Davis, Cedell v. Lambert, Gregory ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2838
CEDELL DAVIS,
Petitioner-Appellant,
v.
GREGORY LAMBERT, Warden,*
Respondent-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 1140—James F. Holderman, Judge.
____________
ARGUED OCTOBER 27, 2003—DECIDED NOVEMBER 4, 2004
____________
Before RIPPLE, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. A dispute between two intoxicated
friends turned lethal when Cedell Davis stabbed Donovan
(also known as David) Coleman as they watched football
together one afternoon. Before, during, and after his trial,
Davis implored his counsel to investigate a number of
potential witnesses who would have supported his claim of
*
We have substituted Gregory Lambert, the current warden of
Big Muddy River Correctional Center, the prison where Davis is
incarcerated, for the former warden, Michael L. Holmes.
2 No. 02-2838
self-defense, including the only sober eye-witness to the al-
tercation. Notwithstanding these pleas, his attorneys never
contacted any of the witnesses that Davis identified and
called no defense witnesses at trial. After making his way
through the Illinois courts, Davis filed a pro se petition for
habeas corpus stating a claim of ineffective assistance of
counsel based on his attorneys’ failure to investigate these
witnesses.
The district court rejected his claim as procedurally de-
faulted and further found that the Illinois courts had not
unreasonably applied Strickland v. Washington, 466 U.S.
668 (1984),when they concluded that his attorneys’ failure
to contact these witnesses was reasonable and that he suf-
fered no prejudice as a result. Because we cannot provide a
meaningful review of Davis’s habeas petition and the
Illinois courts’ adjudication of his Strickland claim without
more information regarding the content of these potential
witnesses’ testimony, we vacate the district court’s denial of
Davis’s habeas petition and remand for an evidentiary
hearing on this issue.
I
On September 2, 1996, Davis, Coleman, Lovell Love, and
Moses Perry were watching football at Davis’s apartment in
the Hilliard Homes, a Chicago Housing Authority (CHA)
development. Davis, Coleman, and Love were all intoxicated.
An altercation between Davis and Coleman erupted when
the latter attempted to use illegal drugs in Davis’s apart-
ment. Davis angrily forbade him from doing so, out of con-
cern that the CHA would evict him if his guests used drugs.
Coleman then demanded that Davis repay a $17 debt and
threatened to have Davis ousted from a newspaper sales job
with the Chicago Sun-Times. Davis then demanded that
Coleman leave his apartment, whereupon the argument
quickly escalated into a physical confrontation.
No. 02-2838 3
The parties dispute the details of the fight, but they agree
that it culminated in Davis’s stabbing Coleman once in the
leg and once in the chest. At trial, Davis argued that he
acted out of self-defense. According to Davis, Coleman
reached for his waistband in a threatening manner and then
stabbed Davis with a round-tipped knife, which prompted
Davis to grab a sharp knife. Davis testified that he feared
that Coleman, who was 15 years younger, would overpower
him. Davis stabbed Coleman in the leg, but Coleman con-
tinued to wrestle with Davis, attempting to grab Davis’s
hand holding the sharp knife. As Davis began to fall, he
fatally stabbed Coleman in the chest. At some point imme-
diately before or immediately after Davis stabbed Coleman,
Love awoke from his alcohol-induced slumber and attempted
to separate the parties. Davis instructed Love to call 911
and then unsuccessfully attempted to resuscitate Coleman.
The State argued that Davis could not claim self-defense
because Coleman was unarmed throughout the altercation.
It did so despite the fact that a second blood-stained knife,
which Davis had used earlier in the day to fix his stereo sys-
tem, was recovered from the area in which the fight occurred.
Neither party introduced evidence regarding whose blood or
fingerprints were on the knife. The parties also dispute
Love’s account of the incident. At trial, the State called
Love to testify that Coleman did not have a knife at the
time of stabbing, consistent with Love’s statement to the
police after the incident. On cross-examination, however,
Love conceded that he “probably” told Davis’s neighbor,
Robert Williams, immediately after the incident that Coleman
had attacked Davis with a knife. The State also called as a
witness a police detective who testified that Davis gave a
statement after his arrest stating that Coleman had been
unarmed during the encounter. Davis moved to suppress
this statement, asserting that he was high and incoherent
during the altercation and the interview because he was
still under the influence of a three-day binge of alcohol,
cocaine, and heroin use.
4 No. 02-2838
Davis experienced difficulties with his counsel from the
outset. The state trial court ultimately replaced Assistant
Public Defender David Eppenstein, who first represented
Davis, with Public Defender Charles Buchholz. Prior to and
after his bench trial, Davis vigorously objected to his
attorneys’ failure to investigate potential defense witnesses,
including Perry, the only sober eye-witness to the alterca-
tion. His attorneys presented no witnesses at trial, other
than Davis, who testified against counsel’s advice. The court
ultimately held that Davis had not proved self-defense by a
preponderance of the evidence and that the state had
proved the elements of first-degree murder. It also found,
however, that Coleman’s use or threatened use of drugs in
Davis’s home was a mitigating factor sufficient to establish
“a sudden and intense passion,” which, under Illinois law,
allows for conviction for second-degree murder. See 720
ILCS 5/9-2. The court found Davis guilty of second-degree
murder and sentenced him to 18 years in prison. Davis filed
a pro se motion for a new trial, arguing ineffective assis-
tance of counsel based on his attorneys’ failure to investigate
the witnesses he identified. The court denied his motion.
Davis appealed his conviction, contending that the trial
court erred in failing to investigate his ineffective assistance
of counsel claim. In its order rejecting his direct appeal, the
Illinois Appellate Court acknowledged that “[p]rior to trial,
defendant, who at this time was represented by a different
assistant public defender than the one who had represented
him at the suppression hearing, advised the court that he
had seven witnesses, but his attorney would not even
consider five of them and made no effort to contact them.”
