that in light of that new evidence, it is
20 No. 14-3059
“more likely than not that no reasonable juror would have
convicted him,” id. at 327. 2
As noted above, Schlup requires Blackmon to show that
“more likely than not, in light of the new evidence, no reason-
able juror would find him guilty beyond a reasonable doubt—
or, to remove the double negative, that more likely than not
any reasonable juror would have reasonable doubt.” House v.
Bell, 547 U.S. 518, 538 (2006). The Schlup standard “is demand-
ing and permits review only in the ‘extraordinary’ case.” Id.,
quoting Schlup, 513 U.S. at 327; see also McQuiggin v. Perkins,
133 S. Ct. 1924, 1936 (2013) (“We stress once again that the
Schlup standard is demanding.”); Gladney v. Pollard, 799 F.3d
889, 896 (7th Cir. 2015) (“The actual innocence gateway is nar-
row.”). Our function “is not to make an independent factual
determination about what likely occurred, but rather to assess
the likely impact of the evidence on reasonable jurors.” House,
547 U.S. at 538, citing Schlup, 513 U.S. at 329. In applying this
standard, we must consider all the evidence, both old and
2 In assessing whether Blackmon satisfied the Schlup standard, the dis-
trict court appears to have extended § 2254(d) deference to the state court’s
resolution of Blackmon’s actual-innocence claim. We asked the parties to
address whether 28 U.S.C. § 2254(d) applies to state court findings regard-
ing a claim of actual innocence. They agree that under these circumstances
it does not. In fact, the State relies on Sharpe v. Bell, 593 F.3d 372, 378 (4th
Cir. 2010), which states that § 2254(d) “has no application in the context of
a Schlup claim because it pertains only to a ‘claim that was adjudicated’ in
state court.” State courts simply have no occasion to adjudicate Schlup
claims as such because those claims address only federal procedural ob-
stacles to relief. In light of the parties’ agreement, we assume for the pre-
sent appeal that no § 2254(d) deference is due to the state court’s resolution
of Blackmon’s actual innocence claim and review de novo the district
court’s decision as to whether no reasonable juror would convict given all
the evidence. Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014).
No. 14-3059 21
new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted at trial. Id., citing
Schlup, 513 U.S. at 327–28. We then make a “probabilistic de-
termination about what reasonable, properly instructed ju-
rors would do.” Id., quoting Schlup, 513 U.S. at 329.
The new evidence from Webb and Thomas does not meet
this demanding standard for actual innocence. We recognize
that the State’s case against Blackmon had important weak-
nesses: no physical evidence tied him to the murder, and the
State introduced no evidence of a motive. But to counter, the
State had matching independent identifications from Reece
and McDowell. We have repeatedly recognized high rates of
error in eyewitness identifications of strangers. United States
v. Bartlett, 567 F.3d 901, 906 (7th Cir. 2009); Raygoza v. Hulick,
474 F.3d 958, 965 (7th Cir. 2007); Newsome v. McCabe, 319 F.3d
301, 305 (7th Cir. 2003). But we have also recognized that those
findings “have only limited application when multiple wit-
nesses identify the same person.” Bartlett, 567 F.3d at 907; see
also Morales v. Johnson, 659 F.3d 588, 601 (7th Cir. 2011) (“Each
witness’s identification of Morales as the shooter corroborated
the other’s testimony.”); United States v. Williams, 522 F.3d 809,
812 (7th Cir. 2008) (“[T]he number of identifications supplies
valuable information. Even if the risk that any one identifica-
tion would be mistaken is substantial, the risk that multiple
witnesses would make the same error is smaller.”). 3 Further-
3 Certainly, there are situations in which multiple identifications are
of limited value—if the eyewitnesses have contact with one another, for
example, or if they make those identifications due to similarly suggestive
police procedures. See Brandon Garrett, Convicting the Innocent: Where
Criminal Prosecutions Go Wrong 50–51 (2011) (noting that 36% of exonerees
whose cases involved eyewitness identification were wrongly identified
22 No. 14-3059
more, some of the State’s criticisms of Blackmon’s defense ev-
idence are well founded. Arrigo had shown himself unrelia-
ble (and possibly even involved in the murder). And the alibi
witnesses’ testimony is fairly subject to the criticism that it
was acquired years after the barbecue in question and pur-
ports to recount fairly specific details of an unremarkable
gathering. See Woods v. Schwartz, 589 F.3d 368, 377 (7th Cir.
2009) (rejecting claim of actual innocence based on alibi affi-
davits of family members that were prepared years after the
murder and noted “with incredible particularity the most pe-
destrian details of that night,” even though “the night was like
any other”).
Webb and Thomas saw the shooters for no longer than
Reece and McDowell (in fact, Webb did not even see them un-
til they were already fleeing). Furthermore, they did not come
forward until eight years after the murder, a substantial delay
that could affect their memories and/or their credibility. See
Schlup, 513 U.S. at 332 (holding that “the court may consider
how the timing of the submission and the likely credibility of
the affiants bear on the probable reliability of that evidence”).
by multiple eyewitnesses); Deborah Davis & Elizabeth F. Loftus, The Dan-
gers of Eyewitnesses for the Innocent: Learning from the Past and Projecting into
the Age of Social Media, 46 New Eng. L. Rev. 769, 807 (2012) (noting that
“converging identifications seem particularly persuasive if one does not
recognize that: (1) witnesses can influence one another, and (2) separate
witnesses can each be affected by the same suggestive influences (such as
suggestive police procedures)”). Blackmon has not attacked the police
procedures, however, and nothing in the record suggests McDowell and
Reece had any contact with one another before or while making their iden-
tifications.
