Judges: Ripple
Filed: Mar. 30, 2016
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-2243 MICHAEL CARTER, Petitioner-Appellant, v. STEPHEN DUNCAN, Warden, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:10-cv-03783 — Harry D. Leinenweber, Judge. _ ARGUED APRIL 21, 2015 — DECIDED MARCH 30, 2016 _ Before EASTERBROOK and RIPPLE, Circuit Judges, and REAGAN, District Judge. RIPPLE, Circuit Judge. On September 12, 1999, Friday Gard-
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-2243 MICHAEL CARTER, Petitioner-Appellant, v. STEPHEN DUNCAN, Warden, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:10-cv-03783 — Harry D. Leinenweber, Judge. _ ARGUED APRIL 21, 2015 — DECIDED MARCH 30, 2016 _ Before EASTERBROOK and RIPPLE, Circuit Judges, and REAGAN, District Judge. RIPPLE, Circuit Judge. On September 12, 1999, Friday Gard- ..
More
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2243
MICHAEL CARTER,
Petitioner‐Appellant,
v.
STEPHEN DUNCAN, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10‐cv‐03783 — Harry D. Leinenweber, Judge.
____________________
ARGUED APRIL 21, 2015 — DECIDED MARCH 30, 2016
____________________
Before EASTERBROOK and RIPPLE, Circuit Judges, and
REAGAN, District Judge.
RIPPLE, Circuit Judge. On September 12, 1999, Friday Gard‐
ner was shot to death in front of an apartment building on the
south side of Chicago. The State of Illinois charged three men,
including Michael Carter, with Gardner’s murder. Mr. Carter
The Honorable Michael J. Reagan, of the United States District Court for
the Southern District of Illinois, sitting by designation.
2 No. 13‐2243
was tried alongside his brother, Michael Stone, in a single
trial. Both were convicted of murder; Mr. Carter was sen‐
tenced to thirty years’ imprisonment. Following an unsuc‐
cessful state postconviction proceeding, Mr. Carter filed a pro
se petition for habeas corpus in the district court under 28
U.S.C. § 2254. The district court denied relief on each of the
eight grounds presented in his petition and also denied a cer‐
tificate of appealability, see 28 U.S.C. § 2253(c). We granted a
certificate as to a single claim—whether Mr. Carter received
effective assistance of counsel. We also appointed appellate
counsel.
Mr. Carter brings to us an ineffective assistance claim. His
claim turns on the potential effect of the testimony of two wit‐
nesses who were not called in his defense at trial. The Illinois
Appellate Court determined that the proffered testimony
would not have changed the outcome of the trial. Although
the state court’s analysis stumbles in some respects, we nev‐
ertheless must conclude that its decision was not unreasona‐
ble. Accordingly, given our deferential standard of review,
we affirm the district court’s judgment denying habeas relief
to Mr. Carter.
I
BACKGROUND
A.
Gardner was murdered in the course of a heated argument
about the robbery of an apartment occupied by Stone and
other of Mr. Carter’s relatives. Mr. Carter and Stone believed
Gardner to have been responsible.
No. 13‐2243 3
At the time of Gardner’s murder, Mr. Carter and Gardner
each had relatives living on the second floor of a building at
61st and May in Chicago. In one apartment, Gardner’s cousin,
Antonio Phillips, lived with his mother, Rena Phillips, and her
other children. Stone lived next door, in an apartment he
shared with his cousin (and Mr. Carter’s cousin) Felicia An‐
derson, her fiancé, Corey Grant, and their children. Both
Gardner and Mr. Carter—neither of whom lived in the build‐
ing—at times visited their relatives there.
On the afternoon of September 12, 1999, the events culmi‐
nating in Gardner’s murder later that night began to unfold:
a robbery, a search for the robber, a larceny in retaliation, and,
eventually, a heated argument about the robbery that ended
in gunfire. First, two men broke into the apartment occupied
by Mr. Carter’s relatives and robbed Grant at gunpoint. The
robbers took money, jewelry, and marijuana packaged for
sale. Grant was not alone at the time of the robbery; another
of Mr. Carter and Stone’s cousins, Michella Anderson, was
present, as were others, although the apartment’s other occu‐
pants, Felicia Anderson and Stone, were not. One of the rob‐
bers had a gun, and, while no one was shot, Grant was struck
with a baseball bat on his head in the course of the robbery.
After the perpetrators fled, Grant ran next door and began
pounding on the door and shouting about the robbery. Anto‐
nio Phillips emerged with Gardner, who was visiting at the
time, and, according to eyewitnesses, both joined the unsuc‐
cessful effort by Grant and Michella Anderson to chase down
the robbers.
Later, Stone and Felicia Anderson returned home, accom‐
panied by Felicia’s sister, LaTonya Cheeks. At some point af‐
ter learning of the robbery, Stone called Mr. Carter for help in
4 No. 13‐2243
determining the identity of the robbers. Mr. Carter came to
the building with a friend, Cortez Jones. Jones stated that he
had heard from a friend that Gardner had been selling pack‐
aged marijuana at another location and bragging about rob‐
bing someone at 61st and May. Grant, the robbery victim, de‐
nied Gardner’s involvement, stating that Gardner in fact had
tried to chase down the assailants with him. Grant was unable
to convince Stone, Cortez, and Mr. Carter. At some point dur‐
ing the day, Stone acquired a gun and stashed it in a locked
basement storage area in the apartment building.
According to witnesses at Mr. Carter’s murder trial, later
that evening, Mr. Carter, Stone, and Jones broke into Gard‐
ner’s van, which was parked outside the apartment building,
stole his radio, and left. Gardner saw them through a window
and yelled at them to stop and that he had nothing to do with
the earlier robbery. Gardner called his friend, Tommy Gaston,
who arrived sometime later. Gaston and Gardner met down‐
stairs and went to the van, where they observed that the radio
had been stolen. Gardner’s relative, Rena Phillips, and her
boyfriend, Paul Calmese, arrived and began talking with
Gardner and Gaston outside.
While Gardner and the others were still outside,
Mr. Carter and Jones returned, and a heated argument en‐
sued. Stone witnessed the beginning of the exchange from up‐
stairs and went to retrieve the gun from the storage space.
Now armed, he emerged from the adjacent alley and headed
towards the argument on the street. In the ensuing minutes,
Gardner was shot fatally, struck by two bullets in the abdo‐
men. Stone, Jones, and Mr. Carter all fled the scene.
Police officers patrolling the area were in close enough
proximity to view flashes and hear gunshots. Officer
No. 13‐2243 5
Cedric Taylor ran to the scene, arriving within seconds. He
attempted to chase the assailants but lost sight of them and
returned to the scene. Officers immediately began taking
statements from the numerous eyewitnesses.
B.
The State charged Mr. Carter, Stone, and Jones with the
murder of Gardner. In 2002, Mr. Carter and Stone proceeded
to trial together, represented by separate counsel. Jones was
tried in a separate proceeding.
In Mr. Carter and Stone’s trial, the State’s theory was that
two sets of shots were fired: an initial set by Stone and a sec‐
ond set from either Jones or Mr. Carter. It argued that all of the
defendants were armed and that they fled after the fatal shots
were fired and discarded their weapons. The State told the
jury that, under an accountability theory, it was irrelevant
which individual actually had fired the fatal shots.