In addition, the court found that at sentencing, Davis had
“reminded the court that he had seven witnesses whom his
attorney refused to present.” The court concluded, without
further explanation, that “under these circumstances the
trial court adequately inquired into the nature of defendant’s
allegation of ineffective assistance of counsel, learned that
No. 02-2838 5
defense counsel’s failure to present the evidence or testimony
was a result of appropriate trial strategy, and properly
found defendant’s allegations without merit.”
Davis then filed a pro se post-conviction petition in state
court, raising a claim of ineffective assistance of counsel
based on his attorneys’ failure to investigate the potential
defense witnesses, whom Davis identified and whose pro-
posed testimony he described in his petition. These witnesses
included: Perry, the only sober eye-witness to the altercation;
Robert Williams, who would have testified that Love had
told him that Davis stabbed Coleman only after Coleman
attacked Davis with a knife; Deana Bradley, who would
have testified to Davis’s “intoxicated and confused” state
when he was taken to the police station following the stab-
bing, contradicting the interviewing detective’s testimony
that Davis was coherent during his interview; Kimberly
Oliver, a character witness and resident of Davis’s building
who would have testified to Coleman’s propensity for vio-
lence; Sharon Pierce, who would have corroborated Davis’s
testimony that the second knife, which Davis claims
Coleman used to threaten him, had been used by Davis to
fix the stereo prior to the fight; Mrs. McKinnely, the CHA
manager for Davis’s building, who would have testified to
Coleman’s destructive and physically abusive nature; and
“certain Chicago police officers,” who would have testified
to a “violent fight” they had with Coleman after they tried
to arrest him for assaulting his girlfriend. Davis explained
that “the reason there are no affidavits included in this Post-
Conviction petition is because the entire complex building
where all of my potential witnesses resided (which is CHA),
has been evac[u]ated and defendant is [u]nable to locate
any of the five witnesses[’] new residency.” In addition to
seeking post-conviction relief, Davis specifically asked that
the court “afford him an evidentiary hearing” on his claims.
The Cook County Circuit Court rejected Davis’s post-con-
viction petition and his Strickland claim, stating in full:
6 No. 02-2838
I find that under Strickland, first of all, the conduct of
his counsel did not rise to the level of ineffective assist-
ance of counsel that it denied Mr. Davis his constitu-
tional rights to a fair trial and his constitutional rights
under the 6th Amendment.
I also find that under the second prong of Strickland
that his allegations, even if this type of evidence was
admitted in, would not change the results.
Therefore, I find that there has been no effective as-
sistance of counsel denial in this case . . . .
Davis appealed to the Illinois Appellate Court, which also
rejected his petition. With respect to his Strickland claim,
the court stated only: “Defendant’s petition was subject to
dismissal at the first stage of proceedings where his claim
of ineffective assistance of trial counsel was res judicata or
otherwise lacking in the requisite support . . . .” Neither
court addressed Davis’s request for an evidentiary hearing
on his Strickland claim. The Illinois Supreme Court sum-
marily denied Davis leave to appeal.
Davis then filed a pro se habeas petition in federal district
court, arguing among other things that his trial counsel was
ineffective for failing to call the seven potential defense
witnesses that he had identified. The court observed that the
Illinois Appellate Court had found that Davis’s Strickland
claim was res judicata and that he had failed to state a
cognizable claim of ineffective assistance of counsel. The
district court concluded that “[s]ince the Illinois rule of res
judicata and failure to state a claim are independent and
adequate state law grounds, Davis’ claims of ineffective
assistance of trial counsel . . . are all dismissed with preju-
dice as procedurally defaulted” (internal citation omitted).
The court nonetheless went on to address the merits of
Davis’s Strickland claim, concluding:
This court finds that the Illinois Appellate Court’s ulti-
mate resolution of this issue [was] not an unreasonable
No. 02-2838 7
application of clearly established federal law. This court
finds that there is no evidence to otherwise suggest that
Davis’ trial counsel was deficient . . . in not tendering
the seven potential witnesses. This court also finds no
evidence demonstrating how any alleged deficiency by
trial counsel prejudiced Davis’s case.
On this basis, the court held that Davis could not obtain
habeas relief based on his Strickland claim.
Davis then filed a notice of appeal, which we construed as
an application for a certificate of appealability. We granted
the certificate of appealability with respect to the questions
whether Davis had procedurally defaulted his Strickland
claim and whether the state court’s resolution of that claim
was a reasonable application of Strickland.
II
The first question we must address is whether Davis has
procedurally defaulted his Strickland claim. If the district
court correctly concluded that the Illinois court’s reliance on
res judicata was an adequate and independent state ground
for rejecting the petition, then Davis’s quest for habeas
corpus relief is over. See Harris v. Reed, 489 U.S. 255, 262
(1989) (“[A]n adequate and independent finding of proce-
dural default will bar federal habeas review of the federal
claim, unless the habeas petitioner can show cause for the
default and prejudice attributable thereto, or demonstrate
that failure to consider the federal claim will result in a fun-
damental miscarriage of justice.” (internal citation and quota-
tion marks omitted)). “We review the district court’s proce-
dural default ruling de novo.” Hadley v. Holmes, 341 F.3d
661, 664 (7th Cir. 2003). Our task here is relatively easy, as
the State has conceded on appeal that neither of these
grounds constitutes a procedural forfeiture and thus neither
precludes federal habeas review of his claim.
8 No. 02-2838
“[W]e have repeatedly held that res judicata is not a bar
to consideration of claims in a federal habeas action.” Moore
v. Bryant, 295 F.3d 771, 776 n.1 (7th Cir. 2002); Patrasso v.
