Malone, Donchii v. Walls, J.R. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3235
D ONCHII M ALONE,
Petitioner-Appellant,
v.
J.R. W ALLS, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 8008—George W. Lindberg, Judge.
____________
A RGUED JANUARY 10, 2008—D ECIDED A UGUST 18, 2008
____________
Before E ASTERBROOK, Chief Judge, and R IPPLE and
R OVNER, Circuit Judges.
R IPPLE, Circuit Judge. Donchii Malone was convicted of
two counts of first degree murder in the Circuit Court of
Cook County, Illinois. After challenging his conviction in
the state courts of Illinois, Mr. Malone filed a petition for
a writ of habeas corpus in the United States District Court
for the Northern District of Illinois. The district court
dismissed Mr. Malone’s petition but granted him a certifi-
2 No. 06-3235
cate of appealability. For the reasons set forth in the
following opinion, we reverse the judgment of the dis-
trict court and remand for further proceedings con-
sistent with this opinion.
I
BACKGROUND
A. Facts and State Court Proceedings
On the morning of July 22, 1986, Larry Lane, LaRoyce
Kendle and Antonio Stewart were in a car outside of
Lane’s apartment building. Michelle Davis and two men,
later identified by witnesses as Phillip Taylor and Mr.
Malone, approached the car. Davis asked the three men
in the car if they wanted to fight. Kendle and Lane exited
the car. Shots were fired, resulting in the deaths of Kendle
and Lane. Stewart, Davis, Taylor and Mr. Malone fled the
scene.
1.
Davis, Taylor and Mr. Malone were arrested and charged
with the murders of Lane and Kendle. Although all three
of the defendants were tried jointly, Mr. Malone exercised
his right to be tried by a jury, while Davis and Taylor opted
for a bench trial.
During the trial, two eyewitnesses, Stewart and Oneida
Tate, testified on behalf of the State. A third eyewitness,
Anthony Villanueva, was called by Taylor’s counsel;
Mr. Malone’s counsel chose not to call Villanueva, and,
No. 06-3235 3
therefore, Villanueva testified outside the presence of
Mr. Malone’s jury.
Stewart, who was fifteen at the time of the events in
question, testified that, while sitting in Lane’s car, Davis
approached the car. Davis asked Lane if “all three of us
did we want to box.” Tr. at 493. Lane responded that they
did not want to fight. Kendle and Lane then exited the
car, and Davis repeated her inquiry. Again, Lane re-
sponded that they did not want to fight. After some fur-
ther discussion, Mr. Malone asked Lane, “[W]hat was
up.” Id. at 496. Lane responded, “What you want to be
up?” Id. at 497. At that point, Mr. Malone said, “I’m going
to show you what’s up”; Mr. Malone backed away from
the car and pulled a revolver from his waist. Id. According
to Stewart, Mr. Malone then pointed the weapon at
Lane’s head and fired twice. Stewart further stated that
Kendle attempted to re-enter the car, but Mr. Malone
also shot him twice. Stewart testified that Davis watched
this scene and laughed and that Taylor pulled a gun and
pointed it at him. At that point, Stewart turned and ran
away. As he ran, Stewart heard two additional shots
ring out.
Later, after he believed that Mr. Malone, Davis and
Taylor were out of the area, Stewart returned to the scene,
yelling “the bitch popped ‘em, the bitch popped ‘em.” Id.
at 528. When the police arrived, Officer Teddy Williams
interviewed Stewart. On cross-examination, Stewart
admitted that, upon first talking with the police, he
identified only Taylor and Davis as being involved in
the shooting. Although he knew Mr. Malone, Stewart
4 No. 06-3235
did not identify Mr. Malone as being involved until two
o’clock that afternoon, after viewing a photo array at the
police station. He identified Mr. Malone in a lineup at
approximately 4:30 p.m.1
The jury also heard the testimony of Oneida Tate. Tate
lived in the apartment overlooking the crime scene. On the
morning of the shooting, Tate was awakened by people
talking on the street below her apartment. She described
one of the men as wearing green hospital pants and a
yellow t-shirt; Tate stated that she did not see this man’s
face. She described the second man as dark-skinned and
wearing a Chicago Cubs hat, a dark jacket and blue jeans.
Although Tate did not know personally the man in the
Cubs hat, she testified that she recognized him as being
from the neighborhood. After she had returned to bed,
Tate heard shots fired. From the window, she saw Davis
running down the street with a gun and two men
running in the opposite direction. She heard Stewart
shout “the bitch popped ‘em.” Tr. at 848. Tate called the
police immediately. She was interviewed later that after-
1
In addition to testifying about the events surrounding the
shooting, Stewart testified that there had been an altercation
on the evening prior to the shooting that involved all of the
parties except Mr. Malone. Specifically, he, Lane and Kendle
were together when Lane “snatched [Taylor’s] hat off” because
the hat displayed a symbol of a rival gang. Tr. at 487. Lane set
the hat on fire and gave it to Stewart. Stewart then threw the
hat into a crowd of people, and it hit Davis on the left side of
her face. Stewart testified that Davis told him that “[s]he was
going to get me.” Id. at 489.
No. 06-3235 5
noon, and, in the evening, picked Mr. Malone out of a
lineup as one of the individuals she had seen prior to the
shooting. At trial, Tate identified Mr. Malone as the
individual she had seen wearing the Cubs hat.
In addition to Stewart and Tate, co-defendant Taylor
called Anthony Villanueva to testify. Villanueva wit-
nessed the events on the morning of July 22, 1986, from
his basement apartment, which looked directly out onto
the scene of the shooting. Villanueva testified that, prior
to the shooting, he had been friends with both Lane and
Kendle. He also stated that Taylor was an “associ-
ate”—someone he would speak to regularly, but whom
Villanueva did not consider to be a “friend.” Tr. at 940-41.
Finally, he testified that he knew Davis by sight as
“Michelle,” but did not know her last name. On the
morning of the shooting, Villanueva was getting ready
for school and observed Davis, Stewart, Lane, Kendle
and two other men, whom he did not know, out on the
street; Davis and Stewart were arguing. Villanueva was
able to see the other two men for approximately two to
three minutes before the shooting. After the shooting,
Villanueva heard Davis say “they got popped” and heard
Stewart say that Davis “didn’t have to do all that.” Id. at
938.2 Villanueva further testified that Taylor was not one
of the two men he had seen. On cross-examination, the
prosecutor asked Villanueva whether he knew a person
2
After the shooting, Villanueva spoke to Detective Jack
Markham. Villanueva told Markham that he had seen Davis
and Stewart running away from the scene after he heard the
gunshots.
