Stephen Toliver v. Gary McCaughtry

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1577
S TEPHEN T OLIVER,
Petitioner-Appellee,
v.
W ILLIAM P OLLARD ,Œ
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:02-cv-01123—Patricia J. Gorence, Magistrate Judge.
A RGUED M AY 23, 2012—D ECIDED A UGUST 6, 2012
Before P OSNER, R IPPLE, and R OVNER, Circuit Judges.
Œ
We substitute William Pollard, the current warden of
Waupun Correctional Institution, as the Respondent in this
action. See Fed. R. App. P. 43(c)(2). Also, under the Seventh
Circuit’s Internal Operating Procedure 6(b), this successive
appeal is submitted to the same panel of judges that disposed
of Mr. Toliver’s prior appeal.
2 No. 11-1577
R IPPLE, Circuit Judge. The State of Wisconsin appeals
the district court’s decision to grant Stephen Toliver a
writ of habeas corpus under 28 U.S.C. § 2254. Mr. Toliver
is serving a life sentence for the 1992 murder of Tina
Rogers. His petition raises many claims, but here the
parties focus on two: whether his trial counsel was con-
stitutionally ineffective because counsel did not call at
trial two exculpatory witnesses, and whether the pros-
ecution failed to disclose to Mr. Toliver an exculpatory
document. During the first appeal of this case, we held,
with respect to the ineffective-assistance claim, that trial
counsel’s omissions were prejudicial. However, we re-
manded for fact-finding on whether they were also ob-
jectively unreasonable. We also remanded the ex-
culpatory evidence claim for fact-finding on whether
the prosecution had ever received the exculpatory docu-
ment. See Toliver v. McCaughtry (Toliver I), 539 F.3d 766(7th Cir. 2008). After an evidentiary hearing, the district
court granted Mr. Toliver’s petition on the ground that
trial counsel was ineffective but denied relief on the
exculpatory-evidence claim. For the reasons set forth
in this opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts From the State Criminal Trial
We summarize the facts detailed in Toliver I, 539 F.3d
at 769-70. In 1991, Mr. Toliver and his brother, Oliver
Toliver, lived with Commosie Thompson, Jo-Etta Foster
No. 11-1577 3
and Tina Rogers. Thompson sold drugs out of the resi-
dence and discovered that some drug money was miss-
ing. When Thompson told Mr. Toliver about the missing
money, Mr. Toliver told Thompson that Rogers took it.
Mr. Toliver told his brother Oliver to “strap up”; both men
grabbed firearms and went looking for Rogers.1 Mr. Toliver
told Oliver to “strap up” because their house had been
“shot up” several weeks after Rogers had moved in and
because they suspected that Rogers’s boyfriend, whom
Mr. Toliver believed to be violent, had been involved in
the shooting.2
Mr. Toliver and Oliver found Rogers and brought her
back to the residence. Rogers denied taking the money,
and Mr. Toliver yelled at her. Mr. Toliver then tossed his
firearm next to Thompson and ordered him to shoot
whomever he thought had stolen the money, including
Mr. Toliver himself; Thompson did not respond. Oliver
then moved aggressively toward Rogers, but Mr. Toliver
pushed him away, warning Oliver to “chill out and sit
down.” 3 Despite the warning, Oliver shot Rogers in the
forehead, killing her.
B. State Proceedings
Mr. Toliver was convicted by a jury of first-degree
intentional homicide as a party to a crime, in violation
1
Toliver v. McCaughtry (Toliver I), 539 F.3d 766, 769 (7th Cir.
2008) (internal quotation marks omitted).
2
Id. (internal quotation marks omitted).
3
Id. (internal quotation marks omitted).
4 No. 11-1577
of sections 940.01 and 939.05 of the Wisconsin Statutes.
The court sentenced him to life imprisonment. After
appealing and exhausting his state habeas remedies,
Mr. Toliver petitioned for a writ of habeas corpus under
28 U.S.C. § 2254, citing ineffective assistance of appel-
late counsel. The district court conditionally granted
Mr. Toliver’s petition on that ground. 4 It ordered that
Mr. Toliver be released or that the state court permit him
to re-file his direct appeal with the assistance of counsel.
The State chose the latter course, and Mr. Toliver,
represented by counsel, brought six different claims,
including the two we discuss, in state court. In support
of his ineffective-assistance claim, Mr. Toliver introduced
the affidavits of Angeal Toliver (his wife and the mother
of his children) and Harvey Toliver (his cousin), both
of whom had offered, but were never called, to testify
on Mr. Toliver’s behalf that Oliver acted alone. For the
exculpatory-evidence claim, Mr. Toliver submitted an
affidavit from Cornell Smith, who described an exculpa-
tory letter that he claimed to have sent to Mr. Toliver’s
prosecutor before the criminal trial. The state courts
denied relief.