Nelson, 121 F.3d 297, 301 (7th Cir. 1997). In Page v. Frank,
343 F.3d 901(7th Cir. 2003), for example, the state appellate
court “based its disposition of the ineffective assistance of . . .
counsel claim on its conclusion that the merits of the claim
had been resolved previously.” Id. at 907. We explained that
“[s]uch a merit-based determination is not a bar to further
consideration in a federal habeas action; [f]ederal review is
precluded only by procedural forfeitures, not by res judicata
concerns. Consequently, the district court erred in its de-
termination that the issue of ineffective assistance of . . .
counsel was barred by a procedural default.” Id. (internal
citations and quotation marks omitted). Likewise, we have
held that “dismissal for failure to state a claim is a decision
on the merits.” State v. City of Chi., 137 F.3d 474, 478 (7th
Cir. 1998); Paganis v. Blonstein, 3 F.3d 1067, 1071 (7th Cir.
1993) (“[U]nless the judgment provides otherwise, . . . a
dismissal for failure to state a claim under Rule 12(b)(6)[ ] is
an adjudication on the merits.”); Lee v. Vill. of River Forest,
936 F.2d 976, 981 (7th Cir. 1991).
As the Illinois Appellate Court relied exclusively on these
two grounds in rejecting Davis’s Strickland claim, his claim
is not procedurally defaulted and his federal habeas corpus
petition is properly before us. We turn then to the district
court’s alternate ruling on the merits of his claim.
III
Davis seeks habeas corpus relief exclusively on the ground
that he was denied his Sixth Amendment right to effective
assistance of counsel when his attorneys failed to investi-
gate any of the seven potential defense witnesses that he
identified. Our review of Davis’s petition is governed in the
first instance by the Antiterrorism and Effective Death
No. 02-2838 9
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which per-
mits a federal court to issue a writ of habeas corpus only if
the state court reached a decision on the merits of a claim,
and that decision was either “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1); see also (Terry) Williams v. Taylor,
529 U.S. 362, 404-05 (2000). Under Strickland, a defendant
alleging ineffective assistance of counsel must show that
trial counsel’s performance fell below “an objective standard
of reasonableness,” 466 U.S. at 688, and “that there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. Strickland’s first element requires proof that the
petitioner’s trial counsel “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. at 687. Our review of the at-
torney’s performance is “highly deferential” and reflects “a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689 (internal quotation marks
omitted). The second part of the Strickland inquiry requires
a showing of prejudice, that is, proof that “counsel’s errors
were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id. at 687. A “reasonable prob-
ability” of a different result is one “sufficient to undermine
confidence in the outcome.” Id. at 694.
In Davis’s case, we face a preliminary question. The rec-
ord as it now stands is devoid of the kind of information
about the potential testimony of the defense witnesses that
he has identified that we would need in order properly to
assess the conclusions of the Illinois courts under the
Strickland standards. See Matheney v. Anderson, 253 F.3d
1025, 1040 (7th Cir. 2001) (“An adequate record is impera-
10 No. 02-2838
tive to properly evaluate ineffective assistance claims.”); see
also United States ex rel. Hampton v. Leibach, 347 F.3d 219,
245 (7th Cir. 2003) (“[T]he district court could not assess
what impact the exculpatory eyewitnesses likely would have
had upon [the petitioner’s] trial without hearing their
testimony.”); United States ex rel. Cross v. DeRobertis, 811
F.2d 1008, 1016 (7th Cir. 1987) (“When the allegation of the
ineffectiveness of counsel centers on a supposed failure to
investigate, we cannot see how, especially in the context of
a habeas proceeding that collaterally attacks the state court
conviction, the petitioner’s obligation can be met without a
comprehensive showing as to what the investigation would
have produced.”). In particular, we cannot properly review
the Illinois courts’ determination that Davis did not suffer
prejudice due to his counsel’s failure to investigate these
potential witnesses without knowing the content of their
testimony. We must decide, therefore, whether Davis
showed enough to require an evidentiary hearing to flesh
out the record, or if the district court was within its dis-
cretion to decide the case based solely on what was before
it.
The availability of an evidentiary hearing on habeas re-
view is addressed in 28 U.S.C. § 2254(e)(2), which provides
that no such hearing may be held “[i]f the applicant has
failed to develop the factual basis of a claim in State court
proceedings,” subject to several narrow exceptions provided
in § 2254(e)(2)(A) and (B). Davis argues that § 2254(e)(2)
does not bar a hearing in his case because he has satisfied
its requirement that he develop the factual basis of his
Strickland claim before the Illinois courts. In these circum-
stances, his eligibility for a hearing in federal court should
be determined under pre-AEDPA standards. The State ig-
nores this issue in its brief on appeal. It contends only that
Davis’s claim does not come within § 2254(e)(2)(A) and (B).
The Supreme Court has made clear, however, that “[b]y the
terms of its opening clause the statute applies only to
No. 02-2838 11
prisoners who have ‘failed to develop the factual basis of a
claim in State court proceedings.’ ” (Michael Wayne) Williams
v. Taylor, 529 U.S. 420, 430 (2000); see also id. at 435 (“[O]nly
a prisoner who has neglected his rights in state court need
satisfy these conditions.”); Hampton, 347 F.3d at 234. Thus,
we do not apply § 2254(e)(2)(A) and (B) unless Davis comes
within the provision’s opening clause—that is, unless the
failure to develop the factual basis of the claim should be
attributed to Davis.
The Supreme Court has held that “a failure to develop the
factual basis of a claim is not established unless there is
lack of diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel.” Williams, 529 U.S. at
432. “Diligence for purposes of the opening clause depends
upon whether the prisoner made a reasonable attempt, in
light of the information available at the time, to investigate
and pursue claims in state court; it does not depend . . .
upon whether those efforts could have been successful.” Id.
at 435; Boyko v. Parke, 259 F.3d 781, 791 (7th Cir. 2001)
(“The Court emphasized that the focus ought to be on whether
the petitioner was diligent in his efforts to develop the facts,
not on whether the facts were discoverable.”). The Court
further explained that “[d]iligence will require in the usual
case that the prisoner, at a minimum, seek an evidentiary
hearing in state court in the manner prescribed by state
law.” Williams, 529 U.S. at 437.
