Washington, Vonaire v. Smith, Judy

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2383

Vonaire T. Washington,

Petitioner-Appellee,

v.

Judy Smith, Warden,

Oshkosh Correctional Institution,

Respondent-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 97-C-0424--Lynn Adelman, Judge.

Argued February 24, 2000--Decided July 6, 2000

Before Posner, Chief Judge, Cudahy and Evans,

Circuit Judges.

Cudahy, Circuit Judge. On September 17, 1991, a

Wisconsin jury convicted Vonaire Washington of

two counts of being party to an armed robbery and

one count of being a felon in possession of a

firearm. The state court sentenced Washington to

consecutive prison terms totaling 22 years

imprisonment. Washington filed a post-conviction

motion in the trial court, claiming that at trial

he was denied effective assistance of counsel,

and following a two-day evidentiary hearing, the

trial court denied that motion. Washington

appealed, and the Wisconsin Court of Appeals

affirmed his conviction in an unpublished

opinion. The Wisconsin Supreme Court denied

Washington’s petition for review.

Washington then filed an application for a writ

of habeas corpus under 28 U.S.C. sec. 2254 in the

United States District Court for the Eastern

District of Wisconsin, again arguing ineffective

assistance of counsel. The district court found

that Washington had been denied effective

assistance of counsel and was prejudiced as a

result and that the state-court decisions

involved an unreasonable application of

Strickland v. Washington, 466 U.S. 668 (1984).

The district court granted Washington’s

application on August 29, 1999, and the State

appeals that decision. We affirm.

I. Background

A. The Robbery

On Sunday July 15, 1990, at about four o’clock

in the afternoon, three men entered the Jolly

Skot Tavern in Milwaukee and robbed the

owner/bartender--James D. Johnson/1--and two

patrons--Jane Dornuf and James Earl Davis--at

gunpoint. The first of the three men entered

carrying a shotgun, leapt onto a barstool and

then onto and over the bar, pointing the shotgun

at the bar owner, who at that point was lying

face down on the floor. The man who had jumped

over the bar then asked, "Should I pop him?" One

of the other robbers responded, "Pop him," and

then repeated, "Well, pop him," but the man with

the shotgun did not. Instead, he took

approximately 200 dollars from the bar owner’s

pockets. The second robber, armed with a silver

handgun, took Dornuf’s wallet and cash and also

robbed Davis. The third robber remained by the

door, and after about ten minutes, the three men

left.

About two hours later, the police stopped three

men-- Leother Lobley, Clifford Beasley and

Vonaire Washington--in a car at the 1600 block of

North 29th Street. The police found a large blue

gym bag containing two 12-gauge shotguns and

shells on the floor in front of the front

passenger seat. All three men were placed under

arrest and were escorted to the Jolly Skot Tavern

in handcuffs. At the tavern, the bar owner was

unable to identify any of the three men as one of

the robbers. The patrons performed better: Dornuf

identified Washington as one of the participants

in the robbery, and Davis also identified

Washington as one of the robbers.

On July 18, 1990, the police conducted a lineup

at the police station. Washington was not part of

this, or any other, lineup at the police station.

However, the day before, Washington’s soon-to-be

codefendant, James L. Johnson, had been

arrested,/2 and Johnson occupied position number

two in the lineup. The bar owner and the two

patrons took a look. The bar owner, just as

before in the bar, could not make any visual

identification. However, the lineup participants

were instructed to say the phrase "Should I pop

him?", and the bar owner then identified

codefendant Johnson as one of the robbers. Davis

failed to positively identify any member of the

lineup, but Dornuf later, when she was shown a

photograph of the lineup, identified Johnson as

one of the robbers. Both Washington and Johnson

were charged in connection with the robbery of

the Jolly Skot, and the case proceeded to trial.

B. Washington on Trial

On the second day of trial--after jury

selection but before the presentation of evidence

began--Washington addressed the court regarding

his concerns about his representation. Washington

asserted that he had asked his attorney, Mr.

Isadore Engle, to subpoena numerous alibi

witnesses but Mr. Engle had failed to do so. He

also told the trial court that Mr. Engle had

never discussed trial strategy and witnesses with

him. See Ex. P at 4-8. The court responded,

saying, "I assume your lawyer knows what an alibi

witness is and which witnesses would be allowed

to testify and which wouldn’t. He’s trained in

the law. He’s got a good reputation. The matter

is scheduled for trial right now. He’s ready to

proceed. I’m not going to adjourn it." Id. at 6-

7. After this ruling, Mr. Engle volunteered that

"[Washington] told me he had an alibi. I filed an

alibi. . . . He comes forward with matters before

the Court that he asked for certain witnesses I

didn’t produce. He never asked for one." Id. at

8. The court called the jury, and the testimony

began.

The State’s case against Washington consisted of

testimony from the bar owner, patrons Jane Dornuf

and James Davis, and Officer Arrastia (one of the

officers who arrested Washington). At trial, the

bar owner could not visually identify any of the

participants in the robbery. When asked to point

to the person whose voice he had recognized at

the lineup, although the situation is not

entirely clear, the bar owner apparently pointed

at Washington. Mr. Engle did not object or cross-

examine the bar owner about the fact that he had

never identified Washington, by voice or

otherwise./3 Ms. Dornuf testified that

Washington was the man with the shotgun and that

he had robbed the bar owner, but she admitted on

cross-examination (by codefendant Johnson’s

counsel) that she "may have" told the police that

she was "positive" Johnson was the robber with

the shotgun when she saw the photograph of the

lineup. She also admitted that at the preliminary

hearing she "couldn’t be sure" who carried the

shotgun and "couldn’t be sure" who robbed the bar

owner. Davis recounted the story of the robbery

and testified that the police brought two men to

the Jolly Skot after the robbery. He identified

Washington both as one of these men and as one of

the robbers. Davis also testified that he was

unable to identify anyone in the lineup (although

number four, who was one of the decoys, "look[ed]

very familiar"). Officer Arrastia testified that,

when the police stopped the car on 29th Street,

he saw Washington get out of the front passenger

seat and that another officer found a blue duffle

bag containing two shotguns and shells on the

front passenger floor.