C. The Current Federal Habeas Petition and Toliver I
Mr. Toliver then petitioned for federal habeas relief
under 28 U.S.C. § 2254. His petition raised seven
4
Wisconsin ex rel. Toliver v. McCaughtry, 72 F. Supp. 2d 960, 979
(E.D. Wis. 1999).
No. 11-1577 5
grounds, and the district court denied the petition on
each ground. Mr. Toliver appealed each ground, but we
focused only on Mr. Toliver’s ineffective-assistance and
exculpatory-evidence claims.
1.
In this current federal habeas proceeding, Mr. Toliver
argued that his trial counsel was ineffective for failing
to call Angeal to testify and for failing to interview
Harvey. He contended that each of these witnesses
would have corroborated his assertion that Oliver had
acted alone when he shot Rogers.5
Angeal stated in her affidavit that she had told
Mr. Toliver’s counsel of a conversation she had with
Jo-Etta Foster, a state witness, in which Foster had told
her that Foster saw Mr. Toliver trying to wrestle a gun
away from Oliver after the shooting.
Harvey’s affidavit described a conversation that he
had with the Toliver brothers in which Mr. Toliver repri-
manded Oliver, saying that he “shouldn’t have killed her
because it wasn’t any of [Oliver’s or Mr. Toliver’s] business
if this woman . . . did or didn’t steal Commosie’s dope and
money.” 6 According to Harvey, Mr. Toliver said that he
would not take the blame for Oliver, to which Oliver
responded that “he would confess to what he did because
5
Toliver I, 539 F.3d at 772-73.
6
Id. at 773 (ellipsis in original) (internal quotation marks
omitted).
6 No. 11-1577
he wouldn’t let his brother, [Mr. Toliver,] take the
blame for what he had done.” 7 Harvey further testified
that he would have been willing to share this informa-
tion with Mr. Toliver’s counsel had he been con-
tacted. Mr. Toliver asserts that this evidence sub-
stantiated his contention that he opposed his brother’s
shooting Rogers.
In addressing Mr. Toliver’s ineffective-assistance claim,
we observed that, under Strickland v. Washington, 466
U.S. 668 (1984), Mr. Toliver had to show both “that his
lawyer ‘fell below an objective standard of reasonableness’
and that there is a ‘reasonable probability that, but for
counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.’ ” Toliver I, 539 F.3d
at 773 (quoting Strickland, 466 U.S. at 688, 694). Ap-
plying the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), to the preju-
dice prong of Strickland, we concluded that the state
court’s analysis of that prong “fell outside the bounds
of objective reasonableness.” 8 Angeal’s and Harvey’s
testimony, we ruled, “would have enhanced significantly
the chances of the jury’s accepting Mr. Toliver’s character-
ization of the facts, thereby affording Mr. Toliver a rea-
sonable probability of a different result at trial.” 9 Because
the Wisconsin courts did not address whether counsel’s
performance was objectively unreasonable, we held that
AEDPA did not apply to the unreasonable-performance
7
Id. (alteration in original) (internal quotation marks omitted).
8
Id. at 776.
9
Id.No. 11-1577 7
prong, and we reviewed de novo the performance issue.1 0
After examining the affidavits, we concluded that
“[n]othing in the record before us suggests how Angeal
Toliver’s and Harvey Toliver’s testimony could have
harmed Mr. Toliver’s defense.” 1 1 Surmising that the
only reason not to call Angeal and Harvey was the possi-
bility of family bias, we stated that such bias did not
outweigh “the probative and corroborative testimony”
they would have provided.1 2 We also indicated that
Mr. Toliver’s “counsel could not have made a rea-
sonable strategic decision not to call Harvey without
interviewing him in order to evaluate his proposed testi-
mony, his credibility or his demeanor.” 1 3 We remanded,
however, for the district court to determine in the
first instance whether Mr. Toliver’s counsel was de-
ficient when he failed to call Angeal and to interview
Harvey.
2.
In Toliver I, Mr. Toliver also argued that Smith’s letter
constituted exculpatory evidence that was not, but
should have been, disclosed to him prior to trial.1 4 In
an affidavit, Smith testified that he had sent to the pros-
10
Id. at 775.
