Goodman, Warren v. Bertrand, Daniel

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3946

WARREN GOODMAN,

Petitioner-Appellant,

v.

DANIEL BERTRAND, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00-C-0650—Patricia J. Gorence, Magistrate Judge.

____________

ARGUED DECEMBER 9, 2005—DECIDED OCTOBER 31, 2006

____________

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Fourteen years ago, an individ-

ual entered a Milwaukee convenience store, robbed the

store’s manager and cashier at gunpoint, and then fled in a

getaway car. After a first trial ended in a hung jury, a

second jury convicted Warren Goodman of armed robbery

and being a felon in possession of a firearm, and he was

sentenced to twenty-two years’ imprisonment. Having

exhausted his state court remedies, Goodman petitioned for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

challenging the effectiveness of his counsel during the

second trial. The United States District Court for the

2 No. 04-3946

Eastern District of Wisconsin denied relief. Unlike the

district court, we find, under the Antiterrorism and Effec-

tive Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 (“AEDPA”), that the state court decision was

contrary to the ineffective assistance of counsel standard set

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

Further, we conclude, under AEDPA, that the state court

decision was an unreasonable application of Strickland

because the cumulative effect of counsel’s errors constituted

ineffective assistance of counsel. Therefore, we reverse the

judgment of the district court and remand for the entry of

an order granting the writ.

I. BACKGROUND

On July 28, 1992, an individual robbed Kohl’s Food Store,

a convenience store in Milwaukee, holding the store’s

cashier, Ilene Retzlaff, and manager, Daniel Kollath, at

gunpoint. After the two complied with the gunman’s

demands, the assailant fled in a getaway car, driven by an

accomplice. Blocks later, the men switched to a second

getaway car that was driven by a third accomplice. Later

that day, police stopped Mark Smith and Larry Ross, who

were riding in a car matching the description of the second

getaway car. Police retrieved two handguns and $200 from

the car.1 Smith eventually confessed that he acted as a

lookout in the robbery, and fingered Ross as an accomplice.

Smith also brokered a deal with prosecutors in which, in

exchange for more lenient punishment, he implicated

Goodman. In a lineup, the store manager Kollath initially

identified another person as the robber, but in a subsequent

lineup he chose Goodman. The store cashier, Retzlaff, did

not pick Goodman from the lineup, instead choosing

1

There is no indication in the record that the police attempted to

retrieve fingerprints from the seized guns.

No. 04-3946 3

another individual as the person who most resembled the

robber.

A. Goodman’s first and second trials

The case against Goodman went to trial twice. In each

instance, the facts of the robbery were essentially undis-

puted; only the identification of Goodman as the perpetrator

was at issue. In the first trial, confessed-lookout Smith and

store manager Kollath both testified that Goodman robbed

the store. The store cashier testified that she could not

identify Goodman as the robber and that she chose another

person from the police lineup. Goodman also testified on his

own behalf. The court declared a mistrial after the jury was

unable to reach a verdict.

Smith received six years’ imprisonment for his role in the

robbery, in exchange for his testimony in the first

trial. Ross, who was serving a seventeen-year sentence for

being the driver of the second getaway car, contacted the

prosecution after the first trial and agreed to testify against

Goodman at the retrial and to identify the driver of the first

getaway car, in exchange for a recommendation to reduce

his sentence. Ross later named Percy Sallis, who confessed

that he was the first getaway car driver.

At the second trial, Goodman was represented by a

different lawyer. Kollath, as well as confessed accomplices

Smith, Ross, and Sallis, all testified that Goodman commit-

ted the robbery. Unlike the first trial, the store’s cashier,

Retzlaff, did not testify because she was on vacation and

Goodman’s lawyer failed to subpoena her. Goodman’s

counsel erroneously believed that a subpoena was unneces-

sary because the government would call Retzlaff as a

witness. Because Goodman’s counsel failed to demonstrate

that Retzlaff was unavailable to testify in person, the trial

court excluded portions of her prior testimony from the

second trial. So in the second trial, four witnesses, including

4 No. 04-3946

the three accomplices, identified Goodman as the robber,

and Retzlaff was not present to testify.