6 No. 06-3235
named Donchii Malone; Villanueva responded that he
did not know him, but had heard of him. Id. at 941-42.
Villanueva further stated that he would not “know Donchii
Malone if he saw him” and would not know if the person
“who did the shooting was a person by the name of
Donchii Malone.” Id. at 942. The prosecutor then asked
Villanueva the following question: “Of the six people
that you saw out there at the time of the shooting. Would
you look around the courtroom and tell us if you see
any of those six people in here anywhere in the court-
room?” Id. at 950. In response, Villanueva pointed to
Davis; although Mr. Malone was present in the court-
room at the time, Villanueva did not identify him as one
of the individuals present during the shooting. As noted
above, Villanueva’s testimony was presented outside
the presence of Mr. Malone’s jury; after hearing this
testimony, Mr. Malone’s counsel did not seek to reopen
Mr. Malone’s case to offer Villanueva’s testimony.3
At the conclusion of the evidence and arguments, Mr.
Malone’s co-defendants were acquitted by the court. Mr.
Malone, however, was convicted by the jury.
3
In addition to Villanueva’s testimony, the jury also heard
testimony from Officer Teddy Williams. Officer Williams
testified to his interview with Stewart following the shooting.
During that interview, Stewart described the shooter as
wearing a “Cubs hat, T-shirt and blue jeans” and as having
“brown eyes, black hair, light complexion, [and] no scars,” Tr. at
916; Mr. Malone, however, is not light skinned. Although Mr.
Malone’s counsel did cross-examine the State’s witnesses,
counsel did not use Stewart’s earlier statements to the police
to impeach his in-court testimony.
No. 06-3235 7
During his death penalty hearing, Mr. Malone’s counsel
called Detective Markham and questioned him about
Villanueva’s account of the events surrounding the shoot-
ing. The State’s attorney objected. After an explanation
regarding the facts that Mr. Malone’s counsel sought to
elicit, the court asked the following questions:
Court: Why didn’t you go into those at trial?
Counsel: As a matter of trial strategy, I didn’t go into them
at that time but this conversation that Detective
Markham had with Anthony Villanueva, I be-
lieve, your Honor, is very relevant for the pur-
pose of the death penalty sentencing here.
Court: Well, would it not be of assistan[ce] to the jury if
it was relevant?
Counsel: Well, as a matter of trial strategy, I didn’t ask
Detective Markham during the trial but at this
sentencing hearing, I, your Honor, would like to
put into evidence what Anthony Villanueva
told Detective Markham.
Tr. at 1139. After briefly reviewing Villanueva’s testimony,
the trial court allowed Mr. Malone’s counsel to proceed;
the court stated: “I recognize it is hearsay and I recognize
that, for whatever reason, [counsel] had an opportunity
to cross examine this witness and did not. But I will let
him proceed.” Id. at 1141.
After the hearing, the court sentenced Mr. Malone to
natural life in prison. In rendering its sentence, the court
expressed doubts about the reliability of Stewart’s testi-
mony: “The testimony of the principal witness, Antonio
Stewart . . . is certainly a novel experience for the jury and
8 No. 06-3235
the judge. Here is a fellow who was mixed up with these
gangs, who was certainly high on something that night.
I couldn’t even be sure what time it was when he
saw anything.” Tr. at 1217.
Mr. Malone filed an appeal. In his appeal, Mr. Malone
did not raise any claim of ineffective assistance of trial
counsel; appellate counsel mistakenly believed that the
issue could not be raised on direct appeal.4 The state
appellate court affirmed Mr. Malone’s conviction, and the
Supreme Court of Illinois denied leave to appeal.
2.
Mr. Malone then sought post-conviction relief in state
court. Among the issues raised in the petition were inef-
fectiveness of trial counsel for failing to call Villanueva
and ineffectiveness of appellate counsel for failing to
raise trial counsel’s performance on direct review. The
post-conviction court ruled that appellate counsel had
not provided ineffective assistance. With respect to inef-
fective assistance of trial counsel, the court stated:
Now, no affidavit from Anthony Villanueva. Perhaps
had the evidence been stronger concerning the position
you assert, an affidavit would not be necessary. How-
ever, in order to accept the petitioner’s position,
I would have to infer and read between the lines and
draw inferences. And that’s not appropriate for post
4
In state post-conviction proceedings, appellate counsel filed
an affidavit asserting that he had been ineffective for failing
to raise trial counsel’s ineffectiveness.
No. 06-3235 9
conviction. And so, given that, you should have an
affidavit and you don’t. And I’m not going to accept
that you that your arguments concerning what certain
testimony meant, inferences can be derived is appro-
priate for purposes of this proceeding because I don’t
think that it is.
S.A. 37. The state post-conviction court went on to deny
summarily the ineffective assistance claims and all other
post-conviction claims with the exception of the allega-
tion that Mr. Malone’s due process rights had been vio-
lated through the State’s use of Stewart’s allegedly per-
jured testimony. 5 Following an evidentiary hearing,
however, the court determined that Stewart’s initial
testimony implicating Mr. Malone was credible.
In the appeal following the denial of post-conviction
relief, Mr. Malone raised two issues. The first issue was
stated accordingly:
Donchii Malone was denied the effective assistance
of counsel on direct appeal where appellate counsel
failed to raise trial counsel’s ineffectiveness: (A) in not
investigating or calling Anthony Villanueva, a witness
in co-defendant’s case, as a witness in the defense case-
5
In 1992 and again in 1995, Stewart filed affidavits recanting his
trial testimony and stating that the State had pressured him to
identify Mr. Malone. In a 1999 affidavit, Stewart then recanted
the earlier affidavits saying that those had been executed in
response to threats by Mr. Malone’s associates. However, when
the evidentiary hearing began, Stewart repudiated the 1999
affidavit and testified consistent with the 1992 and 1995 affida-
vits.
10 No. 06-3235
in-chief to rebut the testimony of the state’s star
witness, Antonio Stewart; and (B) in not adducing
testimony of the police officer Teddy Williams, who
also testified at co-defendant’s trial and who would
have contradicted key witness Stewart’s description of
the shooter. Where the evidence was extremely close
and where the state’s case against the defendant
hinged on the untrustworthy testimony of one witness
(Stewart), trial counsel’s lapses clearly affected the
outcome of Malone’s case before his jury.
R.19, Ex. E at I.