No. 14-3059 23
This sort of balance between inculpatory and exculpatory
witnesses is not enough to meet the demanding Schlup stand-
ard for actual innocence. See, e.g., Smith v. McKee, 598 F.3d 374,
388 (7th Cir. 2010) (two exculpatory eyewitnesses insufficient
to counter state’s two inculpatory eyewitnesses); Hayes v.
Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (“Suppose that the
six alibi witnesses had been called. That would at best have
produced a draw: six eyewitnesses identify Hayes as the cul-
prit, six others exculpate him. That cannot establish that ‘no
reasonable factfinder would have found the applicant guilty
of the underlying offense[.]’”); see also id. (“[p]roof of inno-
cence must be considerably more than the proof required to
establish prejudice” needed for ineffective assistance of coun-
sel). Blackmon has not shown the miscarriage of justice
needed to excuse his procedural default, so we do not con-
sider the merits of the claim based on the testimony of
Thomas and Webb.
B. Merits of the Remaining Ineffective-Assistance Claims
Blackmon asserts two non-defaulted bases for his claim of
ineffective assistance of counsel under Strickland v. Washing-
ton, 466 U.S. 668 (1984): the failure to call Arrigo as a witness
at trial, and the failure to investigate and present additional
alibi testimony. The operative question is whether the state
court reasonably applied the familiar two-pronged test of
Strickland: (1) whether counsel’s performance “fell below an
objective standard of reasonableness,” Strickland, 466 U.S. at
688, and (2) whether counsel’s errors prejudiced the defend-
ant, requiring him to show a reasonable probability that, but
for those errors, the result of the proceeding would have been
different, id. at 694; see also Allen v. Chandler, 555 F.3d 596, 600
24 No. 14-3059
(7th Cir. 2009). The state court found that counsel’s perfor-
mance was not constitutionally deficient, so we must give
AEDPA deference to that conclusion, upholding it so long as
it is not objectively unreasonable. Badelle v. Correll, 452 F.3d
648, 654–55 (7th Cir. 2006).
1. Richard Arrigo
We cannot disagree with the state court’s finding that the
decision not to call Arrigo was a reasonable strategic decision.
“The Constitution does not oblige counsel to present each and
every witness that is suggested to him.” United States v. Berg,
714 F.3d 490, 499 (7th Cir. 2013), quoting United States v. Best,
426 F.3d 937, 945 (7th Cir. 2005). Rather, counsel need only in-
vestigate possible lines of defense and make an informed de-
cision. Id. “If counsel has investigated witnesses and con-
sciously decided not to call them, the decision is probably
strategic.” Best, 426 F.3d at 945. Strategic decisions like these,
so long as they are made after a thorough investigation of law
and facts, are “virtually unchallengeable.” Strickland, 466 U.S.
at 690.
Arrigo looks helpful at first glance. We must assume he
would have supported Blackmon’s version of events by testi-
fying that he saw the shooting and that Blackmon was not
there. But Blackmon glosses over serious potential problems
with that testimony. Arrigo had been caught lying to the po-
lice during the course of the investigation. He claimed that he
did not have Cox’s phone number but later admitted that a
voicemail on Cox’s cell phone featured his voice. His cell
phone records showed he called Cox before the murder, and
George Davis after it. Blackmon’s attorney could reasonably
have concluded that putting Arrigo on the stand would do
more harm than good. For example, a trier of fact might have
No. 14-3059 25
believed that Arrigo helped arrange the murder and sought
to protect his co-conspirator. Arrigo’s testimony would also
have undermined the defense testimony from Boyd, who
claimed that Arrigo’s friend George Davis was present at the
shooting. Arrigo consistently maintained that he did not rec-
ognize either shooter. Also, Boyd did not even remember see-
ing Arrigo at the scene. Blackmon’s attorney could reasonably
have taken this into account as well.
Blackmon argues that he can “overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 466 U.S. at 689,
quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). He con-
tends that the failure to call Arrigo was not strategic but was
caused by counsel’s accidental failure to secure his attendance
at trial. See Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012)
(presumption that strategic judgments are reasonable “ap-
plies only if the lawyer actually exercised judgment”). Black-
mon relies on this exchange between counsel and the trial
judge:
THE COURT: You’ve got two more wit-
nesses?
[COUNSEL]: I have one for certain and I had
spoken with another gentleman that was sup-
pose[d] to be here but he’s a little—I don’t want
to—
THE COURT: Okay.
[COUNSEL]: —characterize him in any
fashion.
Blackmon argues that the most reasonable inference is that
counsel was referring to Arrigo, who failed to show up. That
26 No. 14-3059
is one possible inference, but not the only one. Nothing in this
exchange shows that the “gentleman” in question was Arrigo
or that counsel failed to secure his attendance through inat-
tention. The state court did not act unreasonably by finding
that the decision not to call Arrigo was reasonable as a matter
of strategy. In addition, given all the baggage Arrigo would
have carried as a witness, we could not say that the failure to
call him prejudiced Blackmon. That failure would not under-
mine confidence in the verdict.