Stone admitted to shooting Gardner and presented both
self‐defense and defense of others as a justification. Stone con‐
tended that he had seen Gardner point a gun, or attempt to
point a gun, at Mr. Carter, and that only then did Stone fire.
Mr. Carter argued that he was unarmed and was not respon‐
sible for the actions of Stone or Jones.
The eyewitness statements, both to the police and at trial,
varied widely, and several witnesses testified inconsistently
with their prior statements to law enforcement in the days fol‐
lowing Gardner’s murder. Based on those initial statements
given to police and testimony before the grand jury, the State
assembled a witness list to support its case, consisting of law
6 No. 13‐2243
enforcement officers, Lenisha Pearson (Gardner’s then‐girl‐
friend), Grant, Felicia Anderson, Rena and Antonio Phillips,
1
and Cheeks.
Except for the officers, each of the witnesses who testified
at trial had some preexisting relationship either to Gardner or
to the alleged perpetrators. The first group had a relationship
to the victim, Gardner. At trial, Gardner’s relatives, Rena and
Antonio Phillips, testified that the shots fired at Gardner came
from the direction of Mr. Carter and Jones, not Stone. Both
testified that they saw Jones fire shots first, and both testified
that they saw Mr. Carter with a gun. Rena Phillips testified
that she saw Mr. Carter shoot as well. Antonio Phillips testi‐
fied that by the time the second set of shots were fired, he was
running toward the scene from his prior vantage point. Both
testified that they saw Mr. Carter and Jones flee. Neither wit‐
ness said anything about Stone. Pearson, Gardner’s then‐girl‐
friend, testified that she had heard two sets of shots, the first
of which came from Stone, and the second of which came
from either Mr. Carter or Jones. She also testified that she saw
Gardner throughout the exchange and that he did not have a
gun. Gaston, a friend of Gardner’s, testified that he heard, but
did not see, an initial shot. He then saw Jones pull a gun from
his pocket and shoot at Gardner four times, these shots being
louder than the initial single shot. He testified that he then
saw Mr. Carter and Jones flee. He did not see Gardner with a
gun that night.
1 Mr. Carter’s former girlfriend, Sharon Triplett, also testified, but was
called only for the purpose of identifying his vehicle.
No. 13‐2243 7
The second set of State’s witnesses were Mr. Carter’s rela‐
tives and friends—Felicia Anderson, Grant and Cheeks. Alt‐
hough their testimony was part of the State’s case‐in‐chief, it
was more problematic for the prosecution. Felicia Anderson,
Mr. Carter’s cousin, testified that she did not see the shooting,
but that she did see Gardner with a gun and also saw Gaston
remove it from the scene. She was impeached, however, with
her prior signed statement to police and her grand jury testi‐
mony. In those earlier statements, she had said that she was
standing near the shooting, heard shots, turned to face the
scene, and witnessed Mr. Carter pointing a gun at Gardner.
2
She left the scene shouting that Mr. Carter had “shot him.”
At trial, she attempted to explain these discrepancies by
claiming that her earlier statements were based on what oth‐
ers had told her rather than what she personally had ob‐
served.
Grant, Felicia’s fiancé, claimed to have been inside the
apartment during the shooting. Grant testified only that he
saw people running from the scene after hearing shots. He
stated on cross‐examination that he had seen Gardner with a
gun earlier in the day when he had tried to chase down the
people who had robbed Grant.
Cheeks, Felicia’s sister, also testified at trial that she saw
Gardner pull a gun and point it at Mr. Carter and that Stone
shot in defense. She later contradicted that testimony and
stated that she had seen Gardner point his gun in the air ra‐
ther than at Mr. Carter. Also, Cheeks initially claimed that
only Stone shot at Gardner, but on cross she stated that she
heard shots from the area where Jones and Mr. Carter were
2 R.14‐7 at 91.
8 No. 13‐2243
standing. Her prior signed statement and grand jury testi‐
mony were published to the jury. In them, Cheeks stated that
she did not see anything in Gardner’s hands, that Stone had
shot first and fired three times, and that a fourth shot was
fired by either Jones or Mr. Carter.
The physical evidence presented at trial showed that
Gardner was shot twice with .380 caliber bullets, and the par‐
ties stipulated that they had been fired from the same gun.
Three .380 cartridge casings were also recovered from the
scene within a few feet of the blood stain from Gardner’s
body, but it could not be determined if they were from the
same weapon that killed Gardner. No other evidence linked
the bullets or the casings to any particular defendant. More
than one witness, including a police officer stationed nearby
who heard the shots, testified that there was an initial set of
shots and a second set, and the two sounded somewhat dif‐
ferent. Gardner’s autopsy report showed no evidence of
close‐range firing, although multiple witnesses had stated
that Jones and Mr. Carter were within a few feet of Gardner
at the time of his murder.
The attorneys representing Stone and Mr. Carter, respec‐
tively, called only two defense witnesses: Michella Anderson,
a cousin of Stone and Mr. Carter, and Stone himself.
Michella Anderson testified that she saw Gardner pull a gun
and point it in the air. A shooter, whom she could not identify,
entered from the alley and fired. She also testified that, after
Gardner was shot, Gaston retrieved Gardner’s gun, put it in
his car, and drove away. Unlike Felicia Anderson and Cheeks,
Michella Anderson had not made a statement to the police
immediately after the incident and was not called to appear
before the grand jury. She did testify that she had met with
No. 13‐2243 9
attorneys for the State and for the defendants at various
points during the investigation and had informed each of
them that she had seen Gardner with a gun.
Stone testified that he alone shot Gardner and that he did
so only after Gardner pointed a gun at Mr. Carter. He claimed
that he was the only shooter and that he never saw Mr. Carter
with a gun that evening. Mr. Carter did not testify.
In closing arguments, Stone’s attorney focused on his
self‐defense theory and relied in significant measure on
Michella’s testimony that Gardner, the victim, was visibly
armed. Mr. Carter’s attorney focused on the lack of evidence
of any close‐range firing and the evidence that Mr. Carter was
within a few feet of Gardner at the time of the shooting. He
contended that the evidence could support that Jones and
Stone had fired their weapons, but that there had been no ev‐
idence that Mr. Carter knew that Jones was armed or that
Stone was there at all. The State’s attorney countered that it
did not matter who did the shooting because the evidence
demonstrated that all three men were armed. Further, the
State noted that Mr. Carter was responsible for bringing Jones
to the scene, and, following the shooting, Mr. Carter, Stone,
and Jones fled the scene while the other witnesses remained.
The jury found both Stone and Mr. Carter guilty of
first‐degree murder. Jones also was convicted of first‐degree
murder in a separate proceeding. Each was sentenced to
thirty years’ imprisonment.
Mr. Carter and Stone filed a joint direct appeal alleging
multiple points of error, including that trial counsel was inef‐
fective for failing to preserve objections to evidence about the
10 No. 13‐2243
marijuana stolen from the home or to otherwise request a lim‐
iting instruction, as well as other claims not relevant to the
present petition. No other ineffective assistance claims were
raised. In the course of affirming the trial court’s judgment,
the Appellate Court of Illinois noted “that the evidence in this
3
case was not closely balanced.” The Illinois Supreme Court
denied leave to appeal.
C.
In 2005, Mr. Carter and Stone filed a joint pro se petition
for postconviction relief in the Circuit Court of Cook County.