In resolving this issue, the appellate court noted that
Mr. Malone was contending “that he was denied the
effective assistance of counsel at trial” by failing to call
Villanueva or Williams. R.19, Ex. H at 6. The court then
observed: “Because this testimony was part of the record
on appeal, defendant could have raised this issue on direct
appeal. Generally, defendant’s failure to raise this issue
on direct appeal would result in waiver. However, the
waiver rule is relaxed when a defendant alleges that failure
to raise an issue on appeal constituted the ineffective
assistance of counsel.” Id. at 6-7 (citations omitted). The
appellate court then correctly identified Strickland v.
Washington, 466 U.S. 668 (1984), as the standard according
to which counsel’s performance should be measured. It
described the standard accordingly:
A defendant must show both a deficiency in counsel’s
performance and prejudice resulting from the alleged
deficiency. People v. Edwards, 195 Ill. 2d 142, 162 (2001),
citing Strickland, 466 U.S. at 687. To show a deficiency
in counsel’s performance a defendant must establish
No. 06-3235 11
that counsel’s performance fell below an objective
standard of reasonableness. Edwards, 195 Ill. 2d at 162-
63. To demonstrate prejudice a defendant must estab-
lish that there is a reasonable probability, that, but
for the alleged errors, the outcome of the proceeding
would have been different. Edwards, 195 Ill. 2d at 163.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the proceed-
ings. Strickland, 466 U.S. at 694.
Id. at 7 (parallel citations omitted).
Turning to “the underlying issue” in the ap-
peal—“whether trial counsel was ineffective for failing to
call Villanueva and Williams”—the appellate court be-
lieved that it was “appropriate to begin our analysis with
an examination of the prejudice prong of the Strickland
analysis.” Id. at 8. It stated:
We have carefully considered the testimony of
Stewart and Tate which identified defendant in light
of the testimony of Villanueva and Williams which
defendant claims was withheld from the jury as the
result of trial counsel’s ineffectiveness. We determine
that absent the alleged deficiencies the jury would
have heard testimony that tended to cast doubt on the
identification. However, we also determine that,
although this additional testimony would have af-
fected the weight accorded the identification testi-
mony of Stewart and Tate, the effect of the alleged
deficiencies was not so significant as to cast doubt on
the outcome of the trial. Therefore, we conclude that
defendant cannot establish that the outcome of the
trial would have been different absent the alleged
12 No. 06-3235
deficiencies of trial counsel. Accordingly, defendant
cannot establish that he was denied the effective
assistance of counsel either at trial or on direct appeal.
Therefore, the trial court did not err when it dismissed
this allegation of defendant’s postconviction petition.
Id. at 9. The Supreme Court of Illinois denied Mr. Malone’s
petition for leave to appeal.
In March 2003, Mr. Malone filed a second, pro se post-
conviction petition. This petition was summarily dis-
missed by the Cook County Circuit Court. The Illinois
appellate court affirmed the dismissal on December 23,
2004.
B. District Court Proceedings
On December 10, 2004, Mr. Malone filed a pro se petition
for a writ of habeas corpus in federal court. The district
court denied eleven of Mr. Malone’s claims, but it granted
an evidentiary hearing on the issues of whether trial
counsel was ineffective for failing to call Villanueva and
whether appellate counsel was ineffective for failing to
raise trial counsel’s failure on direct appeal. See R.27 at 7.
The State moved for reconsideration of this ruling. It
argued that the district court did not have the authority
to hold an evidentiary hearing on the claim of ineffective
assistance of trial counsel because Mr. Malone had failed
to develop the factual basis of his claim in state court;
specifically, Mr. Malone had failed to attach an affidavit
from Villanueva to his state post-conviction petition. In
response to the State’s motion, Mr. Malone offered an
affidavit from the public defender’s investigator stating
No. 06-3235 13
that she had attempted to locate Villanueva during the
state post-conviction proceedings but had been unable to
find him. The district court accepted the State’s argument:
[S]ince in this case the state courts relied on petitioner’s
failure to supply an affidavit in dismissing his ineffec-
tive assistance of counsel claim, petitioner’s explana-
tory affidavit here is simply too late. The court finds
that petitioner failed to develop the factual basis of
his claim in state court, and that this failure to
develop the state court record is attributable to the
petitioner’s lack of diligence.
Since petitioner failed to develop the state court
record on this issue, Section 2254(e)(2) applies. Under
that section, this Court is barred from conducting an
evidentiary hearing unless the petitioner shows that
his claim relies on a new rule of constitutional law or
previously undiscovered facts. Petitioner has not
made such a showing.
R.71 at 2-3 (citations omitted). The district court, however,
granted Mr. Malone a certificate of appealability with
respect to the issue of ineffective assistance of trial counsel
for failing to call Villanueva as a witness. See R.91.6
6
Mr. Malone seeks to expand the certificate of appealability to
include whether his trial counsel was ineffective in failing to
call Officer Williams for the purpose of impeaching Stewart’s
identification of Mr. Malone. We consider this request with
the merits of Mr. Malone’s claims. See infra at p. 37.
14 No. 06-3235
II
DISCUSSION
A. Procedural Default7
7
In the district court, the State argued not only that Mr. Malone
was not entitled to habeas relief, but also that the district court
could not hold an evidentiary hearing on Mr. Malone’s claims
because he had failed to develop the factual record in the state
court as required by 28 U.S.C. § 2254(e)(2). Section 2254 pro-
vides:
(2) 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—
(i) a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(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 sufficient
to establish by clear and convincing evidence that but
for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underly-
ing offense.
28 U.S.C. § 2254(e)(2) (emphasis added).
As noted above, the district court initially ordered an eviden-
tiary hearing on Mr. Malone’s claim of ineffective assistance of
counsel. The State, however, urged the district court to recon-
(continued...)
No. 06-3235 15
7
(...continued)
sider its decision because Mr. Malone had not met the require-
ments of section 2254(e)(2); specifically, he had not attached
an affidavit from Villanueva to his state post-conviction peti-
tion (or otherwise explained his failure to do so) as required by
Illinois law. The district court agreed with the State that the
explanatory affidavit from the post-conviction investigator
filed in support of Mr. Malone’s federal habeas claim was too
late—Mr. Malone should have offered this explanation to the
state court. The court then concluded that, “since in this case
the state courts relied on petitioner’s failure to supply an
affidavit in dismissing his ineffective assistance of counsel claim,
petitioner’s explanatory affidavit filed here is simply too late.”
R.71 at 2-3. Because Mr. Malone failed to develop the state-court
record, and because he did not otherwise meet the stringent
requirements of section 2254(e), the district court vacated the
order granting the evidentiary hearing and denied the petition
on the record before it.