2. Alibi Witnesses from the Barbecue
The alibi witnesses present a very different problem. As
noted above, the decision not to call a particular witness is
frequently strategic, insulated from attack on ineffective-as-
sistance grounds. “An outright failure to investigate wit-
nesses, however, is more likely to be a sign of deficient perfor-
mance.” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005),
citing Rompilla v. Beard, 545 U.S. 374, 387 (2005); see also Strick-
land, 466 U.S. at 690–91 (“strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limita-
tions on investigation”).
On this record, the State must concede, at least for pur-
poses of this appeal, that counsel did not interview any of the
additional alibi witnesses whom Blackmon identified, but the
State argues it was enough that counsel “learned the sub-
stance” of their testimony from interviews with Blackmon
and his family members. Blackmon’s affidavit, which the State
cites for support, says only that Blackmon informed his coun-
sel he was at the barbecue, that plenty of people could vouch
for his presence, and that he eventually provided his counsel
No. 14-3059 27
with names, addresses, telephone numbers, and as much in-
formation as he could on potential alibi witnesses. This does
not mean that counsel knew the substance of those witnesses’
testimony. Counsel had no way of knowing, for example, if
any of the witnesses could definitively place Blackmon at the
barbecue at 4:30 p.m. Such testimony could have provided
Blackmon with a much stronger alibi. Nor does it appear that
counsel or the state court considered the benefits of alibi tes-
timony from disinterested witnesses who, as far as we know
(and unlike Wash and Leavy, who did testify for Blackmon),
had no family ties to Blackmon and no felony convictions. See
Raygoza, 474 F.3d at 963 (noting that “witnesses both related
and unrelated to Raygoza could have been called”); Washing-
ton v. Smith, 219 F.3d 620, 634 (7th Cir. 2000) (testimony of ad-
ditional alibi witnesses without criminal records “would have
added a great deal of substance and credibility” to alibi).
Counsel’s failure to investigate undermines the state
court’s analysis, which appears to assume that counsel knew,
somehow, that the additional alibi witnesses would offer
purely cumulative testimony. If counsel never learned what
the witnesses would have said, he “could not possibly have
made a reasonable professional judgment that their testimony
would have been cumulative.” Mosley, 689 F.3d at 848; see also
Campbell v. Reardon, 780 F.3d 752, 764 (7th Cir. 2015) (rejecting
state court’s assumption that lawyer’s decision not to inter-
view eyewitnesses was reasonable; proper inquiry was
“whether the investigation supporting counsel’s decision” not
to call the witnesses “was itself reasonable”). The unreason-
ableness of counsel’s failure to investigate is further bolstered
by the significant potential benefits of obtaining alibi testi-
mony from witnesses unimpaired by family ties to Blackmon
28 No. 14-3059
or prior convictions, another point the state court apparently
did not consider.
The State also argues that the individual alibi witnesses
would themselves have had vulnerabilities. That’s possible, of
course, but counsel could not have known those vulnerabili-
ties without doing at least some investigation of the witnesses
and the testimony they could provide. There is also no indi-
cation he considered the effect all the witnesses might have
had in combination, any individual weaknesses notwith-
standing. See Raygoza, 474 F.3d at 964 (rejecting attorney’s de-
cision not to call additional alibi witnesses where he “picked
off” each witness based on potential vulnerabilities without
considering the cumulative impact of their testimony).
Strickland “permits counsel to ‘make a reasonable decision
that makes particular investigations unnecessary.’” Harring-
ton, 562 U.S. at 106, quoting Strickland, 466 U.S. at 691. But the
record provides no support to treat as reasonable a decision
not to investigate further the available alibi witnesses from the
barbecue. Blackmon’s location at 4:30 p.m. was the pivotal is-
sue for the defense. Additional disinterested and credible al-
ibi witnesses could have made a significant difference in the
viability of Blackmon’s defense, especially given the problems
with the alibi witnesses who did testify. See Washington, 219
F.3d at 631 (attorney’s failure to try to contact any witnesses
besides one was ineffective, and state court’s decision to the
contrary was an unreasonable application “of Strickland’s re-
quirement that an attorney conduct a reasonable investigation
in connection with his client’s case”). Nothing in the record
shows that investigating those witnesses would have been
“fruitless or harmful,” Campbell, 780 F.3d at 765, citing Strick-
No. 14-3059 29
land, 466 U.S. at 691, and the benefits could have been enor-
mous. Just one witness might have been able to give Black-
mon a true alibi. At a minimum, all of them could have bol-
stered his claim of being at the barbecue all afternoon. It is not
reasonable strategy to leave such possible testimony unex-
plored under these circumstances. So even giving both coun-
sel and the state court the substantial deference they are due
under Strickland and AEDPA, respectively, the state court’s
finding with respect to trial counsel’s performance was, on
this record, unreasonable.
Finally, we must determine whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strick-
land, 466 U.S. at 694. The state court never reached the preju-
dice question, so we review de novo that prong of Strickland.