11
Id.12
Id.13
Id.14
Id. at 771.
8 No. 11-1577
ecutor a letter in which he had stated that Mr. Toliver
had attempted to dissuade Oliver from killing Rogers
and that Oliver acted alone when he shot Rogers. The
Wisconsin appellate court concluded that, even as-
suming that the State had received the letter from
Smith and had failed to turn it over to Mr. Toliver, there
was not a reasonable probability that the evidence
would have led to a different result at trial.1 5
In evaluating these arguments in Toliver I, we observed
that, in order to establish a prosecutorial violation
under Brady v. Maryland, 373 U.S. 83 (1963), “a de-
fendant must demonstrate that: (1) the prosecution sup-
pressed evidence; (2) the evidence was favorable to
the defense; and (3) the evidence was material to an
issue at trial.” 539 F.3d at 780 (citing United States v.
Walton, 217 F.3d 443, 450 (7th Cir. 2000)). Again applying
AEDPA, we reasoned that the Wisconsin appellate
court applied Brady in an objectively unreasonable
manner because Smith’s testimony could have changed
the result of the trial.1 6 Because the Wisconsin courts
never addressed whether the prosecutor actually re-
ceived the letter, however, we remanded the issue to
the district court for fact-finding.1 7
15
Id. at 779.
16
Id. at 780-82.
17
Id. at 782.
No. 11-1577 9
D. Evidentiary Hearing on Remand
The evidentiary hearing consisted of two parts: whether
trial counsel performed deficiently by failing to call
Angeal and Harvey, and whether the prosecutor re-
ceived the letter from Smith.
In support of his claim that his trial counsel was defi-
cient, Mr. Toliver testified that he had told his counsel
that Harvey and Angeal would testify for him at trial.
Mr. Toliver said that his counsel had replied that
neither would be believable because of their family rela-
tionship. Counsel interviewed Angeal and placed her
on Mr. Toliver’s witness list, but never called her to
testify. Counsel never interviewed Harvey. At the
hearing, Mr. Toliver recalled that he disagreed with his
counsel’s approach and tried to terminate him several
times.
Mr. Toliver’s trial counsel, having died in the 1990’s,
did not testify at the evidentiary hearing. However, the
district court considered the record from a state-court
pretrial conference in 1992 that supports Mr. Toliver’s
testimony that he opposed his counsel’s inaction. There,
Mr. Toliver asked the court for new counsel, complaining
that his attorney was not following up on leads that
Mr. Toliver had given, including witnesses that counsel
had not interviewed. Counsel responded: “As far
as I know, I have sent the investigator out to talk with
everybody that is closely relevant to the case. But
Mr. Toliver and I do see things differently, there is no
10 No. 11-1577
question about that.” 1 8 Counsel also acknowledged that he
was busy preparing for another upcoming homicide trial.
Mr. Toliver’s counsel did not call Angeal or Harvey
to testify at the evidentiary hearing. He explained that
the substance of their affidavits was not in dispute, and
the State agreed that it was not necessary to produce
the witnesses.
On the Brady issue, Smith testified that, before
Mr. Toliver’s trial, he sent the lead prosecutor, Mark
Williams, a letter explaining how Mr. Toliver tried to
stop Oliver from shooting Rogers. Smith said he re-
ceived a response letter from Williams about a week
later stating that Smith’s information did not shed light
on the case. Smith did not have a copy of either letter.
Williams had no recollection of receiving Smith’s letter;
he testified that, if he had received a letter or written
a reply, he would have placed it in the case file, which
contained no such letters. He acknowledged, however,
that the communication could have been misplaced.
E. The District Court’s Ruling
On remand, the district court granted relief on the
ineffective-assistance claim. It concluded that counsel’s
decision not to call Harvey would not be afforded the
normal presumption of validity because the decision
was uninformed—it was undisputed that counsel had
not even interviewed Harvey. As for Angeal, the district
18
R.110-1 at 12-13.
No. 11-1577 11
court noted Mr. Toliver’s testimony that family bias
was counsel’s only reason for not calling Angeal and
that Toliver I had concluded that possible bias alone is
not a legitimate reason to refuse to call a corroborating
witness. Therefore, the district court concluded that
counsel’s performance was deficient.
On the exculpatory-evidence issue, the court acknowl-
edged the conflicting, credible testimony provided by
both Williams and Smith. However, because Mr. Toliver
bore the burden of establishing that the letter was
received, the court concluded that Mr. Toliver had not
proved that Williams had received the letter from Smith.