On appeal, the State does not urge us to affirm the district
court’s judgment on this basis because “the last state court to
address the merits of that claim did not reject it based on
petitioner’s failure to append Villanueva’s affidavit,” and,
therefore, the failure did not work a procedural default. See
Respondent’s Br. at 21 n.3. We agree. “If the last state court to
be presented with a particular federal claim reaches the merits,
it removes any bar to federal-court review that might otherwise
have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801
(1991). In the present case, it was the state trial court that refer-
enced the lack of affidavit from Villanueva in ruling on Mr.
Malone’s post-conviction petition. By contrast, the state
appellate court did not hold that Mr. Malone’s post-conviction
petition should have been dismissed because he had failed to
(continued...)
16 No. 06-3235
1.
The State contends that Mr. Malone procedurally de-
faulted his claim of ineffective assistance of trial counsel
because he did not raise it as an “independent claim
during one complete round of state court review,” Respon-
dent’s Br. at 21, namely the review of his initial state post-
conviction petition. Whether a party has procedurally
defaulted his claim is a question of law that we review
de novo. See Lieberman v. Thomas, 505 F.3d 665, 670 (7th
Cir. 2007).8
Section 2254 circumscribes a federal court’s ability to
grant habeas relief to prisoners in state custody. Pertinent
to the present case, a federal court may not entertain a
petition from a prisoner being held in state custody
unless the petitioner has exhausted his available state
remedies prior to seeking federal habeas relief. See 28
7
(...continued)
secure an affidavit from Villanueva (or otherwise explain the
absence of such an affidavit); rather, the appellate court reached
the merits of his ineffective assistance claim. Consequently,
because the state appellate court did not rely on the lack of
affidavit in ruling on Mr. Malone’s claims, the lack of affidavit
cannot operate as a procedural bar to federal habeas review.
See Hampton v. Leibach, 347 F.3d 219, 242 n.9 (7th Cir. 2003).
8
Although the issue of procedural default was raised in the
district court, it did not reach the issue because the court held
that Mr. Malone had failed to develop the factual basis for the
claims as required by 28 U.S.C. § 2254(e), and, without the
benefit of additional evidence, the court could not conclude
that a constitutional violation had occurred. See supra note 7.
No. 06-3235 17
U.S.C. § 2254(b).9 “This so-called exhaustion-of-state
remedies doctrine serves the interests of federal-state
comity by giving states the first opportunity to address
and correct alleged violations of a petitioner’s federal
rights.” Lieberman, 505 F.3d at 669. “Inherent in the
habeas petitioner’s obligation to exhaust his state court
remedies before seeking relief in habeas corpus, see 28
U.S.C. § 2254(b)(1)(A), is the duty to fairly present his
federal claims to the state courts.” Lewis v. Stearnes, 390
F.3d 1019, 1025 (7th Cir. 2004) (citing Baldwin v. Reese, 541
U.S. 27, 29 (2004)). Fair presentment “contemplates that
9
28 U.S.C. § 2254(b) provides:
(b)(1) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies avail-
able in the courts of the State; or
(B)(I) there is an absence of available State corrective
process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of
the State.
(3) A State shall not be deemed to have waived the exhaus-
tion requirement or be estopped from reliance upon the
requirement unless the State, through counsel, expressly
waives the requirement.
18 No. 06-3235
both the operative facts and the controlling legal prin-
ciples must be submitted to the state court.” Williams v.
Washington, 59 F.3d 673, 677 (7th Cir. 1995). It also “re-
quires the petitioner to assert his federal claim through
one complete round of state-court review, either on
direct appeal of his conviction or in post-conviction
proceedings.” Lewis, 390 F.3d at 1025. “A habeas petitioner
who has exhausted his state court remedies without
properly asserting his federal claim at each level of state
court review has procedurally defaulted that claim.” Id.
at 1026.
2.
As noted above, the State maintains that, in his appeal
from the denial of his initial petition for state post-convic-
tion relief, Mr. Malone did not fairly present his claim of
ineffective assistance of trial counsel as an independent
claim. We believe, however, that a fair reading of the
record reveals that Mr. Malone has met this requirement.
To determine whether Mr. Malone fairly presented his
claim, we look at the arguments contained in his brief
before the Illinois appellate court. See Dye v. Hofbauer, 546
U.S. 1, 3-4 (2005) (looking to the claim set forth in the
appellate brief to determine if the claim had been fairly
presented); Baldwin v. Reese, 541 U.S. 27, 32 (2004) (identify-
ing the petition and brief as documents a court should
reference for determining whether the fair presentment
requirement has been met). Mr. Malone’s statement of
points in his brief to the Illinois Appellate Court specifi-
cally mentioned his appellate counsel’s ineffectiveness
No. 06-3235 19
for failing to raise his trial counsel’s ineffectiveness, but
it also specifically detailed the ways in which his trial
counsel was ineffective.
Donchii Malone was denied the effective assistance of
counsel on direct appeal where appellate counsel
failed to raise trial counsel’s ineffectiveness; (A) in
not investigating or calling Anthony Villanueva, a
witness in co-defendant’s case, as a witness in the
defense case-in-chief to rebut the testimony of the
state’s star witness, Antonio Stewart; and (B) in not
adducing testimony of the police officer Teddy Wil-
liams, who also testified at co-defendant’s trial and
who would have contradicted key witness Stewart’s
description of the shooter. Where the evidence was
extremely close and where the state’s case against the
defendant hinged on the untrustworthy testimony of
one witness (Stewart), trial counsel’s lapses clearly
affected the outcome of Malone’s case before his jury.
R.19, Ex. E at I. Furthermore, in the argument section of
his brief, Mr. Malone makes clear that he is seeking
redress of his trial counsel’s failures: “Donchii Malone
respectfully requests that this Honorable Court remand
this case for a hearing on his claim that his trial counsel
was ineffective, notwithstanding the underlying claims
could have been raised on direct appeal, because
appellate counsel was ineffective in failing to raise those
claims of trial counsel’s ineffectiveness on direct appeal.”