See Sussman v. Jenkins, 636 F.3d 329, 350 (7th Cir. 2011), quot-
ing Toliver v. McCaughtry, 539 F.3d 766, 775 (7th Cir. 2008). “A
reasonable probability is ‘a probability sufficient to under-
mine confidence in the outcome.’” Mosley, 689 F.3d at 851,
quoting Strickland, 466 U.S. at 694. Unlike the more demand-
ing Schlup inquiry, the issue here is not whether Blackmon is
actually innocent, but instead whether he would have had a
“reasonable chance” of acquittal absent counsel’s errors. Stan-
ley v. Bartley, 465 F.3d 810, 814 (7th Cir. 2006) (noting also that
“it needn’t be a 50 percent or greater chance”). In undertaking
this inquiry, we must “consider the totality of the evidence be-
fore the judge or jury. A verdict or conclusion that is over-
whelmingly supported by the record is less likely to have
been affected by errors than one that is only weakly sup-
ported by the record.” Hough v. Anderson, 272 F.3d 878, 891
(7th Cir. 2001), citing Strickland, 466 U.S. at 696; see, e.g.,
Thomas v. Clements, 789 F.3d 760, 771–72 (7th Cir. 2015).
30 No. 14-3059
We begin there, with the weakness of the State’s case. No
physical evidence tied Blackmon to the crime, nor did the
State present any evidence of motive or connection between
Blackmon and the victim. The only evidence connecting
Blackmon to the murder was the eyewitness testimony of
McDowell and Reece. That was enough to support the guilty
verdict but is by no means ironclad. Neither witness saw the
second shooter’s face for long, and both were strangers to
Blackmon, increasing the danger of mistake. See United States
v. Brown, 471 F.3d 802, 804 (7th Cir. 2006) (“Even under the
best circumstances, the probability of erroneous identification
of a stranger seen briefly is uncomfortably high.”), citing Eliz-
abeth F. Loftus, Eyewitness Testimony (1979), and Daniel L.
Schacter, The Seven Sins of Memory 88–137 (2001). As noted
above, the two corroborating identifications help make mis-
takes less likely, but mistakes are certainly still possible where
two eyewitnesses identify the same alleged perpetrator. Gar-
rett, supra, at 50–51. And their confidence in their identifica-
tions (a point that impressed the trial judge in their favor) is
not a reliable indicator of accuracy. See Newsome v. McCabe,
319 F.3d 301, 305 (7th Cir. 2003) (“Psychological research has
established that the witness’s faith is equally strong whether
or not the identification is correct.”); Garrett, supra, at 63 (not-
ing that almost all the eyewitnesses who testified at exonerees’
trials “expressed complete confidence at trial that they had
identified the attacker”); see also Williams, 522 F.3d at 812 (dis-
cussing how witnesses’ memories realign over time to match
earlier statements, so “trial testimony may reflect more confi-
dence than is warranted”).
Against this weak case for Blackmon’s guilt we balance the
defense bolstered by several additional alibi witnesses, most
No. 14-3059 31
of whom are, as far as we know now, disinterested and unen-
cumbered by prior convictions. See Washington, 219 F.3d at
634 (“Rather than one direct alibi witness with a criminal rec-
ord, Washington could have had three potentially more cred-
ible witnesses[.]”). Six of the seven new witnesses recall being
at the barbecue at 4:30 p.m., when the murder occurred. Some
of them specifically recall interacting with Blackmon at the
picnic; all say they never saw Blackmon leave or noticed he
was gone. At a casual gathering with people coming and go-
ing, it is perhaps unlikely that a single person could vouch for
Blackmon’s continued presence there. But adding another
witness who can say the same thing makes it less likely that
Blackmon would have been able to slip away unseen long
enough to commit the murder. Adding six such witnesses
makes it less likely still, particularly when some of those wit-
nesses can testify to actual interactions with Blackmon during
the course of the afternoon, like Lashun Melton, who says she
played cards with him sometime between about 4:00 and 6:00
p.m., or Tiara Topps, who says she flirted with him sometime
between about 3:00 and 6:00 p.m. In a large-group setting like
this one, the collective weight of the other guests’ testimony is
greater than the sum of their individual accounts.
The alibi witnesses’ testimony is not definitive, of course.
Maybe they are honestly mistaken or even lying. It’s also pos-
sible that everyone who would testify that Blackmon was at
the barbecue all afternoon missed seeing him leave during the
critical window of time. No one can testify specifically to see-
ing him close to the critical time of 4:30 p.m., though Sheryce
Crowder, the mother of Blackmon’s daughter, claimed she
was near him all afternoon. All of the witnesses are vulnerable
to attacks on their memory at this point. Many of them did
not know until years after the barbecue that Blackmon had
32 No. 14-3059
been arrested for murder. At the time, they would have had
no reason to consider the barbecue or Blackmon’s presence at
it of any particular importance.
These are fair criticisms. But to establish prejudice, Black-
mon does not have to prove actual innocence; he does not
even have to show that counsel’s errors more likely than not
altered the outcome in his case. Harrington v. Richter, 562 U.S.
86, 111–12 (2011), quoting Strickland, 466 U.S. at 693, 697;
Campbell, 780 F.3d at 769; Raygoza, 474 F.3d at 963. He must
show only a reasonable likelihood that the outcome would
have been different—that is, a likelihood that is “substantial,
not just conceivable.” Richter, 562 U.S. at 112, citing Strickland,
466 U.S. at 693. Given the weakness of the State’s case—the
complete lack of any motive, the dearth of physical evidence,
and the heavy reliance on the eyewitness identifications of
two strangers who saw the killers for only seconds—we con-
clude that on this record, it is “substantially likely that [Black-
mon] could have raised at least a reasonable doubt and had a
different outcome at trial” if counsel had provided adequate
representation. Thomas, 789 F.3d at 772.