In the petition, they asserted that trial and appellate counsel
had been ineffective. They contended specifically that trial
counsel had been ineffective for failing to call two additional
witnesses, Jeremiah McReynolds and Paul Calmese, failing to
impeach certain witnesses, and emphasizing Stone’s self‐de‐
fense theory over Mr. Carter’s mere presence theory. They
further contended that counsel had failed to present available
evidence to support the claim of self‐defense. Finally, they
claimed that appellate counsel was ineffective for failing to
raise the ineffective assistance claims based on trial counsel’s
performance.
Attached to the petition were several affidavits, including
one from McReynolds. McReynolds stated that he also lived
at 61st and May and that, on the night of the murder, had
heard a commotion, looked outside, and observed the argu‐
ment across the street. During the argument, McReynolds
3 R.14‐1 at 9.
No. 13‐2243 11
“observed Friday Gardner pull an object out from behind his
back and then…heard several shots ring out from the alley‐
4
way.” He identified the shooter as “Man,” a nickname trial
5
witnesses had indicated belonged to Stone. McReynolds
stated that he “did not personally observe anyone else doing
any shooting,” and that he observed Mr. Carter and Jones
6
“scatter in an effort to avoid being shot.” He indicated that
he had shared his account with Cheeks and offered to testify
and that he eventually learned that he had been placed on
Mr. Carter’s witness list. McReynolds’s affidavit concluded:
“Although I was available and in Chicago, Illinois at all times
in which the trial was going on, no lawyer or anyone else from
the court contacted me or called me as a witness about the
7
facts that happened on September 12, 1999.”
In support of the assertion regarding Calmese’s probable
testimony, Mr. Carter attached a police report to his petition.
Following the shooting, Calmese told police that he had been
talking with Gardner when Mr. Carter and Jones arrived and
the argument began. He saw that Jones had a gun during the
argument. He also saw that someone came from the alley and
shot at Gardner, and Jones subsequently also shot at Gardner.
The Illinois circuit court denied the petition and a subse‐
quent motion to reconsider. Mr. Carter appealed to the Illinois
Appellate Court and was represented by the Office of the
4 R.14‐2 at 22.
5 Id.
6 Id.
7 Id.
12 No. 13‐2243
8
State Appellate Defender. The State appellate court affirmed.
It reached the merits of Mr. Carter’s ineffective assistance ar‐
guments and rejected them. It first set forth the familiar two‐
prong deficiency‐and‐prejudice standard under Strickland v.
Washington, 466 U.S. 668 (1984), citing both Strickland and a
state case, People v. Coulter, 815 N.E.2d 899, 905 (Ill. App. Ct.
2004). The court then continued, again citing Coulter: “To
show prejudice, defendant must show that counsel’s deficient
performance rendered the result of the proceeding unreliable
9
or fundamentally unfair.”
In its analysis, the court skipped the deficiency prong and
stated that “even if trial counsel’s failure to call McReynolds
and Calmese to testify fell below an objective standard of rea‐
sonableness, defendant’s claim fails because he is unable to
10
show resulting prejudice.” The court noted that the evidence
in the case was “not close,” and the testimony of McReynolds
and Calmese “would not have been exculpatory and would
have merely been cumulative of the testimony presented by
Felicia Anderson, LaTonya Cheeks, Michell[a] Anderson, and
co‐defendant Stone. Defendant’s theory of defense,” it con‐
cluded, “was presented at trial and corroborated where these
witnesses testified that the victim had a gun and defendant
11
did not.” The court further noted that McReynolds’s affida‐
8 Id. at 157.
9 Id. at 168–69.
10 Id. at 169.
11 Id.
No. 13‐2243 13
vit was “insufficient and unsupportive of defendant’s de‐
fense” because it did not establish that he was unarmed or
12
uninvolved, only that McReynolds had not seen a gun. Fi‐
nally, the court concluded that “the result of defendant’s trial
would have been the same even if Calmese and McReynolds
had testified that defendant was unarmed where the jury was
given” an accountability instruction that focused on whether
a defendant “solicits, aids, abets, agrees to aid, or attempts to
aid the other person in the planning or commission of the of‐
13
fense.” Accordingly, “[a]ny possible testimony from
McReynolds and Calmese that defendant was unarmed
would not have illuminated whether defendant was legally
14
accountable for the actions of his co‐defendants.” The court
closed by noting that, on direct appeal, it had concluded “that
the evidence here was not closely balanced,” and that
Mr. Carter “is unable to show resulting prejudice where the
alleged deficient performance of counsel did not render the
15
proceeding unreliable or fundamentally unfair.”
D.
Mr. Carter next filed a pro se petition for a writ of habeas
corpus in federal district court, seeking relief on eight sepa‐
rate grounds. Included among those claims were a free‐stand‐
ing actual innocence claim, claims related to a denial of a fair
12 Id. at 169–70.
13 Id. at 170 (internal quotation marks omitted).
14 Id.
15 Id. at 171.
14 No. 13‐2243
trial, claims related to excessiveness of sentence, and the claim
regarding ineffectiveness of trial counsel for failure to call
McReynolds and Calmese. The district court determined that
all of the claims, save for ineffective assistance, were either
procedurally defaulted or not cognizable on federal habeas
review and rejected them. Turning to the only non‐defaulted,
cognizable claim, the court held that Mr. Carter had failed to
“overcome the presumption that counsel’s decision not to call
16
these witnesses was reasonable.” The record made clear that
counsel was aware of McReynolds and may have decided not
to call him because of his significant criminal record. Counsel
may also have decided that the testimony of either witness
was duplicative of other testimony, or was “unavailing be‐
cause Carter was charged under an accountability theory,
meaning that he could be found legally accountable for his
17
co‐defendant’s actions even if he did not fire at Gardner.”
The court then determined that, even if performance was de‐
ficient, Mr. Carter could not demonstrate prejudice because a
self‐defense theory had been presented to the jury and re‐
jected, and because at least six witnesses had testified that
Mr. Carter, Jones, or Stone fired at Gardner, which would
support the State’s accountability theory. The district court
denied relief and denied a certificate of appealability.
We issued a certificate of appealability, limited to the inef‐
fective assistance of counsel claim. We also recruited counsel
and specifically directed briefing on trial counsel’s failure to
call McReynolds and Calmese.
16 R.26 at 21.
17 Id.
No. 13‐2243 15
II
DISCUSSION
Mr. Carter contends that he was denied his Sixth Amend‐
ment right to counsel. Specifically, he argues that his trial
counsel rendered ineffective assistance by failing to investi‐
gate and to call McReynolds and Calmese. He also contends
that the Illinois Appellate Court applied an incorrect legal
framework to this claim by requiring him to demonstrate that
counsel’s alleged errors rendered his trial “unreliable or fun‐
damentally unfair.” The State counters that the state courts
reasonably and appropriately applied the Strickland standard.
In any event, the State adds, Mr. Carter’s claims fail on de
novo review. It argues that Mr. Carter waived the portion of
his claim relating to a failure to investigate McReynolds and
Calmese, rather than a failure to call. Finally, it contends that
there is no reasonable probability that the outcome of
Mr. Carter’s trial would have been different with their testi‐
mony. We address these issues in turn.
A.