We look first to see if Davis was diligent in pursuing his
opportunities to develop the necessary facts in the state
courts. Because this is a claim for ineffective assistance of
counsel, the relevant place to look is the state post-convic-
tion proceeding, as these facts are virtually never in the
direct appeal record. In Illinois, “[p]ost-conviction petitions
are adjudicated through a three-stage process set forth by
the Post-Conviction Hearing Act[,] 725 ILCS 5/122-1 et seq.
(West 2002).” People v. Gardner, 810 N.E.2d 180, 184 (Ill.
App. Ct. 2004). “In the first stage, the petition must state
12 No. 02-2838
the gist of a constitutional claim or it will be summarily
dismissed. . . . At the second stage, the petitioner must
make a substantial showing of a constitutional violation to
survive dismissal. Only then will the petition advance to
the third stage, an evidentiary hearing.” Id. (citing People
v. Edwards, 757 N.E.2d 442 (2001)). Under the Illinois Post-
Conviction Hearing Act, a petitioner must attach to his
initial post-conviction petition “affidavits, records, or other
evidence supporting its allegations or shall state why the
same are not attached.” 725 ILCS 5/122-2. As to evidentiary
hearings, the Act provides only that “[t]he court may receive
proof by affidavits, depositions, oral testimony, or other
evidence.” 725 ILCS 5/122-6 (emphasis added). Where a
petitioner seeking post-conviction relief in the Illinois courts
“did not seek an evidentiary hearing . . . or even attempt to
raise the issue,” however, this court has held that he “failed
to develop the factual basis” of a claim in State court
proceedings. Harris v. McAdory, 334 F.3d 665, 670 (7th Cir.
2003).
In his pro se post-conviction petition, Davis requested that
the court grant him an evidentiary hearing, described the
anticipated content of the testimony of each of the seven
witnesses that he had asked his counsel to investigate, and
explained that the reason he had not submitted any affi-
davits from those witnesses was because he was unable to
locate them as a result of the CHA’s decision to move tenants
away from the building where they lived. Davis verified the
facts stated in his petition with a sworn affidavit. This ex-
planation for Davis’s difficulty in locating the five witnesses
who resided in the Hilliard Homes is credible in light of the
CHA’s well-documented difficulties in tracking the tenants
displaced during rehabilitation of its properties. See, e.g.,
Liam Ford, CHA OKs contract to track ex-tenants, CHI.
TRIB., Aug. 22, 2001 (“Resident leaders and their attorneys
have said the CHA has not been able to provide proof it is
keeping track of residents as the residents are relocated from
No. 02-2838 13
public housing developments being demolished.”); see also
Evan Osnos, CHA OKs preservation of Hilliard Homes, CHI.
TRIB., Sept. 14, 2000 (noting that the “Hilliard complex is
now less than half-full”). This explanation is not applicable,
of course, to the unnamed Chicago police officers or
McKinnely, the CHA building manager, whom Davis also
identified as potential witnesses that his attorneys failed to
investigate. We have no reason to upset the conclusion of the
Illinois courts that these latter witnesses were not essential
to Davis’s claim.
Despite Davis’s submissions and his explanation for the
lack of affidavits, the state post-conviction court did not give
him a hearing. Davis, however, did all that he could, and we
therefore conclude that he is not responsible for failing “to
develop the factual basis of his claim in State court” under
§ 2254(e)(2). According to Williams, “the relevant inquiry is
. . . not simply whether the petitioner theoretically could
have discovered the evidence while he was still in the state
forum, but whether he made appropriate efforts to locate
and present that evidence to the state courts.” Hampton, 347
F.3d at 240 (citing Williams, 529 U.S. at 435). It is not
reasonable to characterize Davis’s efforts as less than
diligent. Davis repeatedly implored his various trial attor-
neys, the state trial court, and the state post-conviction court
to assist him in obtaining the testimony of these witnesses. As
we have previously observed, the requirement under
§ 2254(e)(2) that a petitioner develop the factual basis of a
claim should not bar her from obtaining an evidentiary
hearing on habeas corpus review, when the basis of her
Strickland claim is counsel’s failure fully to develop the
record below. See Matheney, 253 F.3d at 1039 (“[J]ustice
dictates that a hearing on whether counsel was constitution-
ally deficient in failing to establish Petitioner’s competency
to stand trial cannot be barred by counsel’s failure to secure
a hearing and develop a record—the very product of the
alleged ineffectiveness.”). Indeed, it would defy logic to deny
14 No. 02-2838
Davis an evidentiary hearing on whether his counsel’s failure
to investigate the witnesses violated Strickland on the
ground that he did not fully present those witnesses’
testimony to the state courts. We therefore find § 2254(e)(2)
no bar to an evidentiary hearing on Davis’s Strickland claim.
Even in the absence of this statutory bar, however, Davis
is not necessarily entitled to an evidentiary hearing. If
§ 2254(e)(2) does not apply, “it is then necessary to evaluate
the request for an evidentiary hearing under pre-AEDPA
standards.” Matheney, 253 F.3d at 1039; Hampton, 347 F.3d
at 244 n.12. Under pre-AEDPA standards, a federal eviden-
tiary hearing is required only if (1) the petitioner alleges
facts which, if proved, would entitle him to relief and (2) the
state courts, for reasons beyond the control of the petitioner,
never considered the claim in a full and fair hearing. Id.; see
also Townsend v. Sain, 372 U.S. 293, 312 (1963) (“Where
the facts are in dispute, the federal court in habeas corpus
must hold an evidentiary hearing if the habeas applicant did
not receive a full and fair evidentiary hearing in a state
court, either at time of the trial or in a collateral proceed-
ing.”), overruled in part by Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992). Applying this test to Davis’s case, we find
that Davis was entitled to an evidentiary hearing on his
Strickland claim.