With our § 2254(d)(1) analysis limited to the record that
was before the state court, we conclude that the state court’s
decision was unreasonable. See Cullen v. Pinholster, 563 U.S.
170, 181 (2011); Mosley, 689 F.3d at 841. We have recognized,
however, that although the conclusion that a state court’s
summary decision made on the basis of affidavits was an un-
reasonable application of federal law will often show the pe-
titioner is entitled to relief, “it will not do so always and auto-
matically.” Mosley, 689 F.3d at 853. As in Campbell and Mosley,
the state court here summarily dismissed Blackmon’s petition
for post-conviction relief. It never tested the truth of the alibi
No. 14-3059 33
witnesses’ affidavits through any form of adversarial process.
“Having concluded that the affidavits and statements, if true,
are sufficient to warrant habeas relief, we still have no factual
findings on these questions to review, and the record”—
which contains no affidavit from defense counsel, for exam-
ple—“is otherwise ambiguous.” Campbell, 780 F.3d at 772. Un-
der these circumstances, “an evidentiary hearing is needed to
develop the record on (1) the extent of counsel’s actual pretrial
investigation and (2) what these witnesses would have said if
called to testify at trial.” Id. Whether Blackmon is entitled to
habeas corpus relief will depend on the outcome of that hear-
ing and the district court’s factual findings. See id. at 772–73. 4
We VACATE the denial of Blackmon’s petition for a writ
of habeas corpus, and REMAND this matter to the district
court for consideration of whether Blackmon is actually in
custody in violation of the United States Constitution.
4 We see no reason why Blackmon would not be able to call the salon
witnesses, Latonya Thomas and Lajuan Webb, as witnesses in the eviden-
tiary hearing on remand. We have explained why an independent claim
of ineffective assistance based on their testimony has been procedurally
defaulted (i.e., forfeited). Nevertheless, their testimony might well corrob-
orate the testimony of the alibi witnesses from the barbecue and thus be
relevant to the factual findings the district court will need to make at least
on the prejudice prong of the Strickland analysis.
34 No. 14-3059
POSNER, Circuit Judge, concurring and dissenting. I agree
with the decision to remand this case, but not with the ma-
jority’s treatment of two critical potential witnesses for the
petitioner, witnesses whom his lawyer failed to interview
(or, so far as appears, failed even to attempt to interview),
and by failing rendered ineffective assistance (I would prefer
to say, provided inadequate professional assistance) to his
client.
For a litigant to avoid being bound, as a litigant ordinari-
ly is, by his lawyer’s mistakes, a petitioner for federal habeas
corpus must establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the out-
come.” Strickland v. Washington, 466 U.S. 668, 694 (1984). The
majority opinion in the present case finds that the petitioner
has presented compelling evidence that he probably would
not have been convicted of murder had it not been for his
trial counsel’s indefensible failure to interrogate potential
alibi witnesses, and that therefore the case should be re-
manded to allow him to put those (and perhaps other) wit-
nesses on the stand.
But I don’t agree with the majority’s decision to exclude
from the remand a parallel inquiry into trial counsel’s failure
to interview employees of a hair salon that adjoined the res-
taurant in front of which the murder took place. They were
potential trial witnesses who have signed affidavits that if
accurate provide powerful evidence of the petitioner’s inno-
cence. The majority rejects this claim of inadequate profes-
sional assistance because Blackmon failed to raise it in the
state court (in contrast, he had raised, in state post-
No. 14-3059 35
conviction proceedings, the failure of trial counsel to inter-
view the alibi witnesses). But such a forfeiture is excusable if
“it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt”
had the jury been given the evidence that the defendant’s
lawyer failed through negligence to uncover. Schlup v. Delo,
513 U.S. 298, 327 (1995), so holds, and in House v. Bell, 547
U.S. 518, 538 (2006), we read that although “the Schlup
standard is demanding and permits [federal court] review
only in the ‘extraordinary’ case … [it] does not require abso-
lute certainty about the petitioner’s guilt or innocence. …
[His] burden at the gateway stage is to demonstrate that
more likely than not, in light of the new evidence, no rea-
sonable juror would find him guilty beyond a reasonable
doubt.”
The hair-salon employees’ evidence might not be enough
to carry the day for Blackmon given this demanding stand-
ard; nor the alibi witnesses’ evidence; but together the two
bodies of evidence constitute (in combination with other fac-
tors that I’ll discuss) a powerful showing that Blackmon is
innocent. The majority is willing to allow both sets of wit-
nesses—the alibi witnesses and the hair-salon witnesses—to
testify on remand, but the hair-salon witnesses only condi-
tionally: they may testify only to the extent that their testi-
mony is relevant to the claim that Blackmon’s lawyer ren-
dered ineffective assistance by failing to interview the alibi
witnesses. The majority concludes that Blackmon’s other in-
effective-assistance claim—the claim based on trial counsel’s
failure to interview the hair-salon witnesses—must be dis-
missed because the evidence given by the hair-salon wit-
nesses does not establish a sufficient probability of inno-
36 No. 14-3059
cence to excuse Blackmon’s forfeiture of that claim. I disa-
gree, for reasons that I’ll explain.
