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Seventh Circuit’s rare habeas grant notes COA misapplication of Strickland and upbraids state for false claims about the record

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

That confession, per the state court, was that Cook “admitted that he was in Peshtigo and was with Egerson, Sadowski, and Babic [Ed. Note: the other three robbers] at the Walmart and after the home invasion.” The Walmart was where the plot–to rob the occupants of a home believed to have a quantity of marijuana–was set in motion; participants bought gloves, bandannas and duct tape there just before heading to the crime scene. The only question at Cook’s trial was whether he was among those participants, or whether it was a different man, Hall, who rounded out the foursome.

Per the Seventh Circuit, Cook never admitted to being at the Walmart at the crucial time; there was only a claim by an investigator that he thought Cook had said he’d been there at some time. (Slip op. at 11). The court faults the state for “overstat[ing] perhaps the most material facts in the case” in contravention of its “weighty obligation to play entirely straight with facts that affect a person’s liberty.” (Id.).

And, it says, this misrepresentation of the record radically changes the assessment of counsel’s performance–both whether it was adequate, and whether any inadequacy prejudiced Cook. So, for example, Cook’s lawyer didn’t challenge, on hearsay grounds, an investigator’s testimony about phone company records. The records purportedly placed Cook in the right place at the right time to have done the robbery, and also showed calls between him and admitted participants. But the state didn’t have any witnesses who could authenticate the records, and didn’t actually introduce them: the investigator’s testimony about what they said was rank (double) hearsay. The trial judge even raised the matter with Cook’s trial lawyer outside the jury’s presence; he later said he would’ve sustained a hearsay objection. But, our court of appeals said, Cook couldn’t show prejudice, because the phone records weren’t “the most damning evidence” against him. That was, inter alia, the confession–which, again, didn’t happen.

Ah, the famed “most damning evidence” test of Strickland. The Seventh Circuit elsewhere observes the state court’s “troublesome” failure to apply the actual test–which is not whether adequate performance “would have exonerated Hall” but whether counsel’s failings undermine confidence in the jury’s verdict. (Slip op. at 9). Longtime readers will recognize a dreary pattern here.

The court identifies other deficiencies as well–that counsel didn’t locate Hall (the alternate suspect) and didn’t subpoena him; that counsel didn’t bring out, in crossing the testifying accomplices, that they’d received “de facto” immunity for their testimony against Cook; and that counsel withdrew a question about whether Hall had a gun that night. In the end, the cumulative effect of these errors is enough to overcome even the double deference that federal courts owe to state denials of IAC claims: that the “the federal court must give first the defense attorney and then the last state court to rule on the matter ‘the benefit of the doubt.’” Burt v. Titlow, 571 U.S. 12, 15 (2013).” (Slip op. at 20).

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