Davis has alleged facts which, if proved, would entitle
him to habeas corpus relief. Accepting the allegations in
Davis’s own affidavit, the eye-witnesses and impeachment
witnesses Davis wanted to call would have bolstered his
self-defense claim (a complete defense to conviction, it is
important to recall) and confirmed his confused state of
mind at the time of his arrest and confession. It is undis-
puted that none of Davis’s three court-appointed attorneys
investigated any of the witnesses that Davis identified.
Indeed, his attorneys never called any defense witnesses.
Davis’s only witness was himself, taking the stand against
his attorneys’ advice.
No. 02-2838 15
Davis objected to his attorneys’ failure to investigate these
witnesses twice before trial, at sentencing, on direct appeal,
in his pro se post-conviction motion, on appeal of the denial
of his post-conviction motion, and, finally, in his pro se
habeas petition. At his pretrial hearing, Davis informed the
court that his attorney, Assistant Public Defender Eppenstein,
had “omitted key witnesses that could be instrumental in
[his] defense.” Davis also stated: “[T]here is a second eye
witness by the name of Moses that my attorney is aware of
that hasn’t been presented to the Court’s attention.” While
the court said it would hold a hearing on this and Davis’s
other objections to his counsel’s conduct, no such hearing
ever occurred. Rather, the court substituted Public Defender
Buchholz as counsel for Davis. At trial, Davis stated: “Your
Honor, I had several witnesses [Buchholz] didn’t consider.
I had seven. . . . I have a reason why I want them here.”
The court informed Davis that the trial would begin that
day, but that it would require attorney Buchholz to provide
an “explanation why these people are not coming in or what
he has done to get ahold of them or couldn’t get ahold of
them by the next court date.” Buchholz never provided such
explanation during trial. At sentencing, Davis again stated:
“On the issues of witness[es], none of the seven I requested
in my behalf were located or [ ] my [Public Defender] didn’t
choose to call them.” Davis then described the testimony
that witnesses Bradley and Williams would have provided.
While Buchholz acknowledged that Davis “told [him] the
names of witnesses,” his only explanation for his decision
not to call them was the conclusory statement that his
“theory of the case didn’t require the use of those witnesses.”
He never explained how he knew this without even talking
to the witnesses.
The Supreme Court has made clear that counsel’s failure
to investigate potential defenses may constitute deficient
performance under the first prong of Strickland. In Strick-
land itself, the Court stated that “counsel has a duty to
16 No. 02-2838
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
466 U.S. at 691; see Williams, 529 U.S. at 395 (finding
deficient performance where counsel “failed to conduct an in-
vestigation that would have uncovered extensive records
graphically describing Williams’ nightmarish childhood”). Ap-
plying Strickland, we have repeatedly found that counsel’s
failure to investigate potential witnesses can constitute defi-
cient performance. In Washington v. Smith, 219 F.3d 620(7th Cir. 2000), for example, we found that the Wisconsin
trial court had unreasonably applied Strickland in finding
that counsel was not deficient when he investigated only one
of the 14 witnesses identified by the defendant and made only
half-hearted efforts to locate that witness, id. at 630-31.
Emphasizing that “a failure to investigate can certainly
constitute ineffective assistance,” we stated that “[t]elling
a client, who is in custody awaiting trial, to produce his own
witnesses . . . falls painfully short of conducting a reason-
able investigation.” Id. at 631. “[H]ad [the Wisconsin court]
properly applied Strickland, it would have concluded that
[counsel’s] failure to subpoena a hard-to-find witness until
the eleventh hour and his failure to try to ascertain what
exculpatory evidence ‘new’ witnesses might have were
flagrant examples of ineffective assistance.” Id. at 631-32;
see also Hampton, 347 F.3d at 251; Hall v. Washington, 106
F.3d 742, 750 (7th Cir. 1997); Stewart v. Gramley, 74 F.3d
132, 135 (7th Cir. 1996); Harris v. Reed, 894 F.2d 871, 878
(7th Cir. 1990); Chambers v. Armontrout, 907 F.2d 825, 831
(8th Cir. 1990) (en banc).
Of course, it is not sufficient for Davis to show only that
counsel failed to investigate potential witnesses. He must
also “overcome the presumption that, under the circum-
stances, the challenged action might be considered sound
trial strategy.” Strickland, 466 U.S. at 689 (internal quota-
tion marks omitted). Davis’s theory at trial was one of self-
defense. According to Davis, Coleman had threatened to use
No. 02-2838 17
drugs in Davis’s apartment, triggering an argument between
the two. Davis testified that Coleman “pulled a knife that
[Davis] had out, . . . and he charged at [Davis] with it while
[Davis] was at the time attempting to call the police on the
telephone.” Fearing that the younger Coleman would over-
power him, Davis stabbed Coleman in the leg and, as they
wrestled to the ground, again in the chest. The detective
who interviewed Davis testified that he had not seemed
intoxicated when he informed the police that Coleman had
not wielded a knife during the altercation. At trial, how-
ever, Davis denied making the statement and claimed that
he was incoherent, coming off a three-day binge of cocaine,
heroin, and alcohol use.
We consider the relevance of the witnesses that Davis
identified, and that his counsel failed to investigate, against
this backdrop. First, and most troubling, Davis’s attorneys
did not investigate Moses Perry. There were only two eye-
witnesses to the fight between Davis and Coleman: Love,
who was intoxicated and asleep during most of it, and Perry,
who was sober and awake throughout. Davis’s counsel never
contacted Perry, despite the State’s reliance on Love as its
lead prosecution witness and the obvious importance of this
potential testimony to Davis’s self-defense argument.