Not until eight years after the murder did Blackmon ob-
tain affidavits of the two employees of the hair salon, Lato-
nya Thomas and Lajuan Webb, each of whom has submitted
an affidavit that attests that the affiant was a witness to
events surrounding the murder and that Blackmon was not
one of the murderers. Though Webb did not see the shoot-
ings, immediately after hearing shots he saw two men he
recognized run past the window of the salon holding guns.
Neither man was Blackmon. Thomas, according to her affi-
davit, did see the shooting—and said she was sure that nei-
ther shooter was Blackmon.
Each of the affiants knew the shooters from the neigh-
borhood, and “social-science studies do not suggest that
people who have known one another for weeks or years are
apt to err when identifying them in court.” United States v.
Bartlett, 567 F.3d 901, 906 (7th Cir. 2009). Thomas’s affidavit
states that after hearing what she thought were fireworks
she looked through the “large plate glass window in the
front of the salon,” saw the first man shoot the victim and
the victim “fall to the ground in front of the business just
south of the salon,” and then saw the second shooter ap-
proach the prone victim and shoot him “several more
times.” She recognized this second shooter as “a man nick-
named ‘Pee’ (Real Name Unknown) who was in his late
twenties.” She was “sure of the identity of the two men …
because I’ve seen them both hanging out on the street
around the salon countless times.” Shown photographs of
Blackmon, she said he wasn’t one of the shooters. Her state-
ment that the second shooter was named “Pee” is consistent
No. 14-3059 37
with early investigative leads and with Terrance Boyd’s tes-
timony, which I discuss further below, that a man named
“Pride” (Eric Bridges) was the second shooter. “Pee” (that is,
the letter “P” as it is pronounced when standing alone)
could well be short for “Pride.”
Lajuan Webb’s affidavit is similar. He said he heard gun
shots and then saw “two guys with guns ran past the barber
shop.” He’d “seen those two guys that had the guns prior to
the day of the shooting in the neighborhood near the barber
shop” and Blackmon “was not one of the guys I seen run-
ning past the barber shop holding a gun.” He said the police
had questioned him immediately after the shooting but had
never followed up.
The hair-salon witnesses are more reliable than the state’s
two witnesses, who in a photo array, then in a line-up, and
finally at trial, had identified Blackmon as the second shoot-
er. Those witnesses had never met or seen the second shoot-
er before the murder, while the hair-salon witnesses had
seen both shooters before then, knew them, and were sure
that neither was Blackmon. As for those witnesses’ failure to
come forward with their testimony for years, Thomas ex-
plained that she “was fearful that those guys [the shooters]
might have found out and tried to do something to me” had
she spoken to police. Had she thought that Blackmon was
one of the shooters and had been arrested, she would not
have been fearful that the shooters (plural) would have tried
to do something to her; she would have known that one of
them had been caught and neutralized. (Webb said he
hadn’t known that anyone had been arrested for the crime.)
The affidavits of the salon witnesses bolster the affidavits
of the alibi witnesses on whom the majority opinion bases its
38 No. 14-3059
decision to remand the case. The alibi witnesses claim to
have seen Blackmon at a barbecue around the time of the
murder and did not see him leave during that time. And all
but two of them neither had nor have any close connection
to him and thus would have no reason to lie to protect him.
But the hair-salon witnesses likewise had and have, so far as
appears, no ties to Blackmon that might cause them to lie on
his behalf. (It’s not known whether either of them had any
criminal history that might undermine their affidavits.)
The two eyewitnesses to the murder on whom the gov-
ernment rests its case had previously identified Blackmon in
a photo array and then in a line-up as the second shooter.
Neither recognized the second shooter as someone they’d
ever met. The photo arrays postdated the murder by nearly
two months and were confusing, as they contained only
black-and-white photos, thus concealing hair color, skin
tone, and other facial features. One of the eyewitnesses testi-
fied that she’d seen the second shooter’s face for “maybe
three” seconds, the other for five seconds “maybe.” Both had
been distracted. They had been in their cars at the time, both
with children—five between the two of them. One, a twelve-
year-old, viewed the same photo array as the two grown-ups
but identified someone other than Blackmon as one of the
shooters, and did not identify Blackmon as the other. Alt-
hough one of the mothers had called 911 as she drove away
from the murder scene, she testified that the police had not
contacted her until more than a month after the shooting.
One of the mothers testified that she’d told officers she’d
seen an Italian or Hispanic man (Richard Arrigo, discussed
in the majority opinion) holding a gun in his hand, the other
that that man wasn’t holding a gun and that two black men
were the shooters.
No. 14-3059 39
No physical evidence tied Blackmon to the murder, and
the state presented no evidence of a motive—and couldn’t
even explain why he’d been included in the photo array in
the first place. Though one detective said the police had re-
ceived information about Blackmon’s involvement in the
murder “from family members,” the family members were
never identified and it isn’t even clear to whose family the
detective was referring. The prosecution presented no evi-
dence that Blackmon had known either the murder victim or
the man who was identified by the 12-year-old as one of the
assailants and is believed on the basis of additional evidence
to have been the first shooter. Although the police had heard
that the shooting was the result of a dispute among gang
members, no evidence of that was presented at the trial—or
that Blackmon was a gang member.