Washington testified in his defense, as did two

alibi witnesses. Washington testified that on the

day of the robbery, he was staying with Sandra

Blue and had borrowed her car at about noon to go

to Gola Richardson’s house. Richardson lived near

the corner of 24th and Vine in Milwaukee. After

his arrival at Ms. Richardson’s, he watched The

Great Escape, starring Steve McQueen, on

television with Richardson, her sister Sharon

Brown/4 and her brother David Brown. After the

movie, Washington and David Brown went out on the

porch to talk. It was raining, but after the rain

stopped, Jerome Pickens-- whom Washington had

never met before--joined them to chat. Washington

further testified that they heard men down the

street arguing and went to see what was

happening. One of the arguing men pulled a gun

and fired at a house. The shooter then jumped on

a motorcycle, and as he rode off, a second man

came into the street and shot at the fleeing man.

After the action ended, Washington, David Brown

and Pickens were (quite understandably)

discussing the incident when Sandra Blue paged

Washington on his beeper. Washington went to a

tavern near the corner of 24th and Vine--there

was no phone at Gola Richardson’s--at about 3:30

or 4:00 to call Blue. Blue wanted her car back,

but Washington told her that it would not start,

and that he was stranded at Gola Richardson’s

house. Washington returned to Gola Richardson’s

house, and around 5:00 or 5:45, two acquaintances

of Washington’s pulled up in a car. The car was

driven by Leother Lobley, and Washington

testified that he got into the back seat of the

car (saying that Officer Arrastia was "incorrect"

to say that he had been in the front seat), and

they left. The police stopped this car shortly

thereafter and arrested the three occupants.

The only two alibi witnesses that testified for

Washington at trial were Sandra Blue and Jerome

Pickens. Blue testified that on the day of the

robbery she let Washington borrow her car around

noon. She paged Washington at about 4:00. She

wanted her car, but he called her back and told

her that it would not start and asked her to have

his brother come pick him up at Gola

Richardson’s. During cross-examination, she

admitted to having two prior convictions.

Washington’s other alibi witness, Jerome Pickens,

testified that he saw Washington at Gola

Richardson’s house on the day of the robbery. He

testified that he was with Washington--whom, he

said, he had met for the first time that day--

from about 2:00 or 2:30 until about 6:00, except

at 5:00 when Washington left to make a phone

call. He saw the shooting take place around 3:30.

Pickens also admitted having two prior

convictions.

At the conclusion of the four-day trial, the

jury rejected Washington’s alibi defense and

found him guilty as charged. Washington retained

new counsel before sentencing, and the court

sentenced Washington to a total of 22 years in

prison. Washington, through his new counsel,

filed a motion for post-conviction relief on the

ground that he had been denied effective

assistance of counsel in the trial court. The

court held an evidentiary hearing on November 16

and 17, 1992.

C. The Post-Conviction Hearing

The first witness at the post-conviction hearing

was Washington’s former counsel, Isadore Engle.

Mr. Engle, who has been practicing criminal law

since 1944, testified that Washington had given

him Gola Richardson’s name some time before trial

and that he listed Ms. Richardson on the Notice

of Alibi he filed on April 22, 1991. Mr. Engle

claimed that this was the only name Washington

gave him before trial, but he could not find

notes on the substance of any of his pre-trial

meetings with his client. Mr. Engle further

testified that he had attempted to contact Gola

Richardson about three times by visiting her home

(recall, she did not have a telephone), but he

never interviewed her. Mr. Engle left his

business card with someone at her residence but

never heard from her. He did not seek the

assistance of an investigator to contact her,

and, although she was scheduled to testify on

June 13, he did not give the sheriff a subpoena

for Ms. Richardson until June 11 (the second day

of trial). By the time the subpoena was served,

Gola had left town for the week; therefore, she

did not testify at trial.

Although Mr. Engle had told the trial court

that Washington "had never asked for one" witness

besides Gola Richardson, he testified at the

post-conviction hearing that Washington gave him

a list of additional witnesses immediately before

the trial began. That list identified Jerome

Pickens, Sandra Blue, Sharon Brown, David Brown,

Leother Lobley, Clifford Beasley and others as

additional witnesses, but Mr. Engle made no

attempt to contact any of these individuals. Mr.

Engle explained this failure by stating: "There

was no way I could have an opportunity to contact

them at that late time. I was busy trying the

case." Ex. W at 17. Washington, however, while in

custody awaiting trial, actually managed to

contact Sandra Blue and Jerome Pickens on his own

and secured their testimony for his defense.

Testimony had to be reopened twice to allow these

witnesses to testify. Although he did not help

contact them, Mr. Engle did manage to find time

to talk to Blue and Pickens immediately before

each testified. Mr. Engle also testified at the

post-conviction hearing that it was "brand new

material" when Washington testified that he was

with Sharon Brown, David Brown and Jerome Pickens

on the day the Jolly Skot was robbed.

