Habeas Procedure – Appellate Jurisdiction
Where a party has filed a timely notice of appeal to a judgment, and the district court subsequently enters an amended judgment nunc pro tunc (“now for then”) conforming language in the original judgment, an amended notice of appeal isn’t necessary to confer appellate jurisdiction:
… The district court’s February 3, 2012 judgment thus had retroactive legal effect back to August 26, 2011, and this appeal remained pending. A new notice of appeal was unnecessary. The State’s January 12, 2012 notice of appeal was therefore effective, and this Court has jurisdiction over this appeal.
A fairly arcane problem, probably of very little moment to the state practitioner absent strong interest in 2254 habeas procedure.
Habeas Review – Ineffective Assistance – Deficient Performance
The state (Illinois) court unreasonably applied Strickland in denying an IAC claim without a hearing. Mosley submitted affidavits indicating that two witnesses, neither of whom were interviewed by trial counsel, would have supported the alibi defense had they been called to testify at trial:
The state court’s analysis was an unreasonable application of Strickland for two reasons. First, on the limited record before the state courts, it was unreasonable to find summarily that trial counsel chose not to call Jones and Taylor as a matter of strategy. According to their affidavits, which were treated as true for purposes of the state courts’ summary disposition, Mosley’s lawyer never even interviewed them to learn what they might say. On that limited record before the state courts, the courts had to assume the lawyer was not aware of the specifics of their potential testimony. To avoid the inevitable temptation to evaluate a lawyer’s performance through the distorting lens of hindsight, Strickland establishes a deferential presumption that strategic judgments made by defense counsel are reasonable. 466 U.S. at 690-91. But the presumption applies only if the lawyer actually exercised judgment. See id. (“strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation”). The consequences of inattention rather than reasoned strategic decisions are not entitled to the presumption of reasonableness. Rompilla v. Beard, 545 U.S. 374, 395-96 (2005); Wiggins v. Smith, 539 U.S. 510, 533- 34 (2003). If, as Jones and Taylor claimed in their affidavits, Mosley’s lawyer never found out what their testimony would be, he could not possibly have made a reasonable professional judgment that their testimony would have been cumulative or bolstered the State’s case and could not have chosen not to call Jones and Taylor as a matter of strategy.
It was also unreasonable to find that Jones’s and Taylor’s testimony would have been cumulative and bolstered the State’s case on a theory of accountability. Evidence is cumulative when it “goes to prove what has already been established by other evidence.” Smith v. Secretary of New Mexico Dep’t of Corrections, 50 F.3d 801, 829 (10th Cir. 1995); Watkins v. Miller, 92 F. Supp. 2d 824, 837 (S.D. Ind. 2000). Whether evidence is cumulative or not is a particular type of problem in evaluating the probative value of evidence, and it requires judgment. Evidence that provides corroborating support to one side’s sole witness on a central and hotly contested factual issue cannot reasonably be described as cumulative. See, e.g., United States v. Vickers, 442 Fed. App’x 79, 84 (5th Cir. 2011); United States v. Stevens, 277 Fed. App’x 898, 900-01 (11th Cir. 2008); Vasquez v. Jones, 496 F.3d 564, 576 (6th Cir. 2007); see generally Arizona v. Fulminante, 499 U.S. 279, 299 (1991) (second defendant’s confession was not merely cumulative of first defendant’s confession where they could reinforce and corroborate each other).
Habeas Review – Ineffective Assistance – Prejudice
The state court misapplied the Strickland prejudice test, by requiring that Mosley show the result would have been different, rather than a reasonable probability the result would have been different. “This is not a mere detail or a quibble over word-smithing,” but, rather, a decision “contrary to” clearly established federal law under § 2254(d)(1), Williams v. Taylor, 529 U.S. 362, 405-06 (2000). (Martin v. Grosshans, 424 F.3d 588, 592 (7th Cir. 2005), followed; Sussman v. Jenkins, 636 F.3d 329 (7th Cir. 2011), distinguished.) Therefore, habeas review of prejudice is de novo, i.e., without any deference to the state court determination of the issue.
So now we examine whether there was a reasonable probability the outcome would have been different, again limiting our review to the evidence before the state court. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “In weighing the effect of counsel’s errors, the court must consider the totality of the evidence before the judge or jury. Consequently, a verdict or conclusion that is overwhelmingly supported by the record is less likely to have been affected by errors than one that is only weakly supported by the record.”Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001); see also Stanley v. Bartley, 465 F.3d 810, 814 (7th Cir. 2006) (“For the issue is not whether [petitioner] is innocent, but whether if he had had a competent lawyer he would have had a reasonable chance (it needn’t be a 50 percent or greater chance) of being acquitted . . . .”) (internal citation omitted).