Earlier I noted evidence pointing to Eric Bridges
(“Pride”) as the second shooter. He belonged to the same
gang as the murder victim. Neither of the state’s eyewitness-
es was shown a photo of Bridges even though the police had
learned four days after the murder that one of the shooters
was called “Pride,” and Terrance Boyd told them before
Blackmon’s trial that Bridges was the second shooter. Boyd
testified that he’d met up with Tony Cox (the murder victim)
on the day of the shooting because Cox had said he needed
to discuss business with Bridges. Boyd said he left the two of
them so that they could talk privately and walked into a
nearby alley and while there he heard gunshots and “saw
Eric Bridges shooting—shooting Tony” about twenty feet
from where Boyd was standing. That the police didn’t show
the state’s two eyewitnesses a photograph of Bridges was a
remarkable investigative failure.
40 No. 14-3059
The case is much like Schlup. Schlup had been convicted
of murdering another prison inmate. The state’s evidence
consisted of testimony by two corrections officers who had
witnessed the killing. Schlup’s defense included a video
showing him in the prison dining room, far from where the
murder took place, 65 seconds before the alarm was sound-
ed. After the trial Schlup presented evidence that another
guard had seen him elsewhere in the prison right around the
time of the murder, plus statements of numerous eyewit-
nesses to the murder who swore that Schlup had not com-
mitted it. The Supreme Court said that if the new statements
were found to be reliable, “it surely cannot be said that a ju-
ror, conscientiously following the judge’s instructions re-
quiring proof beyond a reasonable doubt, would vote to
convict.” Schlup v. Delo, supra, 513 U.S. at 331.
And in Larsen v. Soto, 742 F.3d 1083, 1098–99 (9th Cir.
2013), we read that “despite the Warden’s repeated argu-
ments that a ‘swearing match’ between prosecution and de-
fense witnesses is insufficient to satisfy Schlup, [he] never
meaningfully explains how a jury faced with evidence from
five different witnesses that a different person threw the
knife could nonetheless have concluded that Larsen was
guilty beyond a reasonable doubt. If the fact that prosecution
witnesses testified against the defendant at trial were suffi-
cient to defeat any actual innocence claim, the Schlup doc-
trine would be meaningless. Indeed, Schlup itself is to the
contrary.”
I agree with the statement in the majority opinion “that
Blackmon’s trial counsel was constitutionally ineffective by
failing to investigate the alibi witnesses and [that this] shows
that the state court’s summary dismissal of the claim was
No. 14-3059 41
unreasonable.” And I agree that a “state court’s mistake in
summarily rejecting a [habeas corpus] petition, i.e., without
fully evaluating conflicting evidence on disputed factual is-
sues, does not necessarily mean the petitioner is ultimately
entitled to relief.” Mosley v. Atchison, 689 F.3d 838, 842 (7th
Cir. 2012) (emphasis added). So a hearing is necessary. But
Blackmon’s fate should not depend entirely on the alibi wit-
nesses. The evidence of the hair-salon witnesses is sufficient-
ly reliable to justify a hearing about whether no reasonable
juror would have convicted him had they heard those wit-
nesses’ testimony, and such a ruling would forgive his hav-
ing forfeited his claim of ineffective assistance by reason of
his lawyer’s failure to interview the hair-salon witnesses be-
fore the murder trial. See Schlup v. Delo, supra, 513 U.S. at
331–32; Coleman v. Hardy, 628 F.3d 314, 318–23 (7th Cir.
2010); Wolfe v. Clarke, 691 F.3d 410, 420–22 (4th Cir. 2012).
Ineffective assistance of counsel in regard to the potential
hair-salon witnesses, forfeited because not urged by counsel
in the state court proceedings, is a constitutional error that
can support a petition for habeas corpus. The failure of
Blackmon’s trial counsel to locate and interview the two em-
ployees of the salon who had seen the murderers, recog-
nized them, and were sure that Blackmon was not one of
them, was a disastrous blunder given the paucity of evi-
dence of his guilt. Counsel must have accepted the police
reports (which stated that one person at the salon had been
interviewed and had not seen the murder) uncritically; for
he failed to conduct his own investigation to discover
whether anyone else had been in the salon. Although
Blackmon’s new evidence should be subject to scrutiny on
remand, he has made a strong showing that his lawyer’s
failure to find and interview the hair-salon witnesses fell be-
42 No. 14-3059
low the minimum standard of reasonable representation of a
defendant charged with murder and greatly harmed Black-
mon’s defense. Cf. Campbell v. Reardon, 780 F.3d 752, 767–72
(7th Cir. 2015); Mosley v. Atchison, supra, 689 F.3d at 848–49;
U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 249–56 (7th Cir.
2003); Washington v. Smith, 219 F.3d 620, 629–32 (7th Cir.
2000).
The Schlup standard “does not require absolute certainty
about the petitioner’s guilt or innocence.” House v. Bell, su-
pra, 547 U.S. at 538. Yet the evidence emanating from the
hair-salon witnesses comes close. They knew the shooters
and say with certainty that neither one was Blackmon—
instead the second one probably was Eric “Pride” Bridges.