Other problems arose for Goodman’s counsel during the

course of the second trial. On direct examination, Good-

man’s counsel asked Goodman a question that ultimately

led the court to allow cross-examination on two of Good-

man’s previous armed robbery convictions.2 As the parties

had earlier stipulated to Goodman’s status as a con-

victed felon, in the normal course of proceedings the

prosecution would have been precluded from raising the

nature of the prior felonies.

In addition, prosecution witnesses Mark Smith and Larry

Ross testified regarding threats they received concerning

their participation in the Goodman trial. While the wit-

nesses acknowledged that the threats were not made by

Goodman, nor was he was present when they were made,

the witnesses claimed that the threats were intended to

prevent them from testifying against Goodman. Goodman’s

2

During direct examination, Goodman’s counsel, while show-

ing Goodman exhibits of guns connected to the crime, abruptly

asked, “[D]id you do any armed robberies?” to which the defendant

answered, “No.” The prosecution asked to approach the bench, and

there was an unrecorded sidebar. Goodman’s counsel then

rephrased the question, asking “Did you do the armed robbery at

the Marks Big Boy that they accused you of?” to which the

defendant again replied, “No.” At the conclusion of Goodman’s

direct examination, the trial judge briefly dismissed the jury, and

ruled that counsel’s use of the vague term “any” could leave the

jury with the mistaken impression that the defendant had never

committed any armed robberies, when in fact he had previously

been convicted of two robberies. Goodman’s counsel argued that

he was clearly referring to the Kohl’s Food Store robbery and

another robbery at the Marks Big Boy store for which Goodman

was charged but later cleared. However, the court disagreed and

the prosecution was permitted to cross-examine Goodman on the

issue of which armed robberies he had committed.

No. 04-3946 5

counsel objected, asserting that the witnesses’ testimony

impermissibly linked Goodman to the threats in the minds

of the jurors. The trial court admitted the testimony on

limited grounds, stating, outside the presence of the jury,

that such testimony would reflect the witnesses’ credibility

by demonstrating that they had something to lose as well as

something to gain by testifying. Goodman’s counsel later

failed to request a jury instruction explaining to the jury

the limited manner in which they could use the testimony.

In addition, Goodman’s counsel did not object after the

prosecution made misleading statements on direct examina-

tion indicating that the state had not given Ross any reason

to testify, when in fact Ross had agreed to do so in the

hopes of receiving a reduced sentence. During closing

argument the prosecutor also made false statements

improperly bolstering Sallis’s testimony by stating that

Sallis could not have been charged or convicted without

his voluntary confession while omitting the fact that

Ross had named Sallis as an accomplice before Sallis

confessed. Goodman’s counsel did not object or request

a mistrial.

The jury ultimately found Goodman guilty, and he

was sentenced to twenty-two years for the robbery and

for being a felon in possession of a firearm during its

commission. For his testimony and at the government’s

recommendation, Ross’s initial seventeen-year sentence was

later reduced to twelve years. Sallis received probation,

conditioned on six months of work release, for his part in

the robbery.

B. Post-conviction proceedings

After his conviction, Goodman sought relief in state court.

Goodman argued that, in violation of the Sixth Amendment,

his second trial counsel was ineffective for (1) opening the

door to cross-examination on Goodman’s two prior convic-

6 No. 04-3946

tions for armed robbery, (2) failing to procure copies of

government witnesses’ prior inconsistent testimony, (3)

failing to subpoena the store’s cashier to testify, and (4)

being generally unfamiliar with the case. The trial court

denied the motion. The Wisconsin Court of Appeals af-

firmed stating as follows:

[W]e, like the trial court, conclude that the record

conclusively establishes that Goodman was not

prejudiced within the meaning of Strickland. . . . In

order to show 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. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome. The Strickland test is

not an outcome-determinative test. In decisions

following Strickland, the Supreme Court has

reaffirmed that the touchstone of the prejudice

component is whether counsel’s deficient perfor-

mance renders the result of the trial unreliable or

the proceeding fundamentally unfair.