Mr. Engle was also questioned about a copy of a

police report he admittedly received months prior

to trial. The two-page report had been prepared

by Detective Clifford Hudlet, and that report

contained statements Leother Lobley made to

Detective Hudlet after Clifford Beasley,

Washington and Lobley were arrested, explaining

that the shotguns found in the car were not

Washington’s but that they had been placed there

by "Shorty G." earlier in the day. The report

also reflected that Lobley told Detective Hudlet

that Washington knew nothing about the shotguns

being in the car. The questioning of attorney

Engle went as follows:

Q: Now, in your preparing for this case, did you

read those two pages [of the police report]?

A: I did but I couldn’t make out too much of what

it said because the writing is bad.

. . .

Q: Did you do anything to attempt to decipher the

handwriting that you find difficult to read?

A: I deciphered it as best I could.

Q: Do you feel you understand or were able to

understand the contents of that statement by Mr.

Lobly [sic]?

A: Not very much.

. . .

Q: So, during your preparation for this case,

assuming that that statement does say that Shorty

G. gave this to them, a large blue gym bag, you

never had that information in your head when you

prepared this case; is that right?

A: That’s right.

Ex. W at 4-6. Perhaps as an obvious consequence

of being ignorant of the contents of the reports,

Mr. Engle did not attempt to speak with Lobley

prior to or during the trial.

Gola Richardson testified at the post-conviction

hearing, where she explained that Washington had

been with her, Sharon and David Brown and Jerome

Pickens at her home until at least 6:00 on the

day the Jolly Skot had been robbed. She also

testified that there was a shooting down the

street that day and that Washington’s car would

not start. No one had contacted her regarding

testifying at Washington’s trial, nor had she

received the business card Mr. Engle claimed to

have left for her. David Brown also testified,

and he said that Washington was with him, Gola

Richardson, Sharon Brown and Jerome Pickens all

afternoon on that day. He also recalled that

there was a shooting incident. Brown testified

that someone came to talk to him about the case,

but he did not recognize Mr. Engle (who was at

the hearing), and the person who had talked to

him never contacted him again. Washington also

testified briefly, claiming that he had given Mr.

Engle the names of Sharon and David Brown, as

well as Jerome Pickens, well before the trial

began, in direct contradiction to Mr. Engle’s

testimony. It was Washington’s understanding that

they were going to be listed on the Notice of

Alibi with Gola Richardson.

D. State-Court Rulings

The Wisconsin trial court made no specific

findings of fact and found nothing wrong with

Washington’s representation at trial: the court

found that Mr. Engle "under all the circumstances

was not inefficient [sic], [and] that his

performance did not fall below the standard of a

reasonably competent attorney in his community,

or an average attorney in his community . . . ."

Ex. W at 94. The court also noted that Mr.

Engle’s failure to subpoena Gola Richardson at an

earlier date was "unfortunately . . . not an

unusual way of proceeding in these criminal

cases." Id. at 92. The court also, without making

any specific findings of fact, apparently

credited Engle’s story that he had not heard

about Sharon or David Brown until immediately

before trial. The court said nothing about Lobley

or the unread police report. The Wisconsin Court

of Appeals affirmed and stated that Mr. Engle’s

"efforts to contact [Richardson] and have her

appear for trial were ’reasonable[ ] under

prevailing professional norms,’" State v.

Washington, 514 N.W.2d 879, 1994 WL 51669, at *2

(Wis. App. Feb. 22, 1994) (quoting Strickland,

466 U.S. at 688), and found the circuit court’s

implicit factual findings "not clearly

erroneous," id. The court did find Engle’s

failure to read the police report deficient

performance but found that this failing was

harmless. The Wisconsin Supreme Court denied

review.

E. Federal Court

On April 21, 1997, Washington filed this

application for a writ of habeas corpus under 28

U.S.C. sec. 2254 in the Federal District Court

for the Eastern District of Wisconsin. The

district court granted that application. The

district court found that the state courts’

determinations that (1) Mr. Engle’s failure to

subpoena Gola Richardson was excusable, (2)

Engle’s failure to interview Sharon or David

Brown (or call them as witnesses) was excusable

and (3) any deficient performance by Mr. Engle

was not prejudicial to Washington’s case were all

unreasonable applications of Strickland v.

Washington. The district court therefore granted

Washington’s application, and the State appeals.

II. Analysis

Our decision in this case is governed by the

increasingly familiar standards established by

the Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(AEDPA). Under AEDPA, we cannot grant Washington

the relief he seeks unless the state-court

adjudication resulted in a decision that "was

contrary to, or involved an unreasonable

application of, clearly established Federal law,

as determined by the Supreme Court of the United

States." 28 U.S.C. sec. 2254(d)(1). The Supreme

Court has recently expounded on the proper

application of sec. 2254(d)(1) in its Williams v.

Taylor, 120 S. Ct. 1495 (2000), decision.

Briefly, in order to secure a writ under sec.

2254(d)(1), Washington must satisfy one of the

following two conditions: "the state-court

adjudication resulted in a decision that (1) ’was

contrary to . . . clearly established Federal

law, as determined by the Supreme Court of the

United States,’ or (2) ’involved an unreasonable

application of . . . clearly established Federal

law as, determined by the Supreme Court of the

United States.’" Williams, 120 S. Ct. at 1523.

The statutory phrase "clearly established Federal

law as determined by the Supreme Court of the

United States," is a critical limitation under

sec. 2254(d)(1) and refers to, obviously enough,

"the holdings, as opposed to the dicta, of [the

Supreme Court’s] decisions as of the time of the

relevant state-court decision." Id. The district

court found the Wisconsin Court of Appeals

decision denying Washington relief to be an

unreasonable application of Strickland, and

granted his application for a writ of habeas

corpus accordingly. We review the district

court’s decision to grant habeas relief de novo.

See Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.

1999).

Washington claims that he was denied his right

to effective assistance of counsel under

Strickland, and "[i]t is past question that the

rule set forth in Strickland qualifies as

’clearly established Federal law, as determined

by the Supreme Court of the United States.’"

Williams, 120 S. Ct. at 1512. Under Strickland,

a prisoner must show both that counsel’s

representation fell below an objective standard

of reasonableness and that he was prejudiced as

a result. See Strickland, 466 U.S. at 687. The

performance standard gives a wide latitude of

permissible attorney conduct, and a prisoner

"must overcome the presumption that, under the

circumstances, the challenged action might be

considered sound trial strategy." Id. at 689

(quotation omitted). If the prisoner has

identified specific omissions, the court must

determine "whether, in light of all the

circumstances, the identified acts or omissions

were outside the wide range of professionally

competent assistance." Id. at 690. Once the

prisoner establishes his counsel’s

ineffectiveness, he must still demonstrate

prejudice: "The defendant must show that there is

a reasonable probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different." Id. at

694. Our task is to determine whether the

Wisconsin Court of Appeals rejection of

Washington’s ineffective-assistance claim was

either "contrary to, or involved an unreasonable

application of" the performance and prejudice

rules set out in Strickland. See Williams, 120 S.

Ct. at 1512. If either of these two measures of

error apply, Washington is entitled to relief.

Courts have been wrestling with the precise

meaning and scope of the statutory phrase

"contrary to, or involved an unreasonable

application of" under sec. 2254(d)(1), but a good

part of that struggle is over, thanks to the

recent Williams decision. First, Williams

clarifies that, although they will often overlap,

the phrases "contrary to" and "unreasonable

application of" have independent meaning. See 120

S. Ct. at 1520. In order for the state court’s

decision to be considered "contrary to . . .

clearly established Federal law as established by

the United States Supreme Court," that state

court’s decision must be "substantially different

from relevant [Supreme Court] precedent." Id. at

1519. Thus, under the "contrary to" clause of

sec. 2254(d)(1), we could grant a writ of habeas

corpus in what would seem to be a narrow range of

cases where the state court applied a rule that

contradicts the governing law as expounded in

Supreme Court cases or where the state court

confronts facts materially indistinguishable from

a Supreme Court case and nevertheless arrives at

a different result. Such decisions would be

"contrary to" clearly established federal law

within the meaning of sec. 2254(d)(1). See id. at

1519. However, if the state court applied the

proper rule, yet reached a conclusion that the

federal habeas court would not have independently

reached, the federal court cannot grant the writ

based on the "contrary to" clause. See id. at

1520.

The analysis under the "unreasonable application

of" clause, however, seems broader in that it

allows a federal habeas court to grant habeas

relief whenever the state court "unreasonably

applie[d] [a clearly established] principle to

the facts of the prisoner’s case." Williams, 120

S. Ct. at 1523. But, lest we think that this

provides us grounds for independent review of

state court decisions on questions of federal

law, the Supreme Court cautions that we must bear

in mind that "an unreasonable application of

federal law is different from an incorrect

application of federal law." Id. at 1522

(emphasis in original). When determining if a

state court decision "involved an unreasonable

application of clearly established Federal law,

as determined by the Supreme Court of the United

States," it seems that we are not permitted to

substitute our independent judgment as to the

correct outcome--as we could in a context, for

example, where we review a federal district court

decision de novo. Rather, a federal habeas court

operating pursuant to sec. 2254(d)(1) must only

ask if the state-court decision was reasonable.

Or, to put it slightly differently, we must

determine that the state-court decision was both

incorrect and unreasonable/5 before we can issue

a writ of habeas corpus. See id.

Our inquiry begins by looking at the decision

of the Wisconsin Court of Appeals. The legal

analysis in its unpublished opinion is sparse--

the opinion mainly recites facts. See Washington,

1994 WL 51649. The Wisconsin Court of Appeals

addressed four omissions Washington claimed

demonstrated Mr. Engle’s deficiency as counsel:

(1) Mr. Engle’s failure to produce Gola

Richardson as a witness at trial; (2) Mr. Engle’s

failure to read the police report or speak with

Leother Lobley; (3) Mr. Engle’s failure to

interview Sharon or David Brown or produce them

as witnesses at trial; and (4) Mr. Engle’s

failure to effectively cross-examine the bar

owner.

A. Mr. Engle’s Performance

The Wisconsin Court of Appeals properly

identified Strickland v. Washington as the source

of the rule to determine whether Mr. Engle’s

trial performance deprived Washington of his

Sixth Amendment right to effective assistance of

counsel, see Washington, 1994 WL 51649, at *2

("The lawyer’s efforts to contact [Gola]

Richardson and have her appear for trial were

’reasonable [ ] under prevailing professional

norms.’ Strickland, 466 U.S. at 688."), so it was

certainly not "contrary to" clearly established

federal law, here Strickland, in this respect.

The state court rejected Washington’s claims that

Mr. Engle rendered ineffective assistance by

failing to produce Gola Richardson as an alibi

witness at trial. See Washington, 1994 WL 51649,

at *2. The court found that Mr. Engle’s three

attempts to speak with Ms. Richardson and his

filing a subpoena two days before her testimony

was scheduled was "’reasonable under prevailing

professional norms.’" Id. (quoting Strickland,

466 U.S. at 688). The court also implicitly

concluded that because Mr. Engle did not find out

about Sharon or David Brown until the trial

began, his failure to investigate them was not

ineffective assistance under Strickland either.

