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Habeas Review – Issue Unaddressed by State Court; Ineffective Assistance of Counsel

Martin Woolley v. Rednour, 7th Cir No. 10-3550, 12/14/12

seventh circuit decision

Habeas Review – Issue Left Unaddressed by State Court

Where, on state (Illinois) postconviction review of an IAC claim, the trial court ruled that counsel’s performance had been deficient but not prejudicial, and the state appellate court affirmed solely on the basis of prejudice without reaching deficient performance, habeas review of counsel’s performance is de novo (that is, independent of the state court). Wiggins v. Smith, 539 U.S. 510 (2003) (“last reasoned opinion” of state court – here, state appellate rather than trial court – is subject to 2254 review; and, failure of that opinion to address issue yields de novo review as to that issue), deemed controlling; Sussman v. Jenkins, 642 F.3d 532, 534 (7th Cir. 2011) also cited.

Recall, though, that surmounting AEDPA’s formidable deferential-review barrier only gets you to another and different obstacle: the deference owed counsel on review of his performance, Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (“Even under de novo review, the standard for judging counsel’s representation is a most deferential one. … Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland‘s deferential standard.”) Turns out that Wooley nonetheless manages to win this battle – but, as you will see, he eventually loses the war.

Habeas – Ineffective Assistance Claim – Expert Testimony

Woolley confessed to multiple killings committed in the course of a tavern robbery, but he recanted at trial, saying he had confessed only to protect the real culprit, his wife. The State countered with a crime scene expert, who testified that Woolley’s recanted version was physically impossible. (The State’s disclosure of the expert was untimely, but counsel didn’t object.) The jury, of course, convicted. Postconviction counsel produced a different expert, whose analysis showed that the State’s theory wasn’t consistent with the physical evidence. Trial counsel performed deficiently in not objecting to the State’s expert and in failing to counter with his own:

Defense counsel’s failure to retain an expert witness, ask for a continuance, or move to bar Ogryzek’s testimony due to untimely disclosure fell below the “objective standard of reasonableness” required by Strickland. 466 U.S. at 688. Even if defense counsel could have initially believed expert testimony unnecessary, the State’s indication that it was shifting its position on the location of the gunshots would have alerted any reasonable attorney to the need to rebut with a defense expert. Though we often defer to an attorney’s calculated decision to forgo a certain trial strategy, it is undisputed that there was no strategic rationale underlying these errors. Stockton testified that the idea of securing an expert witness “never crossed my mind.”

We take pains not to rely on the “harsh light of hindsight” in judging counsel’s performance in a particular case. Bell v. Cone, 535 U.S. 685, 702 (2002). The “failure to investigate a particular lead may be excused if a lawyer has made a ‘reasonable decision that makes particular investigations unnecessary.’” Washington v. Smith, 219 F.3d 620, 631 (7th Cir. 2000) (quoting Strickland, 466 U.S. at 691). But we can perceive no strategic reason why the importance of expert testimony would not have been apparent at the time of trial. See Earls v. McCaughtry, 379 F.3d 489, 494 (7th Cir. 2004). Indeed, defense counsel admitted that his failure to obtain an expert was an oversight. Though an inadvertent omission will not always result in constitutionally deficient performance, the failure to conduct a reasonable investigation may. Harris v. Cotton, 365 F.3d 552, 555-56 (7th Cir. 2004). Here, defense counsel could not adequately represent his client simply by cross-examining the State’s expert. See Miller v. Anderson, 255 F.3d 455, 457 (7th Cir. 2001) (“[C]ross-examination alone could weaken the prosecution’s expert evidence, but not to the point of denying it the essential corroborative value for which the prosecutor was using it.”), judgment modified, 268 F.3d 485 (7th Cir. 2001); cf. Stevens v. McBride, 489 F.3d 883, 896 (7th Cir. 2007) (finding ineffectiveness due to failure to investigate expert “[w]here an expert witness’s opinion is crucial to the defense theory” (internal quotation marks and citation omitted)).

Nonetheless, as suggested above, the court denies relief, on account of lack of prejudice – despite the court’s concession that the inadequately-handled State’s expert “was highly damaging” to Woolley’s cause, and the court’s perception that the circumstances were “frankly suspicious.” Woolley’s expert didn’t so much exculpate him as impeach the State’s expert, with the result that Woolley’s version was elevated from the impossible to the merely possible. The case still hung on Woolley’s credibility, which the court “find(s) numerous reason to question.” The state court found the new expert testimony “unconvincing,” therefore: “Since the Supreme Court has discouraged federal courts from relitigating cases on habeas review, Woolley’s prejudice claim—based on his counsel’s failure to present expert testimony found unconvincing by the state court—appears barred from federal review, especially when it would require that this court second guess the judge’s weighing of evidence and credibility determinations of both side’s experts and the other witnesses, particularly the defendant.” Even with a freer hand, the court wouldn’t be minded to grant relief:

The ineffectiveness of Martin’s defense counsel resulted in a significant trial error. But it is difficult to conceive of a defense that would have overcome the State’s remaining evidence. Martin has proposed none. Instead, he relies entirely on the potential effect of Busch’s testimony. As explained above, the omitted defense theory cannot carry the burden Martin desires. …

We observe that even defendants with weak cases deserve vigorous, effective assistance of counsel. The error in this case is troubling. It highlights the difficulty of evaluating inadequate performance when a defendant’s case is tenuous. Cf. Strickland, 466 U.S. at 710–11 (Marshall, J., dissenting) (“Seemingly impregnable cases can sometimes be dismantled by good defense counsel. . . . A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.”). Nevertheless, a writ of habeas corpus is not a remedy the federal courts have authority to provide in circumstances such as these. See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“The question ‘is not whether a federal court believes the state court’s determination’ under Strickland ‘was incorrect but whether [it] was unreasonable— a substantially higher threshold.’ ”) (quoting Schiro v. Landrigan, 550 U.S. 465, 473 (2007)).

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