Second, Davis’s attorneys did not interview Williams. Love
testified, consistent with his statement to the police at the
time of Davis’s arrest, that Coleman did not have a knife in
his hands during the altercation. According to Davis, Williams
would have testified that Love told him immediately after
the incident that Coleman did have a knife in his hands.
Third, Davis’s counsel did not contact Bradley, who allowed
Davis to wear her shoes when he was arrested because he
“was so perplexed and high” that he was barefoot as he left
his apartment. Davis identified Bradley as “the only mutual
party . . . that witnessed [his] condition shortly before [he]
was questioned,” and a person who could have testified to
Davis’s state of mind when he was arrested. Finally, though
18 No. 02-2838
less significantly, Davis’s counsel did not inquire further re-
garding the identity of the other witnesses Davis identified
at the start of trial or make any attempt to investigate their
potential testimony.
As Davis relied exclusively on a theory of self-defense at
trial, his counsel’s failure to interview Perry, the only other
eye-witness to the altercation, is inexplicable. Furthermore,
given that Davis’s defense turned on whether Coleman posed
a serious threat—including whether he wielded a knife—
we are mystified by his attorneys’ decision not to contact
Williams, who would have impeached the State’s lead wit-
ness on this crucial issue, and Bradley, who would have
testified contrary to the police detective regarding Davis’s
mental condition when he informed the police that Coleman
did not have a knife. Counsel’s sole explanation for his fail-
ure to call these witnesses was that his “theory of the case
didn’t require the use of those witnesses.” Counsel’s post hoc
explanation for this failure to investigate is entirely inade-
quate: how could “a theory of the case” that relies on self-
defense “not require” the testimony of the only eye-witness
to the altercation who was sober and alert, as well as that
of other witnesses who would impeach testimony presented
by the State regarding whether the victim was armed?
“Just as a reviewing court should not second guess the
strategic decisions of counsel with the benefit of hindsight,
it should also not construct strategic defenses which counsel
does not offer.” Harris, 894 F.2d at 878; see also Crisp v.
Duckworth, 743 F.2d 580, 584 (1984) (counsel should not be
allowed to shield his failure to investigate simply by raising
claim of “trial strategy and tactics”). Here, neither Davis’s
counsel nor the State has presented anything worthy of be-
ing called a strategic defense. In Hall, we explained that an
attorney’s decision not to present particular witnesses “can
be strategically sound if it is based on the attorney’s
determination that the testimony the witnesses would give
might on balance harm rather than help the defendant. Such
No. 02-2838 19
a determination can rationally be made, however, only after
some inquiry or investigation by defense counsel.” 106 F.3d
at 749 (internal citation omitted). While “[t]his does not
mean that only a scorch-the-earth strategy will suffice, . . .
it does mean that the attorney must look into readily avail-
able sources of evidence.” Id. (internal citation omitted). Yet
Davis’s attorneys never contacted or interviewed Perry,
Williams, or Bradley, although Davis had named them as
defense witnesses and described their potential testimony.
On post-conviction review, neither the circuit court nor
the Illinois Appellate Court provided any explanation as to
why this failure did not render the performance of Davis’s
lawyers deficient. In the absence of any reasonable explana-
tion for the failure of Davis’s counsel to conduct even a
cursory investigation of these witnesses, the state courts’
finding that Davis’s counsel was not deficient might be
found an unreasonable application of the first part of the
Strickland analysis even under the deferential standard of
§ 2254(d)(1). See Hampton, 347 F.3d at 256. It is certainly
enough to satisfy the pre-AEDPA standard.
Davis is entitled to relief, however, only if he is also able
to show that his counsel’s deficient performance prejudiced
his defense in violation of Strickland’s second element. To
establish prejudice, a defendant “must show that there is 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 outcome.” Strickland, 466
U.S. at 694. This is the determination we cannot make
without more detailed knowledge of the content of the testi-
mony of Davis’s proposed witnesses, and on which an eviden-
tiary hearing is necessary. Further development of the record
may ultimately confirm the State’s position that Davis suf-
fered no prejudice from his lawyers’ deficient performance,
but at this point in the proceedings, it is far from clear that
20 No. 02-2838
the state courts did not unreasonably apply Strickland in
finding no prejudice. See Hampton, 347 F.3d at 256.
Assuming that Davis’s witnesses testify as he predicts
they will, he may be able to show a reasonable probability
that the Illinois trial court would have credited his theory
of self-defense and acquitted him if his counsel had intro-
duced these witnesses. Under Illinois law, one is justified in
the use of deadly force in self-defense “only if he reasonably
believes that such force is necessary to prevent imminent
death or great bodily harm to himself or another . . . .” 720
ILCS 5/7-1. Perry’s testimony, for example, would lend
credibility to Davis’s assertion that he “was scared and
feared for [his] life.” In response, the State argues that
Davis’s self-defense argument is crippled by his own testi-
mony at trial that the knife wielded by Coleman during their
struggle “had a round tip.” Davis also testified, however,
that he and Coleman struggled over the butcher knife in
Davis’s hand, with Coleman “grabbing at the knife” as Davis
fell to the ground. According to Davis, he delivered the fatal
blow to Coleman in an attempt to fend off Coleman’s
attempts to seize the butcher knife, an unquestionably lethal
weapon. If Perry’s testimony supports this account, there is
a reasonable probability that a court could find, in accordance
with the Illinois self-defense statute, that Davis “reasonably
believe[d] that such force [was] necessary to prevent . . .
great bodily harm to himself.” See 720 ILCS 5/7-1.