See id. The Wisconsin Court of Appeals did,

however, find Mr. Engle’s failure to read the

police report to be deficient performance. See

id. We believe, that by finding Engle’s complete

failure to read the police report (deciphering

its handwriting if necessary) to be deficient

performance, the Wisconsin Court of Appeals

applied Strickland in an entirely reasonable

fashion. We are, however, unpersuaded of the

reasonableness of the court’s remaining

performance and prejudice conclusions.

Gola Richardson was going to be a critical

witness at Washington’s trial, and she was the

only witness listed on Washington’s pre-trial

Notice of Alibi. Mr. Engle filed this Notice of

Alibi on April 22, 1991, but in the following

month-and-a-half before the trial, he failed to

contact her. According to his testimony, Mr.

Engle tried to contact Gola Richardson three

times--each time without success. He claims to

have left his business card at what he thought

was Ms. Richardson’s house, but he took no

additional steps to reach her when she did not

contact him. He did not seek the assistance of an

investigator. Nor did he seem to take into

account, in the timing of her subpoena, that Ms.

Richardson was hard to reach. He subpoenaed her

on the second day of trial, just two days before

this woman he could never find was to testify for

his client. The best justification for Mr.

Engle’s delay was given by the trial court in

denying Washington’s post-conviction motion:

[U]nfortunately [this] is not an unusual way of

proceeding in these criminal cases. They often

get adjourned so often that in order not to

frustrate the witnesses, the attorneys don’t

subpoena until they’re actually going to testify.

. . . That’s a sad commentary on some of the

crowded calendars that the courts are working

under, but it happens more often than we like

where we have several cases scheduled and

ultimately one of those goes on and some of the

others have to be adjourned. . . . So I don’t

find that particularly unusual.

Ex. W at 92-93. The Wisconsin Court of Appeals

merely commented, "The trial court credited the

lawyer’s testimony and concluded that the lawyer

was not ineffective. We agree." Washington, 1994

WL 51649, at *2. We emphatically do not agree.

Under Strickland, lawyers are granted wide

latitude to make reasonable strategic decisions,

see 466 U.S. at 689, but placing witness

convenience above the vital interests of his

client does not make Mr. Engle’s decision

reasonable--or even really strategic. The delayed

issuance of a subpoena may be justified as a

reasonable tactic if, for example, the strategy

is to keep the identity of a defense witness from

the State. See Huffington v. Nuth, 140 F.3d 572,

579 (4th Cir. 1998). Here, however, Mr. Engle had

no semblance of a tactical reason for the delay,

nor can we think of one for him. His delay fails

to demonstrate the kind of minimal diligence in

trying to secure Ms. Richardson as a witness for

trial an effective counsel would have displayed.

Especially given that he was well-aware of the

fact that Gola Richardson was hard to find, and

despite the claim that this may be typical

performance in Wisconsin’s criminal courts, Mr.

Engle’s failure to produce Gola Richardson for

trial, given his minimal attempts to contact her

and his failure to subpoena her until two days

before she was to testify does not fall within

"the range of professionally competent

assistance" under Strickland. 466 U.S. at 690.

Mr. Engle’s performance falls so wide of the

mark, that we are left with the conviction that

the Wisconsin Court of Appeals decision to the

contrary was an unreasonable application of

Strickland’s performance standard.

The Wisconsin Court of Appeals also rejected

Washington’s argument that Mr. Engle was

ineffective in failing to produce or even to

contact Sharon Brown or David Brown. The court

rested this conclusion on the fact that the trial

court credited Mr. Engle’s testimony that he

first learned that Washington was with the Browns

at Gola Richardson’s house when Washington

testified to that effect on the stand. See

Washington, 1994 WL 51649, at *2./6 But Mr.

Engle also testified at the post-conviction

hearing that Washington had given him Sharon

Brown’s and David Brown’s names, along with many

others, immediately before trial. The trial court

and the Court of Appeals apparently credited this

statement as well. Based on this testimony by Mr.

Engle, we infer that, when he received the names

on the first day of trial, he did not ask

Washington about any of the proposed witnesses,

nor did he ever attempt to ascertain what they

might contribute to his case. Mr. Engle explained

his failure at the post-conviction hearing:

Q: Did [Washington] indicate to you why he thought

those fourteen people/7 named there might be

important as witnesses in this case?

A: We didn’t even have time to discuss it because

the trial started immediately thereafter.

Q: Did you request an adjournment based on this

potentially new information or new witnesses?

A: No, I didn’t. Because I had been asking him for

a list of witnesses for months, and it certainly

isn’t the Court’s fault nor is it my fault if I

don’t get this material when it’s asked for. I

can’t blame the Court and ask for a postponement

when you don’t get the cooperation of your

client.

. . .

Q: So aside from Gola Richardson and [Washington’s

former counsel], did you know any of those other

people on that list from your discussions with

Mr. Washington or your investigation of the case?

A: No.

Q: Did you discuss those names with him at all

during the breaks/8 in the course of the trial?

A: No, I didn’t.

. . .

Q: Did you ever ask him if those potential

witnesses had phone numbers that Mr. Washington

could provide to you?

A: I asked him to provide [the witnesses] at the

trial if he could do so and he did produce two of

them. Namely, he produced Sandra Bloe [sic] and

he produced Jerome Pickens, and I used both of

them.