Our standards of review in this context are complex but
familiar. We review the district court’s decision denying ha‐
beas relief de novo. Smith v. Gaetz, 565 F.3d 346, 351 (7th Cir.
2009). Under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), if a claim “was adjudicated on the
merits in State court proceedings,” federal review of the con‐
viction is highly circumscribed. 28 U.S.C. § 2254(d). Focusing
on the decision of the last state court to address a given claim
on the merits, Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), we
ask only whether the state adjudication “resulted in a decision
16 No. 13‐2243
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Su‐
preme Court of the United States” or “resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed‐
ing,” 28 U.S.C. § 2254(d)(1)–(2).
“Under the ‘contrary to’ clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law
or if the state court decides a case differently than [the Su‐
preme] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000); see also
Bell v. Cone, 535 U.S. 685, 694 (2002) (“A federal habeas court
may issue the writ under the ‘contrary to’ clause if the state
court applies a rule different from the governing law set forth
in [Supreme Court] cases… .”).
When, by contrast, the state court has articulated properly
the governing legal standard, a petitioner still may succeed by
showing that the State’s application of that standard was “un‐
reasonable.” Williams, 529 U.S. at 411. Under this standard,
We may not issue a writ “simply because [we]
conclude[]…that the relevant state‐court deci‐
sion applied clearly established federal law er‐
roneously or incorrectly. Rather, that applica‐
tion must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 411 (2000); Rastafari v. An‐
derson, 278 F.3d 673, 688 (7th Cir. 2002). This de‐
manding standard allows us to issue a writ only
in cases “where there is no possibility fair‐
minded jurists could disagree that the state
court’s decision conflicts with [Supreme Court]
No. 13‐2243 17
precedents. It goes no farther.” Harrington [v.
Richter, 562 U.S. 86, 102 (2011)].
Carter v. Butts, 760 F.3d 631, 635 (7th Cir. 2014) (alterations in
original) (parallel citations omitted).
With these rules in mind, we now turn to Mr. Carter’s ar‐
guments on the merits.
B.
Mr. Carter now raises a single claim of ineffective assis‐
tance based on his attorney’s failure to investigate and call
McReynolds and Calmese to testify at his trial. In his view,
both possible witnesses offered testimony in his favor that
was unique in substance, quality, or source, i.e., because it
came from a witness without a previous tie to Mr. Carter or
his associates. In the case of McReynolds, the proffered testi‐
mony both came from a totally disinterested witness and un‐
dermined the State’s case. And unlike the other witnesses
who gave testimony favorable to Mr. Carter, McReynolds was
not vulnerable to impeachment with prior inconsistent state‐
ments to law enforcement. In the case of Calmese, he was con‐
nected to Gardner, and would have been the only witness so
situated who could have corroborated unequivocally
18
Mr. Carter’s claims that he was not a shooter.
18 Rena’s testimony was equivocal on the shooter issue. She identified
Mr. Carter as one of the shooters, but said that she often “mixed up”
Mr. Carter and Stone. R.14‐6 at 178. Antonio identified Jones as a shooter,
but claimed to have seen Mr. Carter with a weapon as well, and stated that
additional shots were fired.
18 No. 13‐2243
The framework of our analysis of Mr. Carter’s Sixth
Amendment claim is Strickland v. Washington, 466 U.S. 668
(1984). Under Strickland’s familiar two‐prong test, we begin
with the issue of deficiency, i.e., whether “counsel’s represen‐
tation fell below an objective standard of reasonableness,” id.
at 688, and then consider the issue of prejudice, i.e., whether
“there is a reasonable probability that, but for counsel’s un‐
professional errors, the result of the proceeding would have
been different,” id. at 694.
1.
As we already have noted, the state court did not address
the deficiency prong of the Strickland analysis. Accordingly,
“we must ‘dispose of the matter as law and justice require,’ 28
U.S.C. § 2243, which is essentially de novo review.” Eichwedel
19
v. Chandler, 696 F.3d 660, 671 (7th Cir. 2012).
We begin with a preliminary issue concerning Mr. Carter’s
precise contentions on deficient performance. In the current
briefing, Mr. Carter repeatedly frames his claim as a claim
that his trial counsel’s deficiency was a failure to investigate
and call the proffered witnesses. In his petition in the district
court, however, Mr. Carter principally argued that the failure
to call the witnesses was counsel’s deficient performance. The
19 See also Thomas v. Clements, 789 F.3d 760, 766–67 (7th Cir. 2015) (evalu‐
ating separately the standards of review applicable to the different prongs
of the Strickland analysis given the last state court’s failure to address de‐
ficiency); Toliver v. McCaughtry, 539 F.3d 766, 775 (7th Cir. 2008) (applying
de novo review to deficiency prong only where applicable state court en‐
gaged in no analysis of it).
No. 13‐2243 19
State seizes on the discrepancy and contends that Mr. Carter
has waived any claims relating to counsel’s failure to investi‐
20
gate these witnesses.
We are not persuaded that Mr. Carter’s marginally differ‐
ent characterizations of his claim are consequential. In the first
place, Mr. Carter’s pro se petition in the district court must be
construed liberally. Bennett v. Gaetz, 592 F.3d 786, 790 (7th Cir.
2010); cf. Ward v. Jenkins, 613 F.3d 692, 696–97 (7th Cir. 2010)
(employing a liberal construction to a pro se state petition to
determine if claims were fairly presented to state courts).
More importantly, however, a review of our substantive
standards for evaluating Mr. Carter’s failure‐to‐call claims
demonstrates that we have regarded such claims as closely
tied to what the record tells us about the nature of counsel’s
investigation. Specifically, in applying Strickland’s first prong
generally, we have stated that
we presume that counsel’s actions fall within
the wide range of reasonable professional assis‐
tance, and defer to strategic decision‐making by a
trial attorney. Despite this weighty deference,
we nonetheless must carefully consider
whether the attorney brought to bear the skill
and knowledge that allows for a proper adver‐
sarial testing process, considering all the cir‐
cumstances.
20 We note that the State does not argue that Mr. Carter defaulted a failure‐
to‐investigate claim in the state courts, only that he waived it by failing to
present it in the district court. See Appellee’s Br. 44–45.
20 No. 13‐2243
Adams v. Bertrand, 453 F.3d 428, 434–35 (7th Cir. 2006) (empha‐
sis added) (citations omitted) (internal quotation marks omit‐
ted). In elucidating this standard in the context of a claim of
failure to present certain potentially favorable testimony, we
have stated:
“[A] lawyer’s decision to call or not to call a wit‐
ness is a strategic decision generally not subject
to review. The Constitution does not oblige
counsel to present each and every witness that
is suggested to him.” United States v. Williams,
106 F.3d 1362, 1367 (7th Cir. 1997) (internal cita‐
tion and quotation marks omitted). If counsel
has investigated witnesses and consciously de‐
cided not to call them, the decision is probably
strategic. An outright failure to investigate wit‐
nesses, however, is more likely to be a sign of
deficient performance. …
… .
… . Few decisions not to present testimony
can be considered “strategic” before some in‐
vestigation has taken place. As we explained in
United States ex rel. Hampton v. Leibach, 347 F.3d
219 (7th Cir. 2003), “strategic choices made after
less than complete investigation are reasonable
precisely to the extent that reasonable profes‐
sional judgments support the limitations on in‐
vestigation.”