The State also argues that Bradley’s and Williams’s pro-
posed testimony “offered nothing that would have supported”
Davis’s contention that he was engaged in self-defense
when he fatally stabbed Coleman. The Illinois Appellate
Court reached the same conclusion on direct appeal. It had
this to say about Davis’s proffer of Bradley’s and Williams’s
testimony:
[Davis] said nothing about the witnesses’ testimony that
would have supported his theory. Because defendant’s
No. 02-2838 21
mental state after the stabbing was not at issue in de-
termining his guilt and in light of the fact that Love
actually testified at trial, we find that defendant failed
to demonstrate how the witnesses’ testimony would
have changed the outcome of the trial.
But this passage reveals that the court was focusing on the
wrong point. Davis did not want to use their testimony to
prove his mental state after the stabbing. Instead, he wanted
to use it to bolster his claim of self-defense, which was the
only seriously contested issue at trial. Both Bradley’s and
Williams’s testimony was potentially relevant to the valid-
ity of this defense. At trial, the State relied on two key
witnesses in challenging Davis’s self-defense argument.
First, the State called Love, who stated to the police that
Coleman was unarmed when Davis stabbed him. The Illinois
Appellate Court, on direct appeal, found that “in light of the
fact that Love actually testified at trial,” Davis suffered no
prejudice due to his counsel’s failure to interview Williams.
According to Davis, Williams would have testified that Love
told him after the fight that Coleman had a knife in his
hands when he struggled with Davis. While the Illinois
Appellate Court correctly states that the limits of Love’s
testimony were well-exposed at trial, including his being
intoxicated and asleep for most of the altercation, it is
significant that the State relied on Love’s statement to the
police to undermine Davis’s self-defense argument. As this
defense was the crux of Davis’s case, Williams’s testimony
would have been important to impeach Love.
Second, the State relied on the testimony of the police
detective who took Davis’s statement immediately following
his arrest. In light of this testimony, the Illinois Appellate
Court’s statement that the “defendant’s mental state after
the stabbing was not at issue in determining his guilt” is
especially problematic. It was crucial to the question whether
Davis’s statements to the officer were made knowingly and
voluntarily. The detective testified that Davis was not under
22 No. 02-2838
the influence of drugs or alcohol when he made his state-
ment that Coleman was “standing with both his hands palm
open to him” and “had no weapons in his hands” when Davis
stabbed him. This alleged confession sharply undercut
Davis’s self-defense argument. According to Davis, however,
Bradley’s testimony would have established that when the
police arrested him, he was high after a three-day binge of
cocaine, alcohol, and heroin use and thus incapable of making
a coherent statement to the police. Bradley’s testimony, in
combination with other factors suggesting that the de-
tective’s testimony may not be entirely sound, including the
officers’ failure to record Davis’s unsigned statement until a
month later, might have caused the court to question the
validity of the detective’s account of Davis’s statement.
We therefore find that Davis has satisfied the first re-
quirement for an evidentiary hearing under the pre-AEDPA
standard, in that he has alleged facts which, if proved,
would entitle him to relief. We turn now to the second re-
quirement, that “state courts—for reasons beyond the con-
trol of the petitioner—never considered the claim in a full
and fair hearing.” Matheney, 253 F.3d at 1039. Davis has
met this requirement, as he never received a “full and fair”
hearing on his Strickland claim. We have already found, in
the context of § 2254(e)(2), that Davis did everything he was
able to do to develop the factual basis of his claim in the
court proceedings. As Davis adequately developed the
material facts of his claim, he need not show cause and
prejudice as a prerequisite for obtaining an evidentiary hear-
ing. See id. (requiring no showing of “cause and prejudice”
under pre-AEDPA standards for federal evidentiary hearings
after finding § 2254(e)(2) inapplicable because the petitioner
did not “fail to develop” his claim); cf. Spreitzer v. Schomig,
219 F.3d 639, 648 (7th Cir. 2000) (“Under pre-AEDPA law,
if a petitioner has failed to adequately develop material
facts in previous state court proceedings, we again apply the
‘cause and prejudice’ standard to determine whether an
No. 02-2838 23
evidentiary hearing is warranted.”). Rather, he must simply
show that the Illinois courts “never considered the claim in
a full and fair hearing.”
The record of the Illinois courts’ decisions shows that they
did not conduct a “full and fair hearing” of Davis’s Strickland
claim. On post-conviction review, the Illinois Circuit Court,
dispensed with his claim in a mere three sentences, saying
only that “the conduct of his counsel did not rise to the level
of ineffective assistance of counsel that it denied Mr. Davis
his constitutional rights,” and “his allegations, even if this
type of evidence was admitted in, would not change the
results.” The court did not acknowledge Davis’s request for
an evidentiary hearing on his Strickland claim. The Illinois
Appellate Court offered a similarly abbreviated review, dis-
missing his claim as simply “res judicata or otherwise lacking
in the requisite support.”
This cursory review did not constitute a “full and fair hear-
ing.” By ignoring Davis’s request for an evidentiary hearing
and perfunctorily rejecting his Strickland claim, the circuit
court foreclosed development of the record on his claim. It
did so despite the significant concerns regarding counsel’s
performance that we have identified and his explanation for
the absence of affidavits from the witnesses. See Hampton,
347 F.3d at 244. The circuit court also failed to provide “full
and fair” review of Davis’s claim by imposing too high a bar
for a showing of prejudice under Strickland. In denying
Davis’s claim, the court explained that his allegations
“would not change the results” in his case. Strickland, how-
ever, provides that to establish prejudice, “[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. at 694 (emphasis added).
