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Failure to investigate and call witnesses doesn’t merit habeas relief

Michael Carter v. Stephen Duncan, 7th Circuit Court of Appeals No. 13-2243, 3/30/16

Carter sought habeas relief on the ground his trial lawyer was ineffective for failing to investigate what two defense potential witnesses had to say and failing to present their testimony at his murder trial. The Seventh Circuit holds that although the state court “stumble[d] in some respects” in determining that the failure to present the proffered testimony wasn’t prejudicial, that determination was not unreasonable under AEDPA’s deferential standard of review.

Carter and two other men, Stone and Jones, were charged murdering Gardner during a heated argument. Carter says his lawyer should have called McReynolds and Calmese as witnesses, as they would have testified that Gardner pulled a weapon first, thus supporting a self-defense theory, and that Stone and/or Jones had a gun, but not Carter, and so one or both of them shot Gardner, not Carter. (Slip op. at 10-11, 28-32). The state court assumed trial counsel was deficient for failing to investigate and call the two witnesses, but concluded there was no prejudice. (Slip op. at 12-1332-34).

The state court’s opinion suggests it applied an improper prejudice standard by requiring Carter to show both the reasonable probability of a different outcome, Strickland v. Washington, 466 U.S. 668, 694 (1984), and that his trial was unreliable or fundamentally unfair. (Slip op. at 24-25). As in Floyd v. Hanks, 364 F.3d 84 (7th Cir. 2004), however, a full view of the state court’s decision shows it applied the proper standard by focusing on the impact of the omitted evidence. (Slip op. at 25-27). And while the state court’s prejudice analysis is flawed in one respect, it was not unreasonable:

…. We are uncomfortable with the state court’s conclusion that the testimony is “cumulative” and that the theory of defense was adequately presented at trial and rejected by the jury. In reaching this conclusion and noting specifically whose testimony McReynolds and Calmese would echo, the state court makes no mention of the fact that all of the witnesses it is referencing are witnesses with a preexisting relationship to Mr. Carter and therefore have a potential bias that would have been clear to the jury. By contrast, Calmese was a witness with a relationship to Gardner, and McReynolds appears to be totally dis‐ interested. This is a significant and noteworthy difference that deserved to factor in to the state court’s analysis. ….

Nevertheless, the remainder of the state court’s analysis is sufficient to assure us that, despite this significant oversight, the conclusion that the new testimony did not create a substantial probability of acquittal is not unreasonable. …. (Slip op. at 34-35).

The court’s reasoning (slip op. at 35-37) is fact-specific, and essentially concludes that the testimony of the two witnesses didn’t add information that would have supported Carter’s defense that he was merely present at a shooting perpetrated by Stone and/or Jones. Indeed, Calmese’s testimony tended to undermine Carter’s theory because he both identified Jones as a shooter and, instead of distancing Carter from either of the shooters, tied Carter and Jones as being together that day. As for McReynolds’s testimony, despite his disinterested status, his statement was “woefully lacking in detail” and equivocal, saying more about what he didn’t see than what he did.

Habeas practitioners should take note of a different aspect of this opinion—namely, Judge Easterbrook’s concurrence about the deficient performance prong of the Strickland test in habeas cases. As background, note that it’s clear trial counsel was aware of the witnesses (they were on the witness list) and, as the court notes, trial counsel could have legitimate reasons not to call a witness. (Slip op. at 14, 19-23). But there was no postconviction or habeas evidentiary hearing at which trial counsel testified to why the two witnesses were not called, so there’s nothing in the record showing what, if any, strategic reasons trial counsel might have had. (Slip op. at 10-12). Thus, the state court essentially assumed trial counsel was deficient and went on to the prejudice prong. (Slip op. at 12). That means that under AEDPA, the habeas court can engage in de novo review of deficiency, if indeed the alleged deficiency was prejudicial. (Slip op. at 18).

But Judge Easterbrook doesn’t think that’s the right way to be handling ineffective claims:

…[T]he court applies the circuit’s doctrine that, because the state judiciary bypassed the “performance” component of Strickland.., the federal judiciary’s assessment is unaffected by 28 U.S.C. §2254(d), even though the state judiciary rejected the ineffective‐assistance claim on the merits by concluding that the contested aspects of counsel’s performance did not prejudice Carter. I think that §2254(d) governs both elements of Strickland once the state judiciary decides an ineffective‐assistance claim. Section 2254(d) applies when a state court resolves a “claim” on the merits. Performance and prejudice are distinct issues, to be sure, but there is only one “claim.” See Thomas v. Clements, 797 F.3d 445 (7th Cir. 2015) (opinion respecting the denial of rehearing en banc [of Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015)]). …. (Slip op. at 39).

He notes the state hasn’t asked the court to revisit circuit doctrine on this point, nor did it invoke 28 U.S.C. § 2254(e)(2), “which provides that a petitioner who bypassed an opportunity to build a record in state court can’t complain in federal court about the deficiencies of the record.” (Slip op. at 40). And he criticizes Carter for never having asked for an evidentiary hearing at which trial counsel would explain his or her actions. While he joins the court’s decision on the reasonableness of the state court’s prejudice determination, he “hope[s] for better performance from appellate counsel in future ineffective-assistance litigation.” (Id.).

Is that hope about appellate counsel for the state, in asking the circuit to change its doctrine and/or invoking § 2254(e)(2)? Or appellate counsel for the petitioner, in asking for an evidentiary hearing? We’re not sure. While Wisconsin practitioners usually get such evidentiary hearings during direct appeal under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (1979), we’ve lately noticed (anecdotally, to be sure) more resistance to holding Machner hearings, and not just in Milwaukee County. If that resistance grows and there’s a movement to change the circuit’s doctrine, habeas practice will become that much more difficult.

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