Q: In other words, you left it to your client to

try to get those witnesses to court?

A: There was no way I could have an opportunity to

contact them at that late time. I was busy trying

the case.

Ex. W. at 15-17. Based on this testimony, not

only is it clear that Mr. Engle never attempted

to contact Sharon or David Brown, but he never

attempted to contact a single witness besides

Gola Richardson. Mr. Engle owed Washington "a

duty to make a reasonable investigation or to

make a reasonable decision that makes particular

investigations unnecessary," Strickland, 466 U.S.

at 691, and a failure to investigate can

certainly constitute ineffective assistance. See,

e.g., White v. Godinez, 143 F.3d 1049, 1055 (7th

Cir. 1998). Telling a client, who is in custody

awaiting trial, to produce his own witnesses (as

did Mr. Engle) falls painfully short of

conducting a reasonable investigation, especially

given that Sharon and David Brown did not have a

telephone. Perhaps Washington could have

dispatched a pigeon from his prison cell with a

message for the Browns, but, short of this, it is

wholly unreasonable for a lawyer to instruct his

incarcerated client to get in touch with people

who don’t have a phone. Further, as we have

noted, Mr. Engle admitted that he did no

investigating because of the "late date" and

because he was "busy trying the case." It is hard

to imagine what kind of case Mr. Engle was

thinking of presenting, given that he had never

spoken to a single witness.

The failure to investigate a particular lead

may be excused if a lawyer has made a "reasonable

decision that makes particular investigations

unnecessary." Strickland, 466 U.S. at 691. But

here, Mr. Engle was simply too "busy" and

apparently gave no thought to the potential

benefits of investigation. The Wisconsin Court of

Appeals never explicitly found this to be

effective assistance, instead merely stating,

"Furthermore, Washington has not demonstrated

that the trial lawyer’s failure to seek the

adjournment satisfies the prejudice component of

the two-part Strickland test." Washington, 1994

WL 51649, at *3. To the extent that this implies

that the state court might have concluded that

Mr. Engle had rendered effective assistance while

failing even to attempt to contact any other

witness besides Ms. Richardson, that conclusion

would have been based on an unreasonable

understanding of Strickland’s requirement that an

attorney conduct a reasonable investigation in

connection with his client’s case.

Thus, Washington has identified three aspects in

which Mr. Engle’s performance fell below that of

a reasonably competent, professional attorney.

Even the Wisconsin Court of Appeals found the

failure to read the police report ineffective,

and had it properly applied Strickland, it would

have concluded that Mr. Engle’s failure to

subpoena a hard-to-find witness until the

eleventh hour and his failure to try to ascertain

what exculpatory evidence "new" witnesses might

have were flagrant examples of ineffective

assistance. Therefore, the Wisconsin Court of

Appeals adjudication "involved an unreasonable

application" of the attorney performance standard

contained in Strickland.

B. Prejudice to Washington

But demonstrating that his trial counsel was

egregiously ineffective--which he has certainly

done--is not enough to secure Washington his

desired writ of habeas corpus. In order to get

relief, Washington must also show that he was

prejudiced by Mr. Engle’s ineffective assistance.

See Strickland, 466 U.S. at 691. Under

Strickland, Washington "must show that there is

a reasonable probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different." Id. at

694. The Supreme Court has also stated, however,

that "an analysis focusing solely on mere outcome

determination, without attention to whether the

result of the proceeding was fundamentally unfair

or unreliable, is defective." Lockhart v.

Fretwell, 506 U.S. 364, 369 (1993). See also Nix

v. Whiteside, 475 U.S. 157, 175-76 (1986)

(explaining that even if a defendant’s perjury

might have led to an acquittal, it is not

fundamentally unfair to conclude that he was not

"prejudiced" by counsel’s interference with his

intended perjury). There is some superficial

tension between Strickland’s statement of the

prejudice standard, which looks to outcome

determination, and Lockhart’s, which looks beyond

outcome determination to the fundamental fairness

of the proceeding, but this tension evaporates

when one understands that the heightened

prejudice standard in Lockhart "concerns the

unusual circumstance where the defendant attempts

to demonstrate prejudice based on considerations

that, as a matter of law, ought not inform the

inquiry." Lockhart, 506 U.S. at 373 (O’Connor,

J., concurring). The Supreme Court recently

removed all doubt--again in its recent Williams

decision--that Strickland governs the prejudice

inquiry in most habeas cases and that the

decision in Lockhart does "not justify a

departure from a straight-forward application of

Strickland when the ineffectiveness of counsel

does deprive the defendant of a substantive or

procedural right to which the law entitles him."

Williams, 120 S. Ct. at 1513 (emphasis in

original). The Wisconsin Court of Appeals

apparently did not fully grasp the proper

interaction between Strickland and Lockhart in

determining that Washington did not show

prejudice, and in so doing, its decision was both

"contrary to" and "involved an unreasonable

application of" the proper prejudice analysis

prescribed by the Supreme Court.

While holding that Washington had not satisfied

the prejudice requirement, the Wisconsin Court of

Appeals apparently applied the prejudice standard

enunciated in Lockhart, explaining that

"Washington has not demonstrated that his trial

lawyer’s failure to read the police report of the

interview with Lobley, and his subsequent failure

to call Lobley as a witness, made ’the result of

the trial unreliable or the proceeding

fundamentally unfair.’ See Lockhart, 113 S. Ct.

at 844." Washington, 1994 WL 51649, at *2. See

also id. at *3 ("[W]e cannot say that [Sharon

Brown’s and David Brown’s] failure to testify

made the ’the result of the trial unreliable or

the proceeding fundamentally unfair.’ See

Lockhart, 113 S. Ct. at 844.") In his attempt to

show prejudice, however, Washington is not

relying on considerations--like the reliance on

a state-court ruling that had been overturned (as

did the defendant in Lockhart) or his lawyer’s

refusal to let him commit perjury (as did the

defendant in Nix)--that would trigger the

heightened prejudice standard of Lockhart.