The two hair-salon witnesses have no known connection—
family, business, social, political—to Blackmon and thus
nothing to gain from lying to protect him. Compare Smith v.
McKee, 598 F.3d 374, 388 (7th Cir. 2010); Hayes v. Battaglia,
403 F.3d 935, 938 (7th Cir. 2005).
The hair-salon witnesses’ affidavits, in combination with
the other evidence of Blackmon’s evidence that I’ve just
summarized, would seem to outweigh the identification of
him as one of the shooters, months after the shootings, by
two unreliable eyewitnesses. Against this the majority opin-
ion argues that “even if the risk that any one identification
would be mistaken is substantial, the risk that multiple wit-
nesses would make the same error is smaller.” Were this
true (as I doubt, because a witness may be influenced by a
forceful, confident, yet thoroughly erroneous report by an-
other witness of the same event), it still would do nothing to
bolster the majority’s belief that the government’s eyewit-
nesses were more reliable than the hair-salon witnesses. For
No. 14-3059 43
there were two of them also—making them multiple wit-
nesses, too, and the multiple was identical to that of the gov-
ernment’s witnesses. The majority opinion thus does nothing
to enable us to distinguish the accuracy of the government’s
eyewitnesses from that of the hair-salon witnesses—yet for
reasons explained earlier in this opinion the latter witnesses
seem more credible than the former.
The majority opinion points out that the hair-salon wit-
nesses did “not come forward until eight years after the
murder, a substantial delay that could affect their memories
and/or their credibility.” Could; but I imagine that witness-
ing a murder is the kind of experience that sticks with one
for many years, especially when one recognizes the murder-
ers.
In sum, the hair-salon witnesses’ evidence by itself, with-
out regard to the alibi witnesses’ evidence, if found reliable
would entitle Blackmon to a new trial. And a remand to de-
termine that reliability is essential, lest the alibi witnesses
prove to be unconvincing on remand.
On this note I end my discussion of Blackmon’s appeal
with a plea to the majority to reconsider its brush off of the
hair-salon witnesses. But I want in closing to mention some
reservations that I have concerning terminology in the ma-
jority opinion. I do not criticize the majority for the termi-
nology. It is taken from previous decisions, many of them
Supreme Court decisions; it is not the invention of this pan-
el. But legal language is a plague, much of which originates
in Supreme Court opinions.
An example of what troubles me is the majority opinion’s
numerous iterations of the phrase “actual innocence,” and its
44 No. 14-3059
occasional invocations of the cognate term “actually inno-
cent.” These phrases are misleading. A defendant is either
innocent or guilty. There is no separate state of being actual-
ly rather than just—just what?—innocent. So what work is
“actual” or “actually” doing? None I think. Something in the
legal genome causes lawyers and judges to want to speak in
pairs, as in “arbitrary and capricious” and “clear and con-
vincing.” Ask yourself: what does “arbitrary” add to “capri-
cious” or vice versa, “clear” to “convincing” or vice versa,
“actual” to “innocence.”
The history of the term “actual innocence” is revealing.
Its remote origin is a famous article by Judge Henry Friend-
ly, “Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments,” 38 U. Chi. L. Rev. 142 (1970). He argued that for
collateral attacks (as by federal habeas corpus) on criminal
convictions—attacks based for example on alleged federal
constitutional violations in the state proceeding—to succeed
on a procedurally barred claim, generally the petitioner
should be required to present evidence that he probably was
innocent of the crime for which he had been convicted.
Three justices of the Supreme Court adopted Judge Friend-
ly’s suggestion in Kuhlmann v. Wilson, 477 U.S. 436 (1986),
where Justice Powell, writing for the plurality, added “fac-
tual” before “innocence.” The Court adopted this formula-
tion, minus the “f,” to create the “actual innocence” excep-
tion to procedural default at issue in this case. See Murray v.
Carrier, 477 U.S. 478 (1986). The term is understood to distin-
guish not having committed the crime of which one was
charged from having been entitled to acquittal on some
ground unrelated to the merits, such as lack of jurisdiction.
See Bousley v. United States, 523 U.S. 614, 623 (1998) (“’actual
innocence’ means factual innocence, not mere legal insuffi-
No. 14-3059 45
ciency”). It would have been more accurate to say that some
acquittals are based on the defendant’s having been found
innocent of the crime or crimes with which he was charged,
and others are based on reasons unrelated to guilt or inno-
cence, such as lack of jurisdiction, violation of certain consti-
tutional rights (for example, rights conferred by the Fourth
Amendment), or expiration of the statute of limitations. Fair
enough, but the adjectives “factual” and “actual” add noth-
ing to the distinction. The Court should have stuck with “in-
nocence,” dropping both adjectives.
Another familiar term in legal discourse that appears in
the majority opinion in this case and that I would like to see
purged is “procedural default,” a cumbersome alternative to
“forfeiture.” The failure of a petitioner for federal habeas
corpus to have given the state courts a chance to rule on the
claim he seeks to vindicate in the habeas corpus proceeding
normally forfeits the right to press the claim in federal court.
But the petitioner can be relieved of his forfeiture—as he
should be in this case with regard to the hair-salon witnesses
irrespective of the fate of the alibi witnesses—if he has
strong though not necessarily conclusive evidence of his in-
nocence.