The court concluded that, even if his counsel’s perfor-

mance was deficient, Goodman’s Sixth Amendment claim

failed because “none of Goodman’s counsel’s alleged defi-

cient conduct prejudiced him such that the result of

the trial was unreliable.”3

Goodman then presented his Sixth Amendment claim in a

state habeas petition pursuant to Wis. Stat. § 974.06 and

argued that his trial counsel was ineffective for (1) failing

to request a limiting instruction regarding the testimony of

threats, (2) failing to object regarding the denial of his right

to confront witnesses against him, and (3) failing to object

3

State v. Goodman, No. 96-0017-cr, unpublished slip op. (Wis. Ct.

App. Mar. 11, 1997).

No. 04-3946 7

to prosecutorial misconduct during closing arguments. The

trial court denied relief, and the appellate court affirmed.

The Wisconsin Supreme Court denied habeas review.

Following these adverse rulings in state court, Goodman

timely filed his federal habeas petition pursuant to 28

U.S.C. § 2254 in the United States District Court for the

Eastern District of Wisconsin. Goodman maintained that,

during direct appeal, the state court erred when it required

him to prove the alleged errors of his counsel rendered his

second trial unreliable or fundamentally unfair. The district

court denied habeas relief, holding that the state court

decision was not an unreasonable application of, or contrary

to, clearly established federal law. See 28 U.S.C. § 2254.

Goodman timely appealed.

II. ANALYSIS

This appeal presents two questions: Did the state court

apply the wrong legal standard to Goodman’s ineffective

assistance of counsel claim? And, under the correct legal

framework, did the court unreasonably reject Goodman’s

Sixth Amendment claim? Reviewing the district court’s

denial of habeas relief de novo, Van Patten v. Deppisch, 434

F.3d 1038, 1042 (7th Cir. 2006), we affirmatively answer

both questions.

Under the relevant provision of AEDPA, Goodman is

entitled to habeas relief if “the relevant state-court decision

was either (1) ‘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 v. Taylor,

529 U.S. 362, 404-05 (2000) (quoting 28 U.S.C. § 2254(d)(1));

see also Sweeney v. Carter, 361 F.3d 327, 330 (7th Cir.

2004). A state court decision is contrary to

clearly established federal law “when the state court applies

8 No. 04-3946

a rule that contradicts the governing law set forth by the

Supreme Court or, on facts materially indistinguishable

from the facts of an applicable Supreme Court precedent,

reaches a different result.” Badelle v. Correll, 452 F.3d 648,

654 (7th Cir. 2006) (internal citations omitted). We do not

use hindsight to assess whether a law is clearly established;

instead our inquiry looks to the law of the Supreme Court

at the time of the last state court decision on the merits,

which, in this case, is the Wisconsin Court of Appeals

decision disposing of Goodman’s direct appeal. See Charlton

v. Davis, 439 F.3d 369, 374 (7th Cir. 2006) (“The relevant

decision for purposes of our assessment is the decision of

the last state court to rule on the merits of the petitioner’s

claim . . .”).

