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Stephen Toliver v. Pollard, 7th Cir No. 11-1577, 8/6/12

seventh circuit court of appeals decisionaffirming habeas grant following remand in 539 F.3d 766 (further case history: here)

Habeas Review – Evidentiary Hearing 

The rule of Cullen v. Pinholster, 131 S. Ct. 1388 (2011), that 2254(d)(1) review is limited to the state-court record, doesn’t apply where the state court didn’t address a component part of the claim (here, deficient performance on an IAC claim). In such a circumstance, an evidentiary hearing may be ordered under 2254(e)(2): 

Pinholster does not apply to Mr. Toliver’s case because the Wisconsin courts never addressed whether Mr. Toliver’s counsel performed deficiently. Pinholster prohibits federal evidentiary hearings only on inquiries that are subject to AEDPA—that is, inquiries that the state courts have addressed. Accordingly, the district court properly received evidence on the unaddressed Strickland prong. See Wiggins v. Smith, 539 U.S. 510, 534 (2003). …

Pinholster itself anticipates this distinction in its discussion of § 2254(e)(2), which provides for federal evidentiary hearings when § 2254(d)(1) does not apply … .

An evidentiary hearing under § 2254(e)(2) was proper in this case because Mr. Toliver diligently tried to develop the facts of his two claims in state court. In his state appeal, the state trial court, which heard the appeal under a provision of Wisconsin law, see Toliver I, 539 F.3d at 771 & n.4, denied Mr. Toliver’s request for an evidentiary hearing. … There was nothing else Mr. Toliver could have done to develop the factual record. Therefore, the federal evidentiary hearing was proper under § 2254. …

Habeas Review – IAC

The court previously determined that Toliver’s allegations of deficient performance, if true, would have been prejudicial (the court declines, under law of the case doctrine, to revisit that conclusion) and that the matter would be remanded for determination of deficient performance. The district court’s subsequent ruling of deficient performance is now affirmed. The victim was shot by Toliver’s brother Oliver, but with Toliver’s gun and in his presence. Toliver wanted counsel to call two witnesses, his wife and his cousin, whose testimony would have “tended to show that Oliver had acted alone when he shot Rogers and that Mr. Toliver did not otherwise intentionally aid and abet Oliver’s murder of Rogers,” 539 F.3d at 771. Counsel had died, and the district court accepted as true Toliver’s testimony at the evidentiary hearing, “that counsel did not call the two witnesses that Mr. Toliver desired because counsel thought the jury would disbelieve them based on their family relationship.”

“So long as an attorney articulates a strategic reason for a decision that was sound at the time it was made, the decision generally cannot support a claim of ineffective assistance of counsel.” Yu Tian Li v. United States, 648 F.3d 524, 528 (7th Cir. 2011). However, we can find nothing in the record to suggest that Mr. Toliver’s attorney could have been making a sound strategic choice when he decided not to call Angeal and Harvey merely because of the family relationship. We do not assess the potential testimony of Angeal and Harvey in the abstract, but rather in the context of the theories presented at trial.21

In the context of this case, the testimony of Angeal and Harvey was crucial. The State presented three witnesses who testified that Mr. Toliver instructed Oliver to shoot Rogers. Mr. Toliver’s defense was that he had not instructed Oliver to shoot her and that he had commented after the shooting that Oliver “shot the bitch.”22 Angeal and Harvey were the only two witnesses that would have corroborated his theory of defense. Angeal’s testimony also would have helped to impeach one of the State’s witnesses. “[I]n a swearing match” between the two sides, counsel’s failure to call two useful, corroborating witnesses, despite the family relationship, constitutes deficient performance. See Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir. 2006) (indicating that the testimony of witnesses, who would corroborate the defendant’s account, was “a crucial aspect of [the] defense”). This conclusion is all the more true where counsel did not call any defense witnesses at trial besides Mr. Toliver.

The court passingly refers to counsel’s unavailability to testify: counsel’s file couldn’t be found, so the state couldn’t shed further light on his decision-making calculus. “Nonetheless, we can assess counsel’s performance without testimony from deceased trial counsel.” Here’s the principle derived by Wisconsin caselaw in this sort of situation, State v. Lukasik, 115 Wis. 2d 134, 340 N.W.2d 62 (Ct. App. 1983):

… If the counsel in question cannot appear to explain or rebut the defendant’s contentions because of death, insanity or unavailability for other reasons, then the defendant should not, by uncorroborated allegations, be allowed to make a case for ineffectiveness. The defendant must support his allegations with corroborating evidence. Such evidence could be letters from the attorney to the client, transcripts of statements made by the attorney or any other tangible evidence which would show the attorney’s ineffective representation. … In other words, we will presume that counsel had a reasonable basis for his actions, and the defendant cannot by his own words rebut this presumption. Such a burden will assure that post-conviction proceedings will not be brought solely on the basis of ineffective counsel when counsel dies or for some other reason becomes unavailable to explain his or her prior actions.

The court here did find some support in the record outside Toliver’s hearing testimony (Toliver complained at a pretrial hearing that counsel “was not following up on leads that Mr. Toliver had given, including witnesses that counsel had not interviewed”). A bit skimpy, perhaps, but corroboration nonetheless and so there may not be any real daylight between the systems on the contours of the test.

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