Id. at 11. The introduction to the argument section con-
cludes accordingly: “For the reasons advanced below,
Mr. Malone respectfully requests that this Honorable
20 No. 06-3235
Court find ineffective assistance of both trial and
appellate counsel and reverse his case for a new trial, or
in the alternative, to remand the cause for an evidentiary
hearing.” Id. at 13. Mr. Malone then spends the next
five pages of his brief detailing the factual bases of his
claim of ineffective assistance of trial counsel under the
heading: “Trial Counsel’s Failure in Not Investigating or
Calling Anthony Villanueva, a Witness Who Would have
Severely Undermined the State’s Single Identification
Occurrence Witness Was Manifest Incompetence, Not
Sound Trial Strategy. Appellate Counsel’s Failure in Not
Raising This Meritorious Issue Denied Donchii Malone
the Effective Assistance of Counsel on Appeal.” Id. Specifi-
cally, Mr. Malone explained that his trial counsel knew,
prior to the time of trial, that Villanueva was an eyewit-
ness and also that trial counsel had witnessed Villanueva’s
testimony on behalf of Taylor. Mr. Malone then argued that
it was “inexplicable that counsel for Mr. Malone did
nothing to present Villanueva’s crucial testimony to the
Malone jury.” Id. at 15. Mr. Malone also stated that, in the
absence of his counsel’s substandard performance, “there
[wa]s a reasonable probability that the outcome of the
proceeding would [have] be[en] different.” Id. at 17 (citing
Strickland v. Washington, 466 U.S. 668 (1984)). In short,
Mr. Malone set forth not only the factual basis for his
claim, but also the operative legal standard for evaluating
the facts presented.
The State argues that, despite setting forth the factual
basis and legal principles relevant to his claim, Mr. Malone
nevertheless procedurally defaulted his claim of ineffec-
tive assistance of trial counsel because it was imbedded
No. 06-3235 21
in his claim of ineffective assistance of appellate counsel.
The State maintains that our decision in Lewis v. Stearnes,
390 F.3d 1019 (7th Cir. 2004), precludes our consideration
of trial counsel’s ineffectiveness unless Mr. Malone
clearly identified the ineffectiveness of trial counsel as
an independent ground for relief.
We do not believe that Lewis precludes federal review
under the circumstances presented here. In Lewis, the
federal habeas petitioner sought relief based on, inter alia,
a tainted identification procedure and a violation of Batson
v. Kentucky, 476 U.S. 79 (1986). We held, however, that the
claims had been procedurally defaulted because they
had not been presented as independent claims for relief,
but only as examples of counsel’s failures. We explained:
Lewis procedurally defaulted Claims 1 (tainted identi-
fications) and 3 (Batson violation). He did not pursue
either of these claims, as such, on direct appeal or in
the post-conviction proceeding. It is true that during
the post-conviction proceeding, Lewis cited his trial
and/or appellate counsel’s failure to pursue these
claims in support of his claims of attorney ineffective-
ness. However, an assertion that one’s counsel was
ineffective for failing to pursue particular constitu-
tional issues is a claim separate and independent of
those issues. A meritorious claim of attorney ineffec-
tiveness might amount to cause for the failure to
present an issue to a state court, but the fact that the
ineffectiveness claim was raised at some point in
state court does not mean that the state court was
given the opportunity to address the underlying issue
that the attorney in question neglected to raise. . . .
22 No. 06-3235
Id. at 1026. Here, however, it is clear that Mr. Malone raises
ineffective assistance of appellate counsel as a means for
the court to reach the ineffective assistance of trial coun-
sel, i.e., as the cause for failing to raise the ineffective
assistance of trial counsel claim. This intent is evident
from the opening sentences of the argument section of
his brief; he states:
Donchii Malone respectfully requests that this
Honorable Court remand this cause for a hearing on
his claim that his trial counsel was ineffective, notwith-
standing that the underlying claims could have been
raised on direct appeal, because appellate counsel
was ineffective in failing to raise those claims of trial
counsel’s ineffectiveness on direct appeal.
Generally, the issue of whether a criminal defendant
was denied the effective assistance of trial counsel is
waived if not raised on direct appeal. That rule is
relaxed, however, where fundamental fairness re-
quires, such as where the waiver stems from the
incompetency of appellate counsel. . . .
R.19, Ex. E at 11-12. Mr. Malone makes clear that he is
asking the court to redress the failure of his trial counsel,
an issue the court can reach if it determines that his
appellate counsel also was ineffective. His presentation,
therefore, does not suffer from the infirmities that we
identified in the petitioner’s submissions in Lewis.
In sum, Mr. Malone fully set out the factual and legal
bases for his claim of ineffective assistance of trial counsel.
Through his first petition for state post-conviction relief
No. 06-3235 23
and the appeal therefrom, Mr. Malone alerted the state
courts to the nature of his claim and provided the state
courts with the opportunity to address the underlying
issue. Consequently, he fairly presented his federal
claim to the state courts.
3.
Even if we were to conclude that Mr. Malone had not
fairly presented his claim of ineffective assistance of trial
counsel to the state appellate court, we nevertheless
would not be precluded from reviewing Mr. Malone’s
claim here.
Exhaustion, with its corollary requirement of fair pre-
sentment, “serves the interests of federal-state comity by
giving states the first opportunity to address and correct
alleged violations of a petitioner’s federal rights.”
Lieberman, 505 F.3d at 669. In determining whether the
fair presentment requirement has been met, “we assess
whether the petitioner alerted the state court to the
federal nature of his claim in a manner sufficient to allow
that court to address the issue on a federal basis.” Id. at
670. When there is a question as to whether a state has
been sufficiently “alerted,” we evaluate the petitioner’s
submissions to the state courts to determine if a petitioner
“has offered the operative facts and controlling legal
principles of his claim to the state courts.” Id. (citations
omitted). However, when it is clear from the state
court’s decision that it not only recognizes the petitioner’s
federal claim, but also resolves the claim on the merits,
24 No. 06-3235
engaging in our typical assessment is unnecessary. Regard-
less whether the petitioner has satisfied our constructs
for fair presentment, if the state resolves a claim on the
merits, the petitioner’s presentation must have been
sufficient to alert the state court to the nature of the claim.
Such is the case here. The state appellate court recog-
nized that Mr. Malone was asserting a claim of ineffective
assistance of trial counsel: “Defendant first contends that
he was denied the effective assistance of counsel at trial
because this attorney failed to investigate the potential
testimony of, or call, Villanueva or Williams as witnesses.”
R.19, Ex. H at 6. It also recognized that Mr. Malone was
asserting his appellate counsel’s ineffectiveness as a
means to reach the errors of trial counsel. See id. at 6-7
(“Because [Villanueva’s and Williams’] testimony was
part of the record on appeal, defendant could have
raised this issue on direct appeal. Generally, [a] defen-
dant’s failure to raise this issue on direct appeal would
result in waiver. However, the waiver rule is relaxed when
a defendant alleges that the failure to raise an issue on
appeal constituted the ineffective assistance of counsel.”