In Strickland, the Supreme Court announced the frame-

work for assessing Sixth Amendment ineffective assistance

of counsel claims, and the Strickland framework was clearly

established by the time of Goodman’s direct appeal. See

Williams, 529 U.S. at 391 (“It 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.’ ”). A petitioner asserting an ineffective

assistance of counsel claim under Strickland must show

that his counsel’s performance was deficient and that the

deficient performance prejudiced the defense. Counsel’s

performance is deficient when the “representation f[alls]

below an objective standard of reasonableness” under

“prevailing professional norms.” Strickland, 466 U.S. at

688. To establish prejudice, the petitioner 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. Goodman argues that the

state court’s decision, requiring him to demonstrate that his

second trial was fundamentally unfair, was contrary to the

prejudice analysis set forth in Strickland, which requires

him only to show there is a reasonable probability of a

No. 04-3946 9

different result. The district court found that the state court

decision comported with Strickland and, therefore, that

Goodman was not entitled to relief. We disagree.

Previously, there was some confusion among courts

attempting to reconcile Strickland’s prejudice analysis,

which looks at the reasonable probability of a different

result, with the Supreme Court’s subsequent statement in

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993), that “an

analysis focusing solely on mere outcome determination,

without attention to whether the result of the proceed-

ing was fundamentally unfair or unreliable, is defective.” In

Washington v. Smith, a case strikingly similar to the one

now before us, we addressed this seeming contradiction in

the Court’s precedent:

There is some superficial tension between Strick-

land’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 “con-

cerns the unusual circumstance where the defen-

dant 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

10 No. 04-3946

interaction between Strickland and Lockhart in

determining that Washington did not show preju-

dice, and in so doing, its decision was both “con-

trary to” and “involved an unreasonable application

of” the proper prejudice analysis prescribed by the

Supreme Court.

Washington v. Smith, 219 F.3d 620, 632-33 (7th Cir. 2000).

In short, “Lockhart did not modify or supplant Strickland’s

prejudice test in a case such as this one . . . .” Id. at 633.

Lockhart’s heightened prejudice analysis only applies in

cases where the defendant challenges his conviction

based upon unusual circumstances that, as a matter of law,

do not typically inform the court’s inquiry. For example,

such unusual circumstances could occur when a state court

relies on overruled law, see Lockhart, 506 U.S. at 384, or the

defendant’s lawyer refuses to let him commit perjury, see

Nix v. Whiteside, 475 U.S. 157, 171 (1986). Absent such

unusual circumstances, Strickland’s prejudice analysis is

the proper framework for assessing a Sixth Amendment

claim.

“One of the most obvious ways a state court may render

a decision ‘contrary to’ the Supreme Court’s precedents is

when it sets forth the wrong legal framework.” Van Patten,

434 F.3d at 1042 n.2 (citing Williams, 529 U.S. at 397-98).

In Washington, the petitioner argued that his counsel was

ineffective for, among other reasons, failing to subpoena a

crucial defense witness. The Wisconsin Court of Appeals

applied Lockhart’s heightened prejudice standard and ruled

that the petitioner’s Sixth Amendment claim failed because

he failed to show that the alleged deficiencies rendered “the

result of the trial unreliable or the proceeding fundamen-

tally unfair.” State v. Washington, No. 93-1129-CR, 1994

WL 51649, at *2 (Wis. Ct. App. Feb. 22, 1994) (quoting

Lockhart, 506 U.S. at 369). We concluded that the state

court decision applied the wrong legal principle and af-

firmed habeas relief. Washington, 219 F.3d at 632-33, 635.

No. 04-3946 11

To be sure, in Washington, the state appellate court

mentioned Strickland only in passing and exclusively

applied Lockhart in its prejudice analysis. Id. at 633 n.9.

This case is somewhat more complicated because the

state court cited Strickland in its opinion, set forth the two-

prong Strickland test, and even concluded that “Goodman

was not prejudiced within the meaning of Strickland.” In

denying relief, the district court reasoned that these

references suggest the appellate court correctly applied the

Strickland standard. We disagree. There is a difference

between what the state court said and what it actually did.

Although, in a boilerplate fashion, the court cited the

Strickland rule, it repeatedly reasoned that Goodman failed

to show that his second trial was “fundamentally unfair” or

“unreliable.” In conflating Lockhart’s heightened prejudice

standard with Strickland’s prejudice analysis, the state

court decision is “contrary to” clearly established federal

law. 28 U.S.C. § 2254(d)(1).