Given the importance of the potential testimony by the two witnesses; the less-than-overwhelming evidence against Mosley; the clear animus against Mosley by the principal witness against him, and the implausibility of her account – the post-trial affidavits of the absent witnesses, taken at face value, establish prejudice under Strickland.
Habeas Review – Evidentiary Hearing
The habeas court’s conclusion under § 2254(d) that the state court contravened or unreasonably applied federal law often, but not automatically, leads to relief – the court must separately decide under § 2254(a) whether the petitioner is held in violation of the constitution.
The procedures the state court used in reaching its erroneous decision must be considered in deciding how far the federal court’s § 2254(d) finding reaches toward a final decision to grant or deny relief. Where a state court considered conflicting evidence and made factual findings, a district court may be able to decide the § 2254(a) question based on its analysis of the state court’s decision under § 2254(d). What happened here was very different. The state courts rejected Mosley’s post-conviction petition summarily, assuming that the Jones and Taylor affidavits are true. The district court and we agree that the state courts erred in that decision, but that does not mean the Jones and Taylor affidavits are actually true or that they provide the complete picture of the facts relevant to Mosley’s claim of ineffective assistance of counsel.
In other words, the situation is similar to an erroneous grant of summary judgment: genuine issues of material fact indeed exist, so the remedy is to hold a trial (in this context, a hearing) on those issues. But, because the habeas filter imposes a different “look,” the operative principles should be spelled out more precisely: Although Cullen v. Pinholster, 131 S. Ct. 1388 (2011) limits a district court to consideration of the state record in deciding under § 2254(d)(1) whether a state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law . . . ,” when that review yields a determination that the state court’s decision was contrary to or involved unreasonable application of clearly established federal law, the district court may conduct an evidentiary hearing on the habeas petition, as is mandated here. See also footnote 2:
We agree with Mosley that “[t]he power of a court to grant a petition without an evidentiary hearing is unchanged by the Court’s ruling in Pinholster.” But that is beside the point. It is not Pinholster that compels the evidentiary hearing, but the fact that evidence relevant to the merits of Mosley’s claim, and tending to undermine it, was never presented to the state court because of its summary dismissal of the claim. The district court is obliged to consider such evidence, like all other relevant evidence, before ruling on the merits of the claim.
Equally noteworthy, the court’s express cite with approval (and therefore seeming adoption) of Justice Breyer’s partial concurrence and dissent in Pinholster, 131 S.Ct. at 1412:
For example, if the state-court rejection assumed the habeas petitioner’s facts (deciding that, even if those facts were true, federal law was not violated), then (after finding the state court wrong on a (d) ground) an (e) hearing [under § 2254(e)] might be needed to determine whether the facts alleged were indeed true. Or if the state-court rejection rested on a state ground, which a federal habeas court found inadequate, then an (e) hearing might be needed to consider the petitioner’s (now unblocked) substantive federal claim. Or if the state-court rejection rested on only one of several related federal grounds (e.g., that counsel’s assistance was not “inadequate”), then, if the federal court found that the state court’s decision in respect to the ground in deciding violated (d), an (e) hearing might be needed to consider other related parts of the whole constitutional claim (e.g., whether the counsel’s “inadequate” assistance was also prejudicial). There may be other situations in which an (e) hearing is needed as well.
… The district court correctly found that the state court was wrong on two (d) grounds. (The state court’s performance analysis was unreasonable and its prejudice analysis was contrary to clearly established federal law.) So Mosley cleared the § 2254(d) hurdle. That leaves Justice Breyer’s final and most basic question: are the facts alleged in the affidavits indeed true? To answer that question, the district court needed to hold an evidentiary hearing, as it did, but also to make findings on the disputed facts, which it did not.
We decline the invitations to review the testimony from the evidentiary hearing and to make a § 2254(a) determination ourselves. That would require the judges of this court to resolve issues of credibility and to act as triers of fact. We could not do that job on the basis of a written transcript. We instead remand the matter to the district court. Reviewing new evidence and making findings of fact is properly the responsibility of the district court. We must remand and direct the district court to consider the evidence presented in the evidentiary hearing, to hold a new hearing, or both, to determine whether Mosley’s trial counsel was in fact constitutionally ineffective such that Mosley’s petition for habeas corpus should be granted under § 2254(a).
UPDATE. Also see, Miles v. Martel, 9th Cir No. 10-15633, 9/28/12 (“Because the state court was wrong on a (d)(1) ground, an (e) hearing is needed to determine whether Miles’s allegations are in fact true. … Thus, while Pinholster is often read as creating a bright-line rule that evidence from federal courts may never be considered in the course of § 2254(d)(1) review, the majority opinion confirms that § 2254(e)(2) continues to have force and permit federal courts to hold evidentiary hearings in limited circumstances.”).