(internal citations omitted)). After reviewing the standard
for evaluating both ineffective assistance of trial and
appellate counsel, see id. at 7 (citing Strickland, 466 U.S. at
687, 694), the appellate court turned to the facts of the
ineffective assistance of trial counsel claim. The court
then stated:
We have carefully considered the testimony of Stewart
and Tate which identified defendant in light of the
testimony of Villanueva and Williams which
No. 06-3235 25
defendant claims was withheld from the jury as the
result of trial counsel’s ineffectiveness. We determine
that absent the alleged deficiencies the jury would
have heard testimony that tended to cast doubt on the
identification. However, we also determine that,
although this additional testimony would have af-
fected the weight accorded the identification testi-
mony of Stewart and Tate, the effect of the alleged
deficiencies was not so significant as to cast doubt on
the outcome of the trial. Therefore, we conclude
that defendant cannot establish that the outcome of
the trial would have been different absent the alleged
deficiencies of trial counsel. Accordingly, defendant
cannot establish that he was denied the effective
assistance of counsel either at trial or on direct ap-
peal. Therefore, the trial court did not err when it
dismissed this allegation of defendant’s postconviction
petition.
Id. at 9. The opinion of the appellate court makes clear
that it understood that Mr. Malone was asserting ineffec-
tive assistance of trial counsel as a ground for relief, that
it recognized the claim as one grounded in federal con-
stitutional law (and cited appropriate standards) and that
it resolved Mr. Malone’s claims on the merits. Because
the state appellate court took the opportunity to resolve
Mr. Malone’s federal claims on the merits, the interest
behind the exhaustion and fair presentment require-
ments—to provide the state with the first opportunity to
correct constitutional errors—has been served. Conse-
quently, we may proceed to consider Mr. Malone’s
26 No. 06-3235
claim of ineffective assistance of trial counsel on the
merits.10
B. Ineffectiveness of Trial Counsel
Mr. Malone argues that the state appellate court erred
in determining that his trial counsel was not constitution-
ally ineffective. Section 2254 of Title 28 sets forth the
standards according to which we must evaluate Mr.
Malone’s claim. Specifically, we cannot grant the writ
to a petitioner in State custody
10
Before proceeding to the merits, we address one last issue
raised by the State in its brief. The State maintains that the
“Petitioner does not argue in his opening brief that his proce-
dural default can be excused—notwithstanding respondent’s
assertion of procedural default in the district court—and he has
thus forfeited the point.” Respondent’s Br. at 27. In support of
this argument, the State cites Aliwoli v. Gilmore, 127 F.3d 632
(7th Cir. 1997). In Aliwoli, the district court had determined
that the petitioner had procedurally defaulted a claim; in his
opening brief on appeal, however, the petitioner did not argue
that his default should be excused. We, therefore, held: “As in
the district court, Aliwoli does not present any arguments in
his appellate brief relating to cause for his default in state court
or any prejudice resulting therefrom, and he has failed to
establish the necessary prerequisite to our reviewing the merits
of his claim.” Id. at 634-35. Aliwoli has no application to the
case before us. As noted above, the district court did not reach
the State’s exhaustion argument. Because the district court did
not reach the question of exhaustion, there was no reason for
Mr. Malone to argue in his brief on appeal that his alleged
failure to exhaust state remedies should be excused.
No. 06-3235 27
with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudica-
tion of the claim—
(1) resulted in a decision that was 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). Mr. Malone maintains that, in evaluat-
ing his ineffective assistance claim, the state appellate
court’s decision was contrary to clearly established fed-
eral law and also constituted an unreasonable application
of clearly established federal law.
1.
Mr. Malone first argues that the Illinois appellate court’s
adjudication of his ineffective assistance of trial counsel
claim was contrary to clearly established federal law
because the court applied a prejudice standard at odds
with the standard set forth in Strickland v. Washington, 466
U.S. 668 (1984). According to Mr. Malone, the Illinois
appellate court required him to prove that the outcome
of his trial would have been different if Villanueva had
testified, see R.19, Ex. H at 9; however, Strickland only
requires that the petitioner establish a reasonable prob-
ability that the outcome would have been different, see
Strickland, 466 U.S. at 694.
We believe that Mr. Malone’s argument rests on a
cramped reading of the Illinois appellate court’s decision.
The appellate court correctly recited Strickland as the
28 No. 06-3235
standard to be applied and also stated that “[t]o demon-
strate prejudice a defendant must establish that there is a
reasonable probability, that, but for the alleged errors, the
outcome of the proceeding would have been different. A
reasonable probability is a probability sufficient to under-
mine confidence in the outcome of the proceedings.” R.19,
Ex. H at 7 (citations omitted). Because the defendant had
to establish both deficient performance and prejudice,
the appellate court proceeded directly to the prejudice
prong of the Strickland standard—an approach that we
often have followed in our own application of Strickland.
See, e.g., Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir.
2001) (“We need not determine the first, or ‘performance,’
prong of the Strickland test, if we find that counsel’s alleged
deficiency did not prejudice the defendant.” (citing Strick-
land, 466 U.S. at 697)). After evaluating the evidence, the
court determined that,
although this additional testimony would have af-
fected the weight accorded the identification testimony
of Stewart and Tate, the effect of the alleged deficien-
cies was not so significant as to cast doubt on the
outcome of the trial. Therefore, we conclude that the
defendant cannot establish that the outcome of the
trial would have been different absent the alleged
deficiencies of trial counsel. . . .
R.19, Ex. H at 9.
The language of the state appellate court here mirrors
that employed by the state court in Stanley v. Bartley, 465
F.3d 810 (7th Cir. 2006). In that case, the state appellate
court had quoted correctly the standard from Strickland,
No. 06-3235 29
but in its conclusion had stated that “Stanley was not so
prejudiced by any of the alleged mistakes that the out-
come of the trial would have been any different.” Id. at
813. We noted that this statement was an incorrect recita-
tion of the standard. We held, however, that “[h]aving
expounded the well-known standard correctly on the
previous page of its opinion, it is more likely that the court
stated its conclusion imprecisely than that it applied a
different standard,” and the state court was “entitled to
the benefit of the doubt.” Id.
Here, given that the state appellate court correctly
referenced Strickland, recited the Strickland standard
correctly, and employed the methodology outlined in
Strickland, we believe, as we did in Stanley, that “it is
more likely that the court stated its conclusion imprecisely
than that it applied a different standard.” Id. at 813; cf.
Uttecht v. Brown, 127 S. Ct. 2218, 2228 (2007) (noting that a
state court does not have to recite repeatedly a standard
in order to establish that it applied the correct standard
to each alleged constitutional violation). We therefore
reject Mr. Malone’s argument that the state appellate
court’s decision was “contrary to” the ineffective assist-
ance standard articulated in Strickland.