II
DISCUSSION
A. Habeas Corpus Standards of Review
We review the district court’s grant of habeas relief
de novo.19 If a state court has adjudicated a petitioner’s
claim on the merits, habeas relief may be granted only
if that state court decision “was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” or if it “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).
19
Etherly v. Davis, 619 F.3d 654, 660 (7th Cir. 2010); Northern v.
Boatwright, 594 F.3d 555, 559 (7th Cir. 2010).
12 No. 11-1577
“When no state court has squarely addressed the merits
of a habeas claim, however, we review the claim under
the pre-AEDPA standard of 28 U.S.C. § 2243, under
which we ‘dispose of the matter as law and justice re-
quire.’ ” Morales v. Johnson, 659 F.3d 588, 599 (7th Cir.
2011) (internal quotation marks omitted).
B. Evidentiary Hearings in Habeas Proceedings
Before reaching the information uncovered at the evi-
dentiary hearing, we must address the State’s conten-
tion that the hearing itself was impermissible. The State
argues, in light of Cullen v. Pinholster, 131 S. Ct. 1388(2011), that our remand for an evidentiary hearing on
the ineffective-assistance issue was improper. In
Pinholster, the Supreme Court explained “that evidence
introduced in federal court has no bearing on § 2254(d)(1)
review.” Id. at 1400. Instead, it
h[e]ld that review under § 2254(d)(1) is limited to
the record that was before the state court that
adjudicated the claim on the merits. Section
2254(d)(1) refers, in the past tense, to a state-court
adjudication that “resulted in” a decision that
was contrary to, or “involved” an unreasonable
application of, established law. This backward-
looking language requires an examination of the
state-court decision at the time it was made. It
follows that the record under review is limited to
the record in existence at that same time i.e., the
record before the state court.
No. 11-1577 13
131 S. Ct. at 1398; see also Price v. Thurmer, 637 F.3d 831, 837
(7th Cir. 2011) (“In light of [Pinholster] we should not
have ordered such a hearing insofar as Price was seeking
relief under section 2254(d)(1).”).
Pinholster does not apply to Mr. Toliver’s case be-
cause the Wisconsin courts never addressed whether
Mr. Toliver’s counsel performed deficiently. Pinholster
prohibits federal evidentiary hearings only on inquiries
that are subject to AEDPA—that is, inquiries that the
state courts have addressed. Accordingly, the district
court properly received evidence on the unaddressed
Strickland prong. See Wiggins v. Smith, 539 U.S. 510, 534
(2003). The same conclusion is true for the hearing on
whether the prosecutor received Smith’s letter. The Wis-
consin courts passed over that part of the inquiry and
went directly to prejudice. Therefore, Pinholster’s restric-
tion on evidentiary hearings under § 2254(d)(1) does not
apply to Mr. Toliver.
Pinholster itself anticipates this distinction in its dis-
cussion of § 2254(e)(2), which provides for federal evi-
dentiary hearings when § 2254(d)(1) does not apply:
Section 2254(e)(2) continues to have force where
§ 2254(d)(1) does not bar federal habeas relief. For
example, not all federal habeas claims by state
prisoners fall within the scope of § 2254(d), which
applies only to claims “adjudicated on the merits
in State court proceedings.” At a minimum, there-
fore, § 2254(e)(2) still restricts the discretion of
federal habeas courts to consider new evidence
14 No. 11-1577
when deciding claims that were not adjudicated
on the merits in state court.
Pinholster, 131 S. Ct. at 1401; see James v. Ryan, 679 F.3d
780, 803-04 (9th Cir. 2012); Han Tak Lee v. Glunt, 667
F.3d 397, 405 (3d Cir. 2012); Robinson v. Howes, 663 F.3d
819, 823 (6th Cir. 2011).
An evidentiary hearing under § 2254(e)(2) was proper
in this case because Mr. Toliver diligently tried to
develop the facts of his two claims in state court. In his
state appeal, the state trial court, which heard the
appeal under a provision of Wisconsin law, see Toliver I,
539 F.3d at 771 & n.4, denied Mr. Toliver’s request for
an evidentiary hearing. Instead, the trial court relied on
the record from Mr. Toliver’s first appeal in 1993, even
though Mr. Toliver had proceeded without counsel then.