The Court specifically rejected the notion that a defendant
must “show that counsel’s deficient conduct more likely
than not altered the outcome in the case.” Id. at 693. Thus,
in requiring Davis to show that the witnesses’ testimony
24 No. 02-2838
would have changed the result in his case, the circuit court
imposed a standard even more rigorous than that rejected
in Strickland. See Williams, 529 U.S. at 405-06 (“If a state
court were to reject a prisoner’s claim of ineffective assist-
ance of counsel on the grounds that the prisoner had not
established by a preponderance of the evidence that the
result of his criminal proceeding would have been different,
that decision would be ‘diametrically different,’ ‘opposite in
character or nature,’ and ‘mutually opposed’ to our clearly
established precedent because we held in Strickland that
the prisoner need only demonstrate a ‘reasonable probabil-
ity that . . . the result of the proceeding would have been
different.’ ”); cf. Woodford v. Visciotti, 537 U.S. 19, 22, 24 (2002)
(deferring to the California Supreme Court’s rejection of the
petitioner’s Strickland claim because the court had “set[ ]
forth the ‘reasonable probability’ criterion, with a citation
to the relevant passage in Strickland” and it “proper[ly]
fram[ed] the question as whether the evidence ‘undermines
confidence’ in the outcome of the sentencing proceeding”).
The Illinois Appellate Court did not correct this error in
its post-conviction review decision. The Appellate Court’s
dismissal of Davis’s Strickland claim on res judicata grounds
likewise denied Davis a full and fair hearing on his claim.
While a decision on the merits, the court’s reliance on res
judicata serves only to direct us to its decision on direct ap-
peal. On direct appeal, Davis argued that “the trial court
erred in failing to investigate Cedell Davis’ allegation that
his attorney was ineffective by accepting, without question”
counsel’s reason for not contacting Davis’s potential witnesses.
This, of course, is a claim of trial error, not a Strickland
claim. As the Appellate Court did not have Davis’ Strickland
claim before it on direct appeal, its subsequent dismissal of
his claim on res judicata grounds on post-conviction review
effectively denied Davis of any meaningful review of his
claim. In light of all this, we cannot find that Davis had a
full and fair hearing on his Strickland claim. Therefore, he
is entitled to an evidentiary hearing on this claim.
No. 02-2838 25
IV
We cannot properly review Davis’s petition for habeas
corpus relief in the absence of more detailed information
about the anticipated testimony of the witnesses that he
has identified. As Davis has satisfied the requirements for
an evidentiary hearing, we VACATE the district court’s denial
of habeas corpus relief and REMAND for an evidentiary
hearing in accordance with this opinion. Finally, we note
that we appointed counsel to represent Davis on appeal. We
urge the district court on remand to consider seriously any
renewed motion for appointment of counsel.
EVANS, Circuit Judge, dissenting. This, at least to me, is
a fairly simple case. It is undisputed that Davis killed
Coleman by stabbing him in the chest with a knife during
a fight more than 8 years ago. While Coleman went to the
cemetery, Davis went to court charged with murder in the
first degree. He faced a sentence of between 20 to 60 years or
up to life in prison if convicted as charged. But, no doubt
due at least in part to the efforts of his trial counsel (the
one who, if this habeas proceeding is ultimately successful,
must have been constitutionally ineffective) Davis escaped
conviction on the charge of first degree murder and was
found guilty instead of the lesser offense of murder in the
second degree. He received a sentence of 18 years.
Davis says he was denied the effective assistance of coun-
sel because his attorney failed to investigate a self-defense
claim—that Coleman had a knife (one, apparently, with a
“round tip”) when he was killed. The Illinois courts that re-
viewed this claim correctly identified Strickland as the con-
trolling Supreme Court precedent and determined, among
26 No. 02-2838
other things, that Davis failed to meet its “prejudice prong.”
The district court, in denying habeas relief, found, under
AEDPA, that the state courts’ resolution of the issue was
not unreasonable. I agree with that conclusion and would
affirm the denial of Davis’s petition for relief.
Some of the facts, as reported, are bizarre. As the majority
puts it, the Coleman/Davis altercation “erupted” when
Coleman “attempted to use illegal drugs in Davis’s apartment”
and Davis “forbade him from doing so . . . .” This scenario
seems a tad strange as the majority goes on to report (at
page 3) that Davis himself was “high and incoherent” at the
time and “still under the influence of a three-day binge of
alcohol, cocaine, and heroin use.”
-2-
The case against Davis had three components: Coleman’s
dead body; the testimony of Lovell Love, who was in the
apartment during the fight and, as the majority puts it,
“awoke from his alcohol-induced slumber and attempted to
separate the parties”; and a detective who testified about
Davis’s statements after his arrest. The detective testified
that Davis said Coleman was not armed during the encounter.
Love, in his testimony, agreed.
Given this state of affairs, I would say Davis’s lawyer
must have done a fairly good job, for he avoided a conviction
on the more serious charge of first degree murder. Despite
this state of affairs, the majority orders a remand to the
district court to conduct an evidentiary hearing and flesh
out what seven uncalled witnesses (only one of whom, Moses
Perry, was even in the apartment when Coleman was killed)
have to say about the case. This order comes despite the fact
that Davis has never properly proffered (with, for example,
affidavits) what the unheard testimony would be. We also
don’t know if any of the missing seven “witnesses” can even
be found. As I see it, Davis has fallen woefully short of meet-
No. 02-2838 27
ing the strict requirements for getting a rare federal court
evidentiary hearing. The governing statute, 28 U.S.C.
§ 2254(e)(2), provides:
If the applicant has failed to develop the factual basis
of a claim in State Court proceedings, the court shall
not hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on-
(ii) a factual predicate that could not have been
previously discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would be suffi-
cient to establish by clear and convincing evidence
that but for constitutional error, no reasonable fact
finder would have found the applicant guilty of the
underlying offense.
During state postconviction proceedings, Davis failed to
put forth affidavits, or anything similar, to substantiate his
claim about the substance of the missing testimony.
-3-
Finally, as I see it, Davis cannot satisfy the requirement
that the facts underlying his claim of self-defense which
could be developed at the evidentiary hearing would be suf-
ficient to establish by, as the statute requires, “clear and
convincing evidence” that “no reasonable fact finder” would
have found him guilty of second degree murder. For these
reasons, I respectfully dissent.
28 No. 02-2838
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-4-04