2.
If the state court has identified correctly the governing
law, the habeas petitioner must show that the state court
applied the governing law—in this case Strickland—in
an unreasonable manner. See Hough v. Anderson, 272 F.3d
30 No. 06-3235
878, 889-90 (7th Cir. 2001). To satisfy this statutory re-
quirement, the petitioner must establish that “[t]he state
court’s application of Strickland [was] objectively unreason-
able and not merely erroneous.” Julian v. Bartley, 495
F.3d 487, 494 (7th Cir. 2007) (citing Yarborough v. Gentry,
540 U.S. 1, 5 (2003)). Mr. Malone maintains that the
Illinois appellate court’s application of the Strickland test
to the facts of his case was, in fact, objectively unreason-
able.
a.
We evaluate, therefore, whether the Illinois appellate
court’s conclusion that Mr. Malone was not prejudiced by
his counsel’s failure to call Villanueva is a reasonable
one. “In assessing whether [Mr. Malone] has demonstrated
prejudice, this court must consider the evidence in its
totality.” Wright v. Gramley, 125 F.3d 1038, 1042 (7th Cir.
1997). A verdict supported by weak evidence “is more
likely to have been affected by errors than one with
overwhelming record support.” Williams v. Washington, 59
F.3d 673, 684 (7th Cir. 1995) (internal quotation marks
and citations omitted).
Given the nature of the evidence against Mr. Malone, as
well as his counsel’s failures, we are persuaded not only
that there is a reasonable probability that the outcome
of the trial would have been different had Mr. Malone’s
counsel called Villanueva, but also that the state appellate
court’s decision to the contrary was an unreasonable one.
The state’s case against Mr. Malone was far from iron-clad.
His conviction was not supported by any physical evi-
No. 06-3235 31
dence; it rested wholly on the testimony of two eyewit-
nesses: Stewart and Tate. Of the two eyewitnesses,
Stewart, a member of a rival gang whose weaknesses as a
witness were noted by the trial court, was the only wit-
ness to identify Mr. Malone as the shooter. Although he
knew Mr. Malone at the time that the crime occurred, he
did not immediately identify Mr. Malone as the perpetra-
tor, or even as being present at the scene; he first identi-
fied Mr. Malone in a photo array later that afternoon.
Tate, on the other hand, only placed Mr. Malone at the
scene; she did not witness the shooting, and, therefore, she
could not identify the shooter. Tate testified that, after the
shooting occurred, she heard Stewart shout “the bitch
popped ‘em,” she saw Davis running down the street with
a gun, and she saw two other men (one of whom she
later identified as Mr. Malone), running in the opposite
direction. Tate picked Mr. Malone out of a lineup at
approximately 10:15 on the evening of the shooting.
Although Tate recognized Mr. Malone as being from
the neighborhood, she did not know him personally.
Under circumstances similar to the present case, we
have held that a defendant was prejudiced by his attor-
ney’s failure to investigate and call potentially exculpatory
witnesses. In Hampton v. Leibach, 347 F.3d 219 (7th Cir.
2003), the defendant was convicted in state court of sexual
assault, attempted rape, robbery and aggravated battery
based on the eyewitness testimony of the victims and of a
security guard. The assault had occurred in a dark,
crowded theater during a general melee. Furthermore,
none of the witnesses knew Hampton, had seen him
prior to the incident or had seen him for more than a
32 No. 06-3235
few minutes in the confused atmosphere of the theater.
Nevertheless, the state appellate court determined that
the defendant was not prejudiced by his counsel’s failure
to investigate and call other witnesses who would have
testified that Hampton was sitting with them during the
time of the events in question. In considering this deter-
mination upon habeas review, we stated:
Given the central role that eyewitness testimony
played in this case, the vulnerabilities in the testimony
of the State’s eyewitnesses, and the shortcomings in
human perception that so frequently render eyewitness
testimony less reliable than other types of evidence, we
are more than satisfied that the failure to investigate
exculpatory eyewitnesses likely affected the outcome
of Hampton’s trial. The eyewitnesses that Hampton
has identified, and whose testimony the district court
found credible, would have given the jury a power-
ful reason to doubt Hampton’s culpability.
Id. at 253 (internal quotation marks omitted). We noted
additionally that “[t]wo separate acquittals len[t] support
to this notion.” Id. First, the jury had acquitted Hampton
of the attempted rape of another woman who, “according
to a written report of a line-up[,] . . . had picked Ezra
Garner rather than Hampton as her assailant.” Id. We
noted that “[t]he jury’s decision to acquit Hampton on
that charge, but not others, suggests that the report gave
it reason to doubt the reliability of Martha N.’s identifica-
tion in a way that it did not doubt the other witnesses
against Hampton.” Id. Second, Ronald Mallory, who had
been identified by one of the victims as an assailant,
No. 06-3235 33
“ultimately was acquitted of all charges. . . . In his defense,
Mallory had testified that he did not participate in the
attack, and he called three additional witnesses who said
the same thing (a fourth witness confirmed that he was
not a gang member).” Id. We concluded that “Mallory’s
acquittal demonstrate[d] the importance of exculpatory
eyewitness testimony and suggests that Hampton’s jury
might have been swayed by such testimony.” Id.
The present case bears important similarities to
Hampton. First, eyewitness testimony was the crux of the
prosecution’s case. Additionally, there were “vulnerabili-
ties in the testimony of the State’s eyewitnesses,” id. at
253—at least with respect to identifying Mr. Malone’s role
in the events surrounding the shooting. Finally, as in
Hampton, the record strongly suggests that counsel’s
failure to call Villanueva influenced the jury’s verdict:
Villanueva testified on behalf of Taylor; Taylor was
acquitted. Although Villanueva’s testimony concerning
Mr. Malone was not as compelling as his testimony
concerning Taylor,1 1 we believe that there is a reasonable
probability that the missing testimony made a difference.
However, it is not sufficient that the Illinois appellate
court erred; in order to be entitled to habeas relief, the
11
Villanueva affirmatively testified that Taylor, a person whom
he knew, was not present at the scene. Villanueva, however, did
not know Mr. Malone and did not state affirmatively that Mr.
Malone had not been present at the scene. Instead, when asked
if any of the individuals present at the shooting were in the
courtroom, Villanueva did not identify Mr. Malone. See supra
at 5-6.