Even if the Wisconsin Court of Appeals decision were not

contrary to federal law, it was an unreasonable application

of Strickland. The“unreasonable application” prong of

AEDPA means the state court’s decision lies “well outside

the boundaries of permissible differences of opinion.”

Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see

also Jackson v. Frank, 348 F.3d 658, 662 (7th Cir. 2003)

(“We have held that under this criterion, habeas relief

should not be granted if the state court decision can be said

to be one of several equally-plausible outcomes.”). In the

habeas context, an “unreasonable” application is more than

simply an “incorrect” application, so “a federal habeas court

may not issue the writ simply because that court concludes

in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously

or incorrectly.” Williams, 529 U.S. at 411. Instead, “the

state-court decision must be both incorrect and unreason-

able.” Woods v. McBride, 430 F.3d 813, 817 (7th Cir. 2005).

12 No. 04-3946

As we have stated, Strickland instructs that Goodman

must show that his lawyer’s performance was deficient and

that he was prejudiced as a result. 466 U.S. at 688. Al-

though counsel is strongly presumed to have rendered

adequate assistance based upon his or her reasonable

professional judgment, United States v. Traeger, 289 F.3d

461, 470 (7th Cir. 2002), “it is not the role of a reviewing

court to engage in a post hoc rationalization for an attor-

ney’s actions by constructing strategic defenses that counsel

does not offer . . . .” Brown v. Sternes, 304 F.3d 677, 691 (7th

Cir. 2002) (internal quotation marks and citation omitted).

Goodman argues that his trial counsel’s performance fell

below an objective standard of reasonableness because his

lawyer: (1) opened the door for admission of Goodman’s

two prior convictions for armed robbery, (2) failed to

subpoena the store’s cashier to testify, (3) failed to request

a limiting instruction regarding the threats evidence, (4)

failed to properly object and preserve the record regard-

ing the denial of Goodman’s right to confront the wit-

nesses against him, and (5) failed to object and request a

mistrial based upon prosecutorial misconduct in closing

argument. Like the petitioner in Washington, Goodman

maintains that his counsel was ineffective for failing to

subpoena a critical defense witness, who testified in the

first trial that she was unable to identify Goodman from a

lineup after the robbery. Goodman’s lawyer failed to

subpoena Retzlaff because he (erroneously) believed the

government would call her as a witness; much to his law-

yer’s dismay and Goodman’s peril, this did not occur.

Further, counsel’s attempts to introduce at retrial portions

of Retzlaff’s testimony during the first trial were unsuccess-

ful because, under Federal Rule of Evidence 804(b)(1), he

failed to demonstrate that she was unavailable to testify in

No. 04-3946 13

person.4 There is little tactical wisdom in counsel resting on

his hands and assuming the government would help make

the defense case for him.

To show prejudice, Goodman points out that his first trial,

in which Retzlaff testified, ended in a hung jury. The

government counters that Goodman was not prejudiced

by counsel’s alleged deficiencies because, unlike the first

trial where only one accomplice and the store manager

testified, by the time of the second trial, three confessed

accomplices and the manager testified against Goodman.

The Wisconsin Court of Appeals agreed that the error

was harmless, reasoning that “even if the witness had

testified in the second trial, it would have had no effect

on the outcome of the trial because the victim and all

three accomplices identified Goodman as the robber.”

However, the cumulative effect of trial counsel’s errors

sufficiently undermines our confidence in the outcome of the

proceeding. Rather than evaluating each error in isolation,

as did the Wisconsin Court of Appeals, the pattern of

counsel’s deficiencies must be considered in their totality.