United States v. Best, 426 F.3d 937, 945–46 (7th Cir. 2005) (em‐
phasis in original); see also Mosley v. Atchison, 689 F.3d 838, 848
No. 13‐2243 21
(7th Cir. 2012) (“To avoid the inevitable temptation to evalu‐
ate a lawyer’s performance through the distorting lens of
hindsight, Strickland establishes a deferential presumption
that strategic judgments made by defense counsel are reason‐
able. But the presumption applies only if the lawyer actually
exercised judgment.” (citation omitted)). That is, although we
defer to strategic decisions, we first assure ourselves that a
strategic decision was made, because “[t]he consequences of
inattention rather than reasoned strategic decisions are not
entitled to the presumption of reasonableness.” Mosley, 689
F.3d at 848. In sum, although “[i]t would be a rare case where
counsel’s conscious decision not to call a witness would
amount to constitutionally ineffective assistance,” United
States v. Weaver, 882 F.2d 1128, 1139 (7th Cir. 1989) (emphasis
added), “strategic choices made after less than complete in‐
vestigation are reasonable only to the extent that reasonable
professional judgments support the limitations on investiga‐
tion.” Wiggins v. Smith, 539 U.S. 510, 533 (2003) (internal quo‐
tation marks omitted); see also Strickland, 466 U.S. at 691 (“In
other words, counsel has a duty to make reasonable investi‐
gations or to make a reasonable decision that makes particular
investigations unnecessary.”).
The record does not reveal anything about the scope of
counsel’s investigation of Calmese and McReynolds. Counsel
was aware of both witnesses and initially placed McReynolds
21
on the witness list and took steps to secure his testimony. For
reasons that are not disclosed by the record, counsel did not
21 Specifically, the record shows that counsel sought a court order for his
testimony when McReynolds was incarcerated in the months before the
trial.
22 No. 13‐2243
actually contact or call either potential witness. On the record
before us, therefore, we cannot determine that counsel con‐
ducted the investigation necessary to conclude that pursuing
22
McReynolds’s or Calmese’s testimony would be fruitless.
Potential reasons not to call either witness are, of course,
conceivable. McReynolds was incarcerated during the
lead‐up to Mr. Carter’s trial, and counsel may have concluded
that his criminal history (the details of which are not part of
the present record) were sufficiently problematic that his tes‐
timony would have been of little value. Counsel may have be‐
lieved that the testimony of either witness would have been
cumulative and unhelpful, a point we shall examine in our
prejudice analysis. On the other hand, we have found defi‐
ciency in situations where counsel has failed to call witnesses
even when testimony is cumulative, if the missing witness is
disinterested in a case in which other witnesses have a rela‐
tionship to the defendant. See Montgomery v. Petersen, 846 F.2d
22 The Government cites United States v. Ashimi, 932 F.2d 643 (7th Cir.
1991), for the proposition that “a blank record [concerning an attorney’s
investigation] cuts in favor of, not against, effective assistance.” Id. at 649.
Ashimi, however, was a direct appeal, and therefore the defendant had
elected to raise an ineffective assistance claim on the trial record itself, a
decision that is discouraged in the main of cases because of the limitations
on available facts. See, e.g., United States v. Taglia, 922 F.2d 413, 417–19 (7th
Cir. 1991) (discussing the options for raising an ineffective assistance claim
and reminding defendant that “if he wants to support the claim with facts
that require evidence to establish he will be well advised to wait till the
postconviction stage and will be safe in doing so”). Furthermore, the rec‐
ord as it stands does not resolve the matter for Mr. Carter, but neither is it
“blank.” We know, for instance, that counsel was aware of McReynolds
and his probable testimony, that he initially placed McReynolds on the
witness list, but that he did not contact McReynolds and did not call him.
No. 13‐2243 23
407, 414 (7th Cir. 1988) (“The jury was presented with a
straightforward credibility choice. Every one of these wit‐
nesses had a reason to be biased. Given the standoff between
two factions in this family, one group supporting
Wayne Montgomery and the other group supporting the pe‐
titioner, independent corroboration by a neutral, disinter‐
ested witness would perforce be extremely significant.”).
Under these circumstances and considering the potential
value of the testimony of Calmese and McReynolds—the mer‐
its of which we shortly shall examine—it may well have been
that “counsel could not have made a reasonable strategic de‐
cision not to call [either witness] without interviewing [them]
in order to evaluate [their] proposed testimony, [their] credi‐
bility or [their] demeanor.” Toliver, 539 F.3d at 775. Based on
the allegations contained in the affidavit of McReynolds,
which we must take as true at this stage of the proceeding,
such an investigation did not occur. Remand therefore might
well be appropriate to address the first Strickland prong, un‐
less the claim was properly denied on the prejudice prong. Cf.
id. at 782 (“The state courts never resolved, under the first
prong of the Strickland analysis, whether Mr. Toliver’s counsel
was ineffective in not interviewing Harvey and in not calling
Angeal. Therefore, issues of fact concerning counsel’s compe‐
23
tence were never resolved.”). We therefore proceed to the
prejudice prong of Strickland.
23 One additional point deserves mention: whether a statutory bar stands
in the way of Mr. Carter’s request for an evidentiary hearing. Specifically,
under 28 U.S.C. § 2254(e)(2), “[i]f the applicant has failed to develop the
factual basis of a claim in State court proceedings, the [federal] court shall
not hold an evidentiary hearing,” except in limited circumstances. At oral
24 No. 13‐2243
2.
a.
The parties dispute the appropriate standard of review on
the issue of prejudice. The Illinois Appellate Court discussed
and resolved this issue on the merits against Mr. Carter. Or‐
dinarily, this state court determination would require us to
apply AEDPA deference to the state court’s decision. See 28
U.S.C. § 2254(d)(2); supra section II.A. Mr. Carter, neverthe‐
less, contends that our review of the prejudice prong is also
argument, we questioned the parties about whether such a request had
been presented to the state court, and, if not, whether the lack of such a
request barred federal courts from the consideration of extra‐record mate‐
rial and prevented us from remanding the case for an evidentiary hearing.
We requested supplemental briefing on the topic.
Both parties responded that, under the Illinois Post‐Conviction Hear‐
ing Act, 725 ILCS 5/122‐1 et seq., Mr. Carter’s filing of the petition itself
effectively requested a hearing, and one would have been granted as a
matter of course had the petition advanced beyond the early screening
stages. See App. R.54; App. R.53 at 1 (“[A]n evidentiary hearing is required
whenever petitioner satisfies the second‐stage standard.” (citing People v.
Coleman, 701 N.E.2d 1063, 1072 (Ill. 1998)). We are somewhat skeptical of
the breadth of this legal conclusion—the state court surely would not
grant an evidentiary hearing if the parties agreed on the factual basis of
the claim. Nevertheless, the Supreme Court has interpreted the bar in
§ 2254(e)(2) as requiring a showing of “some lack of diligence” on the part
of the petitioner. Williams v. Taylor, 529 U.S. 420, 430 (2000). Here, the State
essentially concedes that Mr. Carter acted in the manner envisioned by the
state postconviction procedure with respect to this issue. See id. at 437
(“Diligence will require in the usual case that the prisoner, at a minimum,
seek an evidentiary hearing in state court in the manner prescribed by state
law.” (emphasis added)). We therefore do not believe that § 2254(e)(2)
stands as a bar to our consideration of his request for a hearing in federal
court.