Washington is, instead, relying on Mr. Engle’s

failure to investigate, and an adequate

investigation is surely a "right to which the law

entitles him." Williams, 120 S. Ct. at 1513.

Prejudice in Washington’s case, therefore, should

have been determined under the Strickland

standard: did Washington show "that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different[?]"

Strickland, 466 U.S. at 694.

Williams confirms that Lockhart did not modify

or supplant Strickland’s prejudice test in a case

such as this one, see Williams, 120 S. Ct. at

1513, but the Wisconsin Court of Appeals

apparently believed that there was a "Lockhart"

principle applicable here. In doing so, it

analyzed Washington’s ineffective-assistance

claim under the wrong standard. This error in

itself probably justifies granting Washington’s

application for a writ of habeas corpus under

sec. 2254(d)(1). We are, however, likewise

convinced that even if the Wisconsin Court of

Appeals somehow silently applied the Strickland

prejudice standard (without stating it or citing

to it/9), its decision that Washington was not

prejudiced by Mr. Engle’s unprofessional errors

involved an unreasonable application of that

standard.

The Wisconsin Court of Appeals rested its

finding that Mr. Engle’s failure to investigate

Sharon and David Brown was harmless on,

apparently, three grounds: (1) the untimeliness

of Washington’s disclosure, (2) the fact that a

mid-trial adjournment would have likely been

denied and (3) the belief that Sharon Brown’s and

David Brown’s testimony would have been

"cumulative" of Sandra Blue’s and Jerome

Pickens’s testimony. See Washington, 1994 WL

51649, at *2-*3. The court also viewed Mr.

Engle’s failure to read the police report or to

contact Leother Lobley as harmless because

Washington had been identified by the two bar

patrons and Lobley’s testimony would have been

cumulative. Therefore, the testimony would not

have tended to diminish the possibility that

Washington actually committed the crime. See id.

at *2. Also, the Court of Appeals noted that if

Lobley had testified, the State would have put

Clifford Beasley on the stand and he would have

contradicted Lobley’s testimony about the

shotguns. See id. But the Wisconsin Court of

Appeals apparently did not consider the

accumulation of these errors as it would affect

Washington’s likelihood of conviction.

The state’s case against Washington was far

from unassailable, and we know that "a verdict or

conclusion only weakly supported by the record is

more likely to have been affected by errors than

one with overwhelming record support."

Strickland, 466 U.S. at 696. The tavern owner

could not identify Washington, and there is some

indication that he erroneously pointed to

Washington when attempting to identify

codefendant Johnson. James Davis identified

Washington at trial, but his recollection may be

suspect because he remembered only two suspects

being presented by the police on the day of the

crime. Jane Dornuff also purportedly identified

Washington, and claimed that he was the man

carrying the shotgun. But at the preliminary

hearing, she could not recall whether Johnson was

carrying the handgun or the shotgun, and she may

have told the police that she was positive

Johnson carried the shotgun. Further, the

prosecution linked Washington to the robbery by

adamantly arguing that the shotguns were his and

that he had used them in the robbery. Lobley, if

called, would have testified that the guns found

in the automobile belonged to Shorty G. This

testimony would have undercut the impact of this

solitary physical evidence.

If the case Mr. Engle presented was

Washington’s best case, the conviction would have

stood on solid ground. But Washington’s defense

was crippled. He testified, but only with

necessarily weak corroboration from Blue--who had

no direct knowledge of Washington’s whereabouts

after noon on the day of the robbery. Unlike

Blue, Gola Richardson, Sharon Brown, David Brown

and Jerome Pickens were with Washington at 24th

and Vine at about the time the Jolly Skot was

robbed. Jerome Pickens was the only one of these

to testify, corroborating Washington’s story, but

Pickens’s credibility was impaired because of his

prior convictions. The impact of three more

witnesses corroborating Washington’s alibi would

not have been "cumulative" as the Wisconsin Court

of Appeals believed./10 Evidence is cumulative

when it "supports a fact established by existing

evidence," Black’s Law Dictionary 577 (7th ed. 1999),

but Washington’s whereabouts on the day of the

robbery was far from established--it was the

issue in the case. The fact that Pickens had

already testified to facts consistent with

Washington’s alibi did not render additional

testimony cumulative. Indeed, the additional

testimony of Gola Richardson, Sharon Brown and

David Brown--none of whom could have been

impeached as having a criminal record--would have

added a great deal of substance and credibility

to Washington’s alibi. See Montgomery v.

Petersen, 846 F.2d 407, 411-15 (7th Cir. 1987)

(finding counsel ineffective for not calling

additional disinterested alibi witnesses not

subject to the same impeachment as family

members); Crisp v. Duckworth, 743 F.2d 580, 585

(7th Cir. 1984) (finding that "[h]aving

independent witnesses corroborate a defendant’s

story may be essential" and "testimony of

additional witnesses cannot automatically be

categorized as cumulative"). Rather than one

direct alibi witness with a criminal record,

Washington could have had three potentially more

credible witnesses, all of whom would have

supported his claim that he was at Gola

Richardson’s when the Jolly Skot was robbed.