Washington, 219 F.3d at 634-35 (“Evaluated individually,

these errors . . . may not have been prejudicial to Washing-

ton, but we must assess ‘the totality of the omitted evidence’

under Strickland rather than the individual errors.”). In

weighing each error individually, the Wisconsin Court of

4

Federal Rule of Evidence 804(b)(1) provides that, by excep-

tion to the hearsay rule, former testimony of an unavailable

witness is admissible if it is “[t]estimony given as a witness

at another hearing of the same or a different proceeding, or in

a deposition taken in compliance with law in the course of the

same or another proceeding, if the party against whom the

testimony is now offered, or, in a civil action or proceeding, a

predecessor in interest, had an opportunity and similar motive

to develop the testimony by direct, cross, or redirect examination.”

14 No. 04-3946

Appeals overlooked a pattern of ineffective assistance and

unreasonably applied Strickland.

The details of the robbery were largely undisputed at

trial; thus, the case centered on the identification of Good-

man as the assailant and, crucially, witness credibility.

Three confessed accomplices testified against Goodman; but

their credibility is questionable, given their incentive to

curry favor with the government regarding their own fate.

“Where the state’s case consists chiefly or solely upon the

word of an accomplice . . . courts have recognized the great

importance to the defendant of evidence of direct contradic-

tion or material corroboration from other sources.” Mont-

gomery v. Petersen, 846 F.2d 407, 413-14 (7th Cir. 1988). In

Montgomery, we held that, in a swearing match regarding

the defendant’s participation in a burglary, counsel’s failure

to present testimony of a disinterested store clerk was

deficient and prejudicial error under Strickland. Id. at 414-

15. Here too, the testimony of a disinterested eyewitness

was a crucial aspect of Goodman’s defense. Retzlaff, who

chose another individual as the robber, was undoubtedly

important to creating reasonable doubt in the state’s case

against Goodman. Yet, the jury did not have the benefit of

Retzlaff’s testimony because Goodman’s lawyer made no

efforts to secure her presence at trial.

Counsel’s failure to subpoena store cashier Retzlaff was

only the first in a catalog of errors. Several other factors

contributed to the overall ineffectiveness of Goodman’s

counsel. Direct examination of Goodman led to the revela-

tion of two prior convictions for armed robbery on cross-

examination. Counsel also failed to request an instruc-

tion limiting the use of testimony regarding threats made

to witnesses, where jurors may have been left with the

impression that the threats were orchestrated by Goodman,

despite the lack of any evidence to that effect. Nor did

counsel make any record of the fact that Ross hoped

to receive a time reduction for his testimony, and counsel

No. 04-3946 15

did not object when the prosecutor insinuated in closing

argument that Ross had no motivation to testify. Finally,

Goodman’s counsel did not object or request a mistrial when

the prosecutor augmented Sallis’s credibility by falsely

arguing in closing that Sallis could not have been convicted

or charged for his role in the crime absent his own confes-

sion. While each of these errors considered in isolation may

not have been prejudicial to Goodman, viewed in their

totality, they create a clear pattern of ineffective assistance,

the existence of which “l[ies] well outside the boundaries of

permissible differences of opinion.” Hardaway, 302 F.3d at

762.

Given the totality of the evidence before the jury, see

Strickland, 466 U.S. at 698, there is a reasonable probabil-

ity that the outcome would have been different absent

counsel’s deficient conduct. Therefore, assuming the

Wisconsin Court of Appeals applied the correct legal

standard (which we believe it did not), its decision is

nonetheless an unreasonable application of the Supreme

Court’s decision in Strickland v. Washington. Goodman’s

counsel’s performance fell below the constitutional mini-

mum guaranteed in the Sixth Amendment.

III. CONCLUSION

Accordingly, the judgment of the district court to deny

Goodman’s application for a writ of habeas corpus under

§ 2254(d)(1) is reversed and remanded for the entry of an

order granting the writ. The State shall retry Goodman

within 120 days or, failing that, he is entitled to be re-

leased.

16 No. 04-3946

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-31-06