That record contained Angeal’s, Harvey’s and Smith’s
affidavits, but no in-court testimony. Mr. Toliver com-
plained about this issue in his subsequent appeal to the
Wisconsin appellate court. Our colleagues on that
court acknowledged that, with respect to the issue of
whether the State had received the letter from Smith,
the record was not developed, and they indicated that an
evidentiary hearing would be necessary to resolve the
issue. There was nothing else Mr. Toliver could have
done to develop the factual record. Therefore, the federal
evidentiary hearing was proper under § 2254. Williams
v. Taylor, 529 U.S. 420, 437 (2000) (“If there has been no
lack of diligence at the relevant stages in the state pro-
ceedings, the prisoner has not ‘failed to develop’ the
facts under § 2254(e)(2)’s opening clause, and he will be
No. 11-1577 15
excused from showing compliance with the balance of the
subsection’s requirements.”); see also Dalton v. Battaglia,
402 F.3d 729, 737 (7th Cir. 2005); Richardson v. Briley, 401
F.3d 794, 800 (7th Cir. 2005).
C. Ineffective Assistance of Counsel Claim
The State advances two arguments with respect to
why the district court should not have issued the writ
on the basis of ineffective assistance of counsel. First, it
asks us to reconsider our determination in Toliver I that
the Wisconsin court unreasonably found no prejudice
to Mr. Toliver. Second, the State contends that, on
remand, Mr. Toliver failed to meet his burden of showing
that counsel performed deficiently.
1.
We first address Strickland’s prejudice requirement
and the State’s contention that we should revisit our
earlier holding on that issue. In Toliver I, we applied
AEDPA deference to the Wisconsin appellate court’s
decision on the prejudice prong because the state courts
had addressed the issue, and we concluded that the
Wisconsin courts had applied unreasonably and
incorrectly federal law. The State contends, once again,
that the Wisconsin appellate court’s decision was
within the bounds of objective reasonableness. It relies
on Harrington v. Richter, 131 S. Ct. 770 (2011), decided
after Toliver I, which confirmed the limited scope of
AEDPA review:
16 No. 11-1577
As a condition for obtaining habeas corpus from
a federal court, a state prisoner must show that
the state court’s ruling on the claim being pre-
sented in federal court was so lacking in justi-
fication that there was an error well understood
and comprehended in existing law beyond any
possibility for fairminded disagreement.
Harrington, 131 S. Ct. at 786-87. The Court explained that
the court of appeals had not applied AEDPA properly
when it engaged in de novo review and determined
that petitioner’s counsel had been constitutionally inef-
fective.
We decline to revisit our earlier prejudice ruling
because the law-of-the-case doctrine applies to that deter-
mination. This doctrine advises against revisiting earlier
rulings “absent a compelling reason, such as manifest
error or a change in the law.” Minch v. City of Chicago, 486
F.3d 294, 301 (7th Cir. 2007). Harrington did not signify
a change in the law; it merely clarified the AEDPA stan-
dard and reversed the judgment of the court of appeals
for its de novo review of a Strickland claim. In Toliver I,
we identified and applied the proper deferential
standard under AEDPA, writing that “a habeas peti-
tioner must show that the state court’s application of
Strickland was both incorrect and unreasonable—that is,
‘lying well outside the boundaries of permissible differ-
ences of opinion.’ ” Toliver I, 539 F.3d at 774 (quoting
Raygoza v. Hulick, 474 F.3d 958, 963 (7th Cir. 2007)). Harring-
ton joins an unbroken line of cases interpreting AEDPA,
and our decision in Toliver I falls comfortably within
No. 11-1577 17
that line. Accordingly, there is no compelling reason to
revisit our previous determination on this issue, and
we decline to do so.
2.
Next we turn to the performance prong of Strickland,
which requires us to determine whether, considering
the new evidence produced on remand, counsel fell
below an objective standard of reasonableness. In light
of trial counsel’s death, the parties agree that the district
court gained little new information from the hearing.
Mr. Toliver’s testimony, which the district court ac-
cepted as true, confirmed that counsel did not call the
two witnesses that Mr. Toliver desired because counsel
thought the jury would disbelieve them based on
their family relationship. The transcript from the 1992
pre-trial conference confirmed the difference of
opinion between Mr. Toliver and his attorney about
securing additional witnesses. We also now know that
Mr. Toliver’s counsel was busy preparing for another
homicide trial that was set to start soon after Mr. Toliver’s
trial. For its part, the State could not shed any further
light on counsel’s decision not to call Angeal and
Harvey because it could not locate counsel’s files or any
similar information. Nonetheless, we can assess counsel’s
performance without testimony from deceased trial
counsel.20
20
See Williams v. Anderson, 460 F.3d 789, 803-04 (6th Cir. 2006);
Rolan v. Vaughn, 445 F.3d 671, 676, 682 (3d Cir. 2006); see also
(continued...)