No. 13‐2243 25
de novo, because the state court analyzed the case under Peo‐
ple v. Coulter, 815 N.E.2d 899 (Ill. App. Ct. 2004), a case which
stated that outcome‐determinative prejudice is insufficient
unless counsel’s performance resulted in a trial that was un‐
reliable or fundamentally unfair.
At first blush, Mr. Carter’s point is well taken, and one that
we have noted before. In Strickland, the Supreme Court iden‐
tified the now familiar prejudice standard as whether “there
is a reasonable probability that, but for counsel’s unprofes‐
sional errors, the result of the proceeding would have been
different.” 466 U.S. at 694. Mr. Carter is correct that the State
court recited a standard that placed an additional burden on
him, specifically, one that required him to demonstrate not
only a reasonable probability of a different outcome, but that
the result of counsel’s errors rendered his trial unreliable or
fundamentally unfair. The state court’s actual decision rested,
however, on his failure to satisfy even the lower outcome bur‐
den under Strickland. Put simply, although the state court’s
decision is bookended by an articulation of the fundamen‐
tally‐unfair‐or‐unreliable standard, its analysis is focused on
whether the proffered testimony could have affected the out‐
come, which is the correct inquiry under Strickland. See R.14‐2
at 169–70 (noting that the testimony “would not have been
exculpatory” and was “cumulative,” that McReynolds’ testi‐
mony did not accomplish what Mr. Carter alleged that it did,
and that, because of the State’s accountability theory, “the re‐
sult of defendant’s trial would have been the same”).
We faced a similar situation in Floyd v. Hanks, 364 F.3d 847
(7th Cir. 2004). There, the Court of Appeals of Indiana exam‐
ined prejudice under Strickland but recited that “when errors
26 No. 13‐2243
do not make the result of the trial unreliable, they do not cause
prejudice.” Id. at 852. Nevertheless, we noted that
a fuller view of the appellate court’s discussion
reveals that while the term “reliability” was em‐
ployed, the actual analysis of Floyd’s counsel’s
conduct properly considered whether the coun‐
sel’s actions affected the outcome of the trial. As
noted above, the Indiana Appellate Court con‐
sidered the potential effect of the [favorable ev‐
idence] against the weight of the other evidence
heard by the jury. In reaching its decision that
there was no prejudice, the court found that the
inculpating evidence was overwhelming and
had Floyd’s counsel taken the steps that Floyd
now demands, the result would have been the
same; this is the very analysis that is required by
Strickland and Williams.
Id. at 852–53 (footnote omitted); cf. Goodman v. Bertrand, 467
F.3d 1022, 1028 (7th Cir. 2006) (finding state court applied an
incorrect prejudice analysis where “it repeatedly reasoned
that Goodman failed to show that his second trial was ‘funda‐
mentally unfair’ or ‘unreliable’”).
The analysis in Floyd applies here. Even though the Illinois
court noted that counsel’s performance “did not render the
24
proceeding unreliable or fundamentally unfair,” its analysis
focused on the probable impact of the proffered testimony on
the outcome. The court evaluated the evidence piece by piece
and concluded explicitly that, because the jury was instructed
24 R.14‐2 at 171.
No. 13‐2243 27
on an accountability theory, “the result of defendant’s trial
would have been the same even if Calmese and McReynolds
25
had testified that defendant was unarmed.” “Any possible
testimony from McReynolds and Calmese that defendant was
unarmed would not have illuminated whether defendant was
26
legally accountable for the actions of his co‐defendants.”
This is precisely the analysis demanded by Strickland. Accord‐
ingly, the Illinois court’s analysis is not “contrary to” settled
law, and we therefore apply AEDPA deference to the state
court’s resolution of the issue.
We next turn to the question whether the State unreason‐
ably applied Strickland on the facts before it. See Cullen v. Pin‐
holster, 563 U.S. 170, 181 (2011) (“[R]eview under § 2254(d)(1)
is limited to the record that was before the state court that ad‐
judicated the claim on the merits.”). Specifically, we must de‐
termine whether the state court’s assessment of the probable
27
value of the proffered testimony was unreasonable.
25 Id. at 170.
26 Id.
27 In evaluating the prejudice prong, both parties invite our attention to
the results of an entirely separate state court conviction and federal habeas
proceeding: those involving Cortez Jones. Jones, like Mr. Carter, was con‐
victed of the murder of Gardner, although in a separate trial. Mr. Carter
emphasizes that Jones was granted habeas relief on an ineffective assis‐
tance of counsel claim by the district court, which also focused on the fail‐
ure to present exculpatory testimony. See United States ex rel. Jones v. Jack‐
son, No. 08 C 4429, 2014 WL 4783810 (N.D. Ill. Sept. 25, 2014). The State
emphasizes that the testimony actually presented at Jones’s hearing un‐
dermines Mr. Carter’s claims. In evaluating these arguments, we note first
that the grant of relief by a district court to Jones, which has now been
28 No. 13‐2243
We begin with Calmese. If he had testified consistently
with his statement to police, Calmese would have stated that
28
Stone fired first, and then Jones fired. He made no statement
appealed and is pending before another panel of this court, is not factually
similar. Specifically, it has nothing to do with the testimony of McReyn‐
olds and Calmese on which Mr. Carter bases his claim, but was instead
focused on Jones’s trial attorney’s failure to call Stone, who claimed to be
the sole shooter and who disavowed cooperation with Jones and
Mr. Carter. Second, and most importantly, as we already have noted, our
review is limited to the record as it existed in state court. See Cullen v. Pin‐
holster, 563 U.S. 170, 181 (2011). We therefore do not consider the material
from Jones’s hearing or the court’s disposition of his case in our evaluation
of Mr. Carter’s claim.
28 The relevant description of Calmese’s probable testimony contained in
the police report states, in full:
Paul CALMESE ………………………… stated that he was
on the street standing next to the victim. CALMESE stated
that he had been called by the victim because someone
had stolen his car radio. CALMESE stated that as they
were talking the Cav[alier] pulled up, and two guys got
out. CALMESE stated that the driver went and started
talking to Friday. CALMESE stated that they began to ar‐
gue, and Friday is asking for his radio back. CALMESE
stated that he observed that the passenger of the Cav[al‐
ier] had a gun in his pocket. CALMESE stated that the
driver then accused Friday of burglarizing his relatives[’]
apartment. CALMESE stated that he stepped behind the
passenger. CALMESE stated that someone came out of
the building, (6102 S. May), and was standing by the alley.
CALMESE stated that the subject came from the alley,
stepped between him and the driver of the vehicle, and
fired three times. CALMESE stated that the passenger
then fired twice at the victim. CALMESE stated that after
No. 13‐2243 29
about Mr. Carter’s possession or use of a weapon. It is true
that, unlike the testimony of Rena and Antonio Phillips,
Calmese’s testimony would not have inculpated directly
Mr. Carter. And unlike Pearson (who indicated that Stone
shot and either Jones or Mr. Carter followed) and Gaston (who
identified Jones as a shooter and was unclear if anyone else
shot), Calmese’s two‐shooter scenario involves only Stone
and Jones. It is perhaps most consistent with Cheeks’s testi‐
mony that Stone shot and then additional shots came from the
direction of Mr. Carter and Jones.