34 No. 06-3235
Illinois appellate court’s determination also must be
unreasonable. As in Hampton, we believe that the appel-
late court here “turned a blind eye” both to the nature of
the State’s case and to the importance of Villanueva’s
testimony. 347 F.3d at 256. As noted above, the key
witness for the State was Stewart. However, the state
appellate court either failed to mention or glossed over
Stewart’s principal weaknesses as a witness, namely that
he knew Mr. Malone but failed to identify him at the
scene, and that his contemporaneous utterances (“the
bitch popped ‘em”) suggest that someone other than
Mr. Malone was the perpetrator. As well, although
Villanueva’s testimony in support of Mr. Malone was not
as strong as that for Taylor, Villanueva’s testimony still
would have provided the jury with further doubt as to
Mr. Malone’s involvement and may have provided “the
jury a reason to acquit.” Id. Consequently, we must con-
clude that the state appellate court’s determination that
Mr. Malone was not prejudiced by his counsel’s failure
to call Villanueva was not a reasonable one.
b.
Because we conclude that Mr. Malone was prejudiced by
his counsel’s failure to call Villanueva, we also must
address whether the performance prong of the Strickland
standard has been met, that is, whether counsel’s perfor-
mance “fell below an objective standard of reasonable-
ness.” 466 U.S. at 688. Because the Illinois appellate court
did not reach the question of counsel’s performance, “our
review is not circumscribed by a state court conclusion”
No. 06-3235 35
with respect to this issue, Wiggins v. Smith, 539 U.S. 510,
534 (2003), and we may consider the matter de novo.
We have discussed at length the importance of present-
ing eyewitness and alibi testimony to counter similar
evidence offered by the prosecution. See Hampton, 347
F.3d at 250 (collecting cases). Especially when there are
vulnerabilities in the prosecution’s identification testi-
mony, “[o]pposing testimony from other eyewitnesses . . .
give[s] the jury a qualitatively different and more power-
ful reason to believe that the State’s witnesses [a]re mis-
taken in their identifications.” Id. Despite the importance
of the evidence, however, the record does not suggest a
concrete reason why Mr. Malone’s counsel chose not to
call Villanueva. Indeed, when the trial court questioned
Mr. Malone’s counsel during sentencing concerning his
failure to call Villanueva, Mr. Malone’s counsel merely
stated, without elaboration, that the decision was a
matter of trial strategy.
Villanueva did not appear to have any potential bias or
serious credibility issues that should have given counsel
pause. Additionally, Villanueva’s testimony would not
have opened the door to other potential lines of question-
ing that may have been damaging to Mr. Malone. Cf. Burger
v. Kemp, 483 U.S. 776, 791-92 (1987) (noting that “an
experienced trial lawyer could properly have decided not
to put either petitioner or the psychologist” on the stand
when cross-examination would have exposed damaging
evidence concerning the petitioner).
The State maintains that there are several reasons why
trial counsel, as a matter of sound strategy, could have
36 No. 06-3235
decided not to call Villanueva. The State argues that, if
counsel had called Villanueva, “counsel risked having
Villanueva testify in front of the jury that he was merely
unable to say whether petitioner was present,” and it was
legitimate for counsel not to “reopen the proofs” to
“introduce potentially unhelpful evidence.” Respondent’s
Br. at 33. We believe that the State significantly underesti-
mates the “helpfulness” of Villanueva’s testimony.
Villanueva was a disinterested witness who observed the
events of the morning of July 22 at close distance. Even if
his testimony concerning Mr. Malone were somewhat
equivocal, it still would have been relevant and probative
evidence that tended to cast doubt on Mr. Malone’s
participation in the shooting. See Fed. R. Evid. 401 (“ ‘Rele-
vant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.”).
The only other reason, suggested by the State, as to why
counsel may have decided not to call Villanueva is that
“the prosecution could have impeached Villanueva’s
account of the shooting with his prior statement, given
to the police shortly after the shooting, in which Villanueva
claimed to have been sleeping at the time of the shooting.”
Respondent’s Br. at 33. However, whether Villanueva
arrived at his window immediately before or immediately
after shots were fired does not affect his testimony con-
cerning Mr. Malone—that he did not recognize Mr.
Malone as one of the individuals present at the scene.
As set forth above, in situations where the State’s case
rests on eyewitness testimony, eyewitness testimony on
No. 06-3235 37
behalf of the defendant effectively diffuses the State’s
case and provides the trier of fact with a reason to ac-
quit. Neither Mr. Malone’s counsel nor the State has
offered a compelling reason why such testimony was not
offered in the present case. However, it does not appear
that, at this point in the litigation, there has been an oppor-
tunity for the parties to explore fully whether the first
prong of the Strickland analysis has been met. There is
some evidence of trial counsel’s ineffectiveness; Villanueva
testified that he could identify only one person in the
courtroom as a perpetrator, Michelle Davis, even though
Mr. Malone was sitting there. Faced with this record and
the reality that even wavering testimony by Villanueva
would be helpful to Mr. Malone, the State is left with
conjectural possibilities as to the reasons for counsel’s
failure to call Villanueva. The petitioner, Mr. Malone, has
the ultimate burden of establishing trial counsel’s ineffec-
tiveness, and the record already contains some evidence
of that ineffectiveness. Whether Mr. Malone ultimately
can meet his burden is an issue that should be addressed
in the first instance by the district court after it has en-
sured that both sides have had a full and fair opportunity
to develop the record.
Mr. Malone also faults his counsel for failing to use
Officer Williams’ report to impeach Stewart and for
failing to call Officer Williams to point out the incon-
sistencies in Stewart’s statements. The key discrepancy
that Mr. Malone seeks to expose is that Stewart described
the shooter as having a light complexion; however, Stewart
later identified Mr. Malone as the shooter, and Mr. Malone
has a dark complexion. The remaining description given
38 No. 06-3235
by Stewart to Officer Williams—that the shooter wore a
Cubs hat, a t-shirt and jeans—is consistent with that
given by Tate.
Counsel’s failure to impeach Stewart on this one varia-
tion, standing alone, does not rise to the level of ineffective
assistance, nor is there a reasonable probability that it
affected the outcome of the trial. However, “[w]e previ-
ously have pointed out that prejudice may be based on
the cumulative effect of multiple errors. Although a
specific error, standing alone, may be insufficient to
undermine the court’s confidence in the outcome,
multiple errors together may be sufficient.” Hough, 272
F.3d at 891 n.3 (internal citations omitted). On remand,
the district court certainly should consider whether coun-
sel’s cumulative errors rise to the level of ineffective
assistance of counsel and whether, as a result of those
errors, there is a reasonable probability that the outcome
of the trial would have been different.
Conclusion
For the reasons set forth above, the judgment of the
district court is reversed, and the case is remanded for
further proceedings consistent with this opinion.
R EVERSED and R EMANDED
8-18-08