18 No. 11-1577
“So long as an attorney articulates a strategic reason
for a decision that was sound at the time it was made,
the decision generally cannot support a claim of
ineffective assistance of counsel.” Yu Tian Li v. United
States, 648 F.3d 524, 528 (7th Cir. 2011). However, we can
find nothing in the record to suggest that Mr. Toliver’s
attorney could have been making a sound strategic
choice when he decided not to call Angeal and Harvey
merely because of the family relationship. We do not
assess the potential testimony of Angeal and Harvey in
the abstract, but rather in the context of the theories
presented at trial.21
20
(...continued)
White v. Roper, 416 F.3d 728, 731-32 (8th Cir. 2005) (considering
testimony of the “[s]econd chair” trial counsel in assessing the
performance of lead trial counsel who had died after the trial);
cf. Lewis v. Horn, 581 F.3d 92, 115 (3d Cir. 2009) (“[W]e must first
determine the nature and extent of the investigation that took
place as well as the nature and extent of the communications
that occurred . . . . This task is made difficult by the fact that
Lewis’s trial counsel is deceased[] . . . .”); Callahan v. Campbell,
427 F.3d 897, 933 (11th Cir. 2005) (presuming that counsel, who
had died, exercised reasonable professional judgment where
there was “no evidence of what he did to prepare”).
21
See Atkins v. Zenk, 667 F.3d 939, 945-46 (7th Cir. 2012); Raygoza
v. Hulick, 474 F.3d 958, 963 (7th Cir. 2007) (“[G]eneralities fall
away when we are dealing with an ‘n’ of one: it is the facts of the
particular case, and the particular alibi defense, that matter.”);
Canaan v. McBride, 395 F.3d 376, 385 (7th Cir. 2005) (“Even apart
from these general standards, the conduct of Canaan’s counsel
(continued...)
No. 11-1577 19
In the context of this case, the testimony of Angeal and
Harvey was crucial. The State presented three witnesses
who testified that Mr. Toliver instructed Oliver to shoot
Rogers. Mr. Toliver’s defense was that he had not in-
structed Oliver to shoot her and that he had commented
after the shooting that Oliver “shot the bitch.” 2 2 Angeal
and Harvey were the only two witnesses that would
have corroborated his theory of defense. Angeal’s testi-
mony also would have helped to impeach one of the
State’s witnesses. “[I]n a swearing match” between the
two sides, counsel’s failure to call two useful, cor-
roborating witnesses, despite the family relationship,
constitutes deficient performance. See Goodman v.
Bertrand, 467 F.3d 1022, 1030 (7th Cir. 2006) (indicating
that the testimony of witnesses, who would corroborate
the defendant’s account, was “a crucial aspect of [the]
defense”). This conclusion is all the more true where
counsel did not call any defense witnesses at trial
besides Mr. Toliver.
D. Brady Claim
Mr. Toliver wishes to appeal the district court’s decision
denying relief on his claim of undisclosed exculpatory
evidence. Although he has not filed a cross-appeal, he
may proceed because he does not seek to enlarge his
21
(...continued)
was deficient when viewed in light of the facts and circum-
stances of his case.”).
22
Toliver I, 539 F.3d at 772 (internal quotation marks omitted).
20 No. 11-1577
judgment. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S.
473, 479 (1999) (“Absent a cross-appeal, an appellee
may urge in support of a decree any matter appearing in
the record, although his argument may involve an
attack upon the reasoning of the lower court, but may not
attack the decree with a view either to enlarging his
own rights thereunder or of lessening the rights of his
adversary.” (internal quotation marks omitted)). Although
the argument has been presented adequately, it fails on
its merits.
Mr. Toliver disputes the district court’s finding that
he failed to meet his burden of showing that the State
received the letter from Smith. Because the evidence at
the hearing was in equipoise, the district court’s finding
that Mr. Toliver did not meet his burden was not clearly
erroneous. See Newell v. Hanks, 335 F.3d 629, 632-33 (7th
Cir. 2003) (holding that the district court did not
commit clear error when it determined that petitioner
had not established a Brady violation based on “ambigu-
ous” evidence regarding suppression).
Conclusion
Because the evidentiary hearing before the district
court was proper, and because Mr. Toliver showed that,
in light of the circumstances of his case, his counsel’s deci-
sion not to call two key witnesses was unreasonable, we
affirm the judgment of the district court.
A FFIRMED
8-6-12