According to his affidavit, McReynolds would have testi‐
fied that he heard the argument, “observed Friday Gardner
the shooting the two subject[s] from the vehicle fled east
on foot, and the other subject fled west.
R.14‐2 at 24.
30 No. 13‐2243
pull an object out from behind his back and then…heard sev‐
eral shots ring out.”29 He continues that “[t]he individual fir‐
30
ing the shots” was Stone. Further, McReynolds states: “I did
29 Id. at 22. McReynolds’s affidavit states, in full:
I, Jeremiah McReynolds[,] being first deposed
upon his sworn oath under penalty of perjury, do freely
and willfully attest to the following facts as being true and
accurate to the best of his personal knowledge and belief,
to wit:
1. On the 12th of September, 1999 at ap‐
proximately 11:00 p.m.; I personally observed from my
first floor window at 61st and May, three individuals
across the street hollering and gesturing at one another
in a agitating manner;
2. Such individuals were Junior (Michael
Carter), a guy named Cortez Jones, and Friday Gardner.
They were all arguing and from time to time they were
all seen in the neighborhood;
3. During what appeared to be a very
heated argument, I observed Friday Gardner pull an ob‐
ject out from behind his back and then I heard several
shots ring out from the alleyway;
4. The individual firing the shots was
known to me as “Man” and he lived in the neighbor‐
hood;
5. I did not personally observe anyone else
doing any shooting, and when the shooting was occur‐
ring the reaction of Junior (Michael Carter) and Cortez
Jones was to scatter in an effort to avoid being shot;
6. Friday Gardner was shot and he fell to
the pavement as everyone around him fled from the
scene;
No. 13‐2243 31
not personally observe anyone else doing any shooting, and
when the shooting was occurring the reaction of Junior (Mi‐
chael Carter) and Cortez Jones was to scatter in an effort to
31
avoid being shot.” If he had been called to testify, therefore,
McReynolds would have echoed the testimony of Felicia and
7. I later informed LaTonya Cheeks that I
had observed everything that had happened and that I
would testify as a witness if called to go to court;
8. Prior to the trial in regards to the shoot‐
ing death of Friday Gardner I got into legal trouble and
went to prison but I was released before the trial took
place and notified Michael Carter’s family that I was still
available to give testimony about what I observed on the
12th of September, 1999;
9. Sometimes during June of 2002; I was
informed that Junior’s (Michael Carter) Mother had con‐
tacted my family members and left word that I was on
Junior’s (Michael Carter’s witness list), and that I would
be called into court;
10. Although I was available and in Chi‐
cago, Illinois at all times in which the trial was going on,
no lawyer or anyone else from the court contacted me or
called me as a witness about the facts that happened on
September 12, 1999;
11. If called into court to testify to the facts
stated herein, I will appear and attest to such facts as be‐
ing true and correct to the best of my personal
knowledge and belief.
Id. at 22–23.
30 Id. at 22.
31 Id.
32 No. 13‐2243
Michella Anderson, Cheeks, and Stone with respect to Gard‐
ner’s drawing a weapon, and with Felicia and Michella An‐
derson, and Stone, in identifying Stone as the only shooter.
In assessing the testimony of Calmese and McReynolds,
the state court concluded that it would have had little proba‐
ble impact on the outcome of Mr. Carter’s trial. Specifically, it
said that the testimony
would not have been exculpatory and would
have merely been cumulative of the testimony
presented by Felicia Anderson, LaTonya
Cheeks, Michell[a] Anderson, and co‐defendant
Stone. Defendant’s theory of defense was pre‐
sented at trial and corroborated where these
witnesses testified that the victim had a gun and
defendant did not. The jury rejected this de‐
fense.
Moreover, McReynolds’ affidavit is insuffi‐
cient and unsupportive of defendant’s defense.
Specifically, defendant incorrectly relies on the
affidavit to establish that he was unarmed and
did not participate in shooting the victim.
McReynold[s’] affidavit merely states that he
only saw co‐defendant Stone shoot a gun, and
that defendant “scattered” to avoid being shot.
He does not specify that defendant was un‐
armed or somehow uninvolved in the shooting.
The same holds true for the police report re‐
garding Calmese, which merely documents that
the police interviewed Calmese, who saw co‐de‐
fendants Stone and Jones shoot the victim. It
No. 13‐2243 33
does not state that defendant was unarmed or
somehow uninvolved in the shooting.
Furthermore, the result of defendant’s trial
would have been the same even if Calmese and
McReynolds had testified that defendant was
unarmed where the jury was given the follow‐
ing accountability instruction:
“A person is legally responsible
for the conduct of another person
when either before or during the
commission of an offense with the
intent to promote or facilitate the
commission of an offense he
knowingly solicits, aids, abets,
agrees to aid, or attempts to aid
the other person in the planning
or commission of the offense. [] A
person who is legally responsible
for the conduct of another may be
convicted for the offense commit‐
ted by the other person even
though the other person, who it is
claimed committed the offense,
has not been convicted.”
The jury heard the evidence, received the in‐
structions, and found defendant guilty. Any
possible testimony from McReynolds and
Calmese that defendant was unarmed would
34 No. 13‐2243
not have illuminated whether defendant was le‐
gally accountable for the actions of his co‐de‐
fendants.[32]
It concluded its analysis with a final reference to its determi‐
nation on direct appeal “that the evidence here was not
33
closely balanced.”
The court’s analysis, while flawed, is ultimately not so far
off the mark as to be unreasonable. See 28 U.S.C. § 2254(d)(1);
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (“A state
court decision must be more than incorrect from the point of
view of the federal court; AEDPA requires that it be ‘unrea‐
sonable,’ which means something like lying well outside the
boundaries of permissible differences of opinion.”). We are
uncomfortable with the state court’s conclusion that the testi‐
mony is “cumulative” and that the theory of defense was ad‐
equately presented at trial and rejected by the jury. In reach‐
ing 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 rela‐
tionship to Gardner, and McReynolds appears to be totally dis‐
interested. This is a significant and noteworthy difference that
32 Id. at 169–70 (third alteration in original) (citation omitted).
33 Id. at 171. It also closed with a citation to the erroneous “unreliable or
fundamentally unfair” standard. Id. For the reasons set forth above, we do
not find this error consequential given the appropriate course of the anal‐
ysis.
No. 13‐2243 35
deserved to factor in to the state court’s analysis. Cf. Montgom‐
ery, 846 F.2d at 414 (“Every one of these witnesses had a rea‐
son to be biased. Given the standoff between two fac‐
tions…independent corroboration by a neutral, disinterested
witness would perforce be extremely significant.”).
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 sub‐
stantial probability of acquittal is not unreasonable. In reach‐
ing this conclusion, the most significant factors are the com‐
peting theories of the case presented at trial: Stone argued
self‐defense, Mr. Carter argued mere presence, and the State
argued accountability. Calmese’s testimony is not valuable
under these circumstances, because it identifies not just Stone
but also Jones as shooters, undermining the sole‐shooter sce‐
nario Stone had presented to the jury. Moreover, anything
that confirms Jones’s involvement is factually even more
problematic for Mr. Carter under the accountability theory,
because Mr. Carter’s ties to Jones that day and at the moment
of the shooting make a claim that Jones acted independently
significantly less credible: Mr. Carter had gotten Jones in‐
volved in the dispute over the robbery; they spent the after‐
noon together; they drove to the building to begin the con‐
frontation together; they fled together; and, outside of back‐
ing up Mr. Carter, Jones did not have a proverbial “dog in the
fight” stemming from the original burglary or the people in‐
volved. Accordingly, to truly undercut the State’s case,
Mr. Carter’s defense needed to distance him from the shoot‐
ers, whether that be Stone alone or Jones and Stone. Calmese’s
testimony does not accomplish that result.