Plus, the jury surely wondered where these people

were, especially Ms. Richardson who had been

named on Washington’s notice of alibi and who Mr.

Engle specifically mentioned at least at voir

dire. There was a negative inference against

Washington based on their absence. See Harris v.

Reed, 894 F.2d 871, 879 (7th Cir. 1990) (holding

that counsel’s failure to produce witnesses

referred to in opening statement was

prejudicial). Given the absence of these

witnesses, the jury had good reason to find

Washington’s alibi dubious.

Also, if Mr. Engle had read Detective Hudlet’s

report, he would have known both to cross-examine

the reporting officer and to produce Leother

Lobley as a witness. Not only would Lobley have

corroborated Washington’s alibi by confirming

that he picked Washington up at 24th and Vine at

about 5:45, but his testimony also would have

distanced Washington from the shotguns by

explaining that Shorty G. put the guns in the car

and that Washington knew nothing about them. The

shotguns were the State’s only physical evidence

linking Washington to the robbery, and they were

a key part of the State’s case against him. At

trial, only Washington testified that the

shotguns were not his, so Lobley’s testimony to

the same effect could have helped a great deal.

The Wisconsin Court of Appeals believed that,

because Lobley’s testimony could have been

contradicted by Clifford Beasley--Beasley had

told the police that the shotguns were

Washington’s--Lobley’s absence was not

prejudicial. But, the mere fact that some

negative evidence would have come in with the

positive does not eliminate the prejudicial

effect of leaving corroborative evidence

unintroduced.

Evaluated individually, these errors may or may

not have been prejudicial to Washington, but we

must assess "the totality of the omitted

evidence" under Strickland rather than the

individual errors. See Williams, 120 S. Ct. at

1515. Considering the "totality of the evidence

before the . . . jury," Strickland, 466 U.S. at

695, Engle’s unprofessional errors were

prejudicial to Washington. Engle did not just

botch up one witness or one argument or one

issue--he repeatedly demonstrated a lack of

diligence required for a vigorous defense.

Engle’s performance "so undermined the proper

functioning of the adversarial process that the

trial cannot be relied on as having produced a

just result." Strickland, 466 U.S. at 686. All

Washington needed to do was establish a

reasonable doubt, and having additional, credible

alibi witnesses would have covered a lot of

ground toward that goal. The Wisconsin Court of

Appeals looked at the mass of evidence that

Washington could have produced but for Mr.

Engle’s errors, and it unreasonably concluded

that its absence did not cause prejudice.

Although questions of this kind do not lend

themselves to the mathematical certainty of an

acquittal, the proper application of Strickland

should have left the Wisconsin Court of Appeals

with the belief that acquittal was reasonably

probable if the jury had heard all of

Washington’s evidence. Therefore, we find that--

in addition to being "contrary to" Strickland--

the decision of the Wisconsin Court of Appeals

"involved an unreasonable application of"

Strickland’s prejudice component to the facts of

this case.

III. Conclusion

Accordingly, the judgment of the district court

to grant Washington’s application for a writ of

habeas corpus under sec. 2254(d)(1) is Affirmed.

The State shall retry Washington within 120 days,

or failing that, Washington is entitled to be

released.

/1 James L. Johnson was Washington’s codefendant, so

to avoid any confusion between the bar owner and

the codefendant, this opinion will refer to James

D. Johnson simply as "the bar owner" and will

refer to James L. Johnson as "codefendant

Johnson" or just "Johnson."

/2 Johnson had been apprehended on July 17, 1990.

When the police searched him, they found a .25

caliber handgun, .25 caliber shells and Jane

Dornuff’s Wisconsin driver’s license and

identification card.

/3 Mr. Engle did cross-examine a police officer

about the lineup at the police station, of which

Washington was not a member. But he never clearly

impeached the bar owner. Nonetheless, Washington

does not pursue this issue here.

/4 Sharon Brown is occasionally referred to as

"Sharon Richardson" in some transcripts and

materials. This is not an important detail, so we

will just refer to her as "Sharon Brown."

/5 We think it safe to assume that there is no such

thing as a correct, yet unreasonable, application

of federal law.

/6 Washington disputed this, claiming that he gave

this list of witnesses to Engle well before

trial. However, we need not address this

disparity because we would reach the same

conclusion under either version of the facts.

/7 As mentioned before, this list included

Washington’s former counsel (who had been

replaced by Mr. Engle), Gola Richardson, Sharon

Brown, David Brown, Jerome Pickens, Sandra Blue

and Leother Lobley, as well as others not

relevant here.

/8 There was at least one sizable break in the

trial. The trial did not begin on the third day,

Wednesday June 12, until 2:00 in the afternoon.

(The attorneys and the court had agreed the

previous day to delay the beginning on Wednesday

so that Ms. Heard, the prosecutor in the case,

could attend her son’s graduation from

kindergarten. See Ex. Q at 23-24.) Mr. Engle did

not attempt to speak with his client on that free

Wednesday morning.

/9 The Wisconsin Court of Appeals did make one brief

mention of "the two-part Strickland test," see

Washington, 1994 WL 51649, at *2, but this

reference was made more in passing than as a

citation to a legal standard or to authority. For

each of its prejudice rulings, the court clearly

cited Lockhart, and only Lockhart, as authority.

/10 Neither Sharon Brown nor Leother Lobley testified

at the post-conviction hearing, but, by finding

that their testimony would have been cumulative,

the Wisconsin Court of Appeals assumed that their

testimony would have been consistent with

Washington’s alibi. We do too.