36 No. 13‐2243
McReynolds’s proffered testimony, for the reasons noted
by the state court, also ultimately fails to furnish the linchpin
of Mr. Carter’s claim. Had the proffer included an unequivocal
statement from McReynolds that he had watched the entire
scene, that Stone was the only shooter, and that Mr. Carter
and Jones were unarmed, we might well conclude, given
McReynolds’s disinterested status, that the state court’s con‐
clusion on prejudice was unreasonable. But as the State notes,
McReynolds says nothing about Mr. Carter’s activities prior to
34
“scatter[ing].” He does not say that he watched Mr. Carter
and saw no gun and no shooting; he says only that he “heard
several shots ring out from the alleyway,” Stone’s location,
35
and “did not personally observe” any other shooting.
McReynolds does not specifically say that he saw Stone shoot.
The phraseology is notably weak, and all of the potentially
relevant factual assertions about the shooting comprise only
three sentences, woefully lacking in detail. His further testi‐
mony that Mr. Carter and Jones scattered after Stone’s shots
to avoid being shot themselves is fairly characterized as add‐
ing somewhat of a gloss on the testimony of essentially every
other witness that day, all of whom agree that all three of the
defendants fled the scene. The most striking factual claim
McReynolds makes in the affidavit is that he saw Gardner
draw “an object out from behind his back,” but this fact, while
34 See R.14‐2 at 22.
35 Id. (emphasis added). If our review were de novo, we also would take
notice of the fact that two witnesses who conceivably would have a pro‐
Gardner bias (Pearson, his girlfriend, and Gardner’s friend Gaston, with
whom he was speaking when Mr. Carter and Jones approached) gave
equivalent testimony that they did not see Mr. Carter have a gun.
No. 13‐2243 37
potentially significant to Stone’s self‐defense claims, is irrele‐
36
vant to Mr. Carter’s mere presence defense.
The state court indicated that this case was not a close one.
That characterization may be a matter of some legitimate de‐
bate. The issue before us today is, however, a narrow one con‐
cerning only two pieces of additional evidence. Considering
the limited potential value of that evidence, we conclude that
the state court’s assessment of the prejudice prong of Strick‐
land cannot be characterized as unreasonable. 37
36 Id. We note that, although the accountability instruction was given to
the jury, the State’s closing argument claims that all three defendants were
armed and ready to shoot. The jury convicted Mr. Carter following this
argument and the instruction. The evidence before us now likewise does
not undercut, in any significant way, the evidence presented that
Mr. Carter himself was armed, insofar as neither witness definitively
states that Mr. Carter was unarmed.
37 We note that, on appeal, Mr. Carter concludes his brief by contending
that the cumulative errors of his trial counsel rise to the level of constitu‐
tionally deficient performance. In addition to the principal claim regard‐
ing Calmese and McReynolds, he points to trial counsel’s failure to ade‐
quately present a mere presence defense, instead deferring to Stone’s
counsel and a theory of self‐defense, and a failure to argue for a limiting
instruction on other crimes evidence. The parties dispute whether these
arguments are procedurally problematic at this stage of the litigation,
given the nature of the arguments presented in state court and in the dis‐
trict court. We need not resolve these procedural issues, however. The core
of Mr. Carter’s ineffective assistance argument is the witness testimony,
and we have found the state court’s assessment of the prejudicial effect of
not presenting that testimony to be reasonable. Viewing the evidence pre‐
sented at trial in its totality, Strickland v. Washington, 466 U.S. 668, 695‐96
(1984), even if we could consider the additional claimed errors and agreed
that they amounted to deficient performance, they are not so substantial
38 No. 13‐2243
Conclusion
The district court’s resolution of the sole claim presented
in Mr. Carter’s federal habeas petition was correct. Although
trial counsel’s performance may have been deficient in failing
to investigate potential witnesses, the state court’s resolution
of the prejudice analysis was not unreasonable within the
meaning of 28 U.S.C. § 2254(d)(1). Accordingly, we affirm the
judgment of the district court.
AFFIRMED
as to alter our assessment and demonstrate a reasonable probability of a
different outcome to Mr. Carter’s trial.
No. 13‐2243 39
EASTERBROOK, Circuit Judge, concurring. We resolve this
case as the parties have presented it. Whether they have pre‐
sented it correctly is doubtful.
For example, at page 18 the court applies the circuit’s doc‐
trine that, because the state judiciary bypassed the “perfor‐
mance” component of Strickland v. Washington, 466 U.S. 668
(1984), 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 preju‐
dice Carter. I think that §2254(d) governs both elements of
Strickland once the state judiciary decides an ineffective‐assis‐
tance claim. Section 2254(d) applies when a state court re‐
solves 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 re‐
specting the denial of rehearing en banc). But Illinois has not
asked us to revisit the cases cited at page 18 & n.19.
When analyzing the performance element of Strickland,
the court asks only whether counsel may have erred by not
interviewing and calling two potential witnesses. That’s the
way Carter framed the issue. It is the wrong question to ask.
Strickland directs a court to examine the totality of counsel’s
performance, not to concentrate on a supposed error while
losing sight of what the lawyer did for his client. See Strickland,
466 U.S. at 690–96; Williams v. Lemon, 557 F.3d 534 (7th Cir.
2009) (applying this aspect of Strickland to another proceeding
in which a prisoner contended that counsel had not inter‐
viewed and called witnesses). As happens too often, however,
lawyers for the state have gone along with the petitioner’s
40 No. 13‐2243
(understandable) desire to focus attention on what trial coun‐
sel arguably omitted, rather than the full course of represen‐
tation. But this does not imply that it is right to ignore what
Carter’s lawyers did and focus only on what arguably did not
occur.
I said “arguably” in the last two sentences because we do
not know whether counsel interviewed McReynolds or Calm‐
ese, or what considerations influenced the decision not to call
them. We have only Carter’s views. That’s because counsel
have never been called on to say what they did and explain
why they did (or didn’t) do any particular thing, and no judge
has decided whether Carter’s allegations are true. The state
might well have invoked 28 U.S.C. §2254(e)(2), which pro‐
vides 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. As the court’s opinion explains
(pages 23–24 & n.23), Illinois has waived any opportunity to
rely on this statute. It may be, as the prosecutor has told us,
that in Illinois a petitioner need not invariably make a sepa‐
rate request for a hearing. But Carter not only never requested
an evidentiary hearing but also did not complain on appeal in
the state system about the absence of one. He evidently wants
both state and federal judges to assume that his view of what
occurred is all that matters. That can’t be right. It is not sensi‐
ble—indeed, usually it is not possible—to decide that defense
counsel furnished ineffective assistance without hearing from
the lawyer what happened and why.
For reasons the court’s opinion gives, however, none of
these issues affects the outcome. I therefore join the court’s
opinion, but I also hope for better performance from appellate
counsel in future ineffective‐assistance litigation.
