Cortez Jones v. Victor Calloway

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-1174

CORTEZ JONES,

Petitioner-Appellee,

v.

VICTOR CALLOWAY,

Respondent-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 08 C 4429 — James B. Zagel, Judge

____________________

ARGUED JANUARY 19, 2016 — DECIDED NOVEMBER 15, 2016

____________________

Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. After a bench trial in Cook County

Circuit Court, Cortez Jones was convicted of murder for the

1999 shooting death of Friday Gardner. In his federal habeas

petition, see 28 U.S.C. § 2254, Jones alleged that his trial

counsel was constitutionally ineffective in violation of the

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

factual basis for this claim was his attorney’s failure to

2 No. 15-1174

present the testimony of Michael Stone, a codefendant who

was tried separately. Stone confessed to the crime and has

consistently maintained that he—and he alone—shot

Gardner. Stone’s story matched the physical evidence and

some (though not all) of the eyewitness testimony. Indeed, a

jury convicted Stone of murdering Gardner before Jones’s

bench trial began, and Stone was willing to testify for Jones

had he been asked.

But Jones fumbled his Strickland claim in state court by

failing to submit an affidavit from Stone, as Illinois law

requires. The state appellate court found the claim proce-

durally defaulted but also rejected it on the merits based on

the existing record, holding that the failure to call Stone was

a matter of “trial tactics or strategy” and thus immune from

constitutional scrutiny.

Ruling on Jones’s § 2254 petition, the district court ex-

cused the procedural default based on new evidence of

Jones’s actual innocence—namely, Stone’s testimony. After

an evidentiary hearing, the judge concluded that the state

appellate court unreasonably applied Strickland and that trial

counsel’s failure to present Stone’s testimony was constitu-

tionally ineffective representation. The judge accordingly

granted the petition and ordered Jones retried or released.

We affirm. The judge’s decision to excuse the procedural

default was sound, as was his merits ruling. Trial counsel’s

failure to call Stone cannot reasonably be classified as a mere

matter of trial strategy within the range of objectively rea-

sonable professional judgments. Omitting the available

testimony of the man who admits to being the lone shooter

was both constitutionally deficient performance and preju-

dicial.

No. 15-1174 3

I. Background

A. The Murder of Friday Gardner

Around midday on September 12, 1999, three men wear-

ing masks broke into a second-floor apartment at 6102 South

May Street on Chicago’s south side. Michael Stone shared

the apartment with his cousins Latonya Cheeks, Felicia

Anderson, and Michella Anderson. Corey Grant, Felicia’s

fiancé, also lived there. Grant and Michella were home when

the break-in occurred, and one of the masked men beat

Grant with a baseball bat. The intruders then stole some

jewelry, a bag of marijuana, and $200 in cash before fleeing

the apartment.

Stone and Felicia Anderson arrived home soon after the

assault and robbery. Stone called Michael Carter, his half-

brother, and told him what happened. Carter, whose nick-

name is “Junior,” was upset by the news. Driving in his car

not far from the May Street apartment, Carter spotted his

friend Cortez Jones, the petitioner, and told him about the

robbery. Jones hopped into the car with Carter and the two

men drove to the May Street apartment.

Carter introduced Jones to the others and the group dis-

cussed the identity of the assailants. Suspicion fell on Friday

Gardner, a cousin and frequent houseguest of Rena Phillips,

who lived in the apartment across the hall. It’s not clear who

first suggested that Gardner was involved—Carter, Felicia,

Michella, or Jones—but everyone assumed the perpetrators

came from the neighborhood. And they all knew that

Gardner kept a van parked on the street outside the May

Street apartment.

4 No. 15-1174

Carter and Jones then left the apartment, located

Gardner’s van, broke into it, and stole the radio. This was

apparently an effort to lure Gardner onto the street. Jones

denies participating in this theft, but it’s undisputed that he

and Carter then left the neighborhood together and did not

return until around nine or ten o’clock that evening in

response to a page from Stone.

At about ten o’clock, Gardner appeared on the street out-

side the May Street apartment. Carter and Jones approached

him and got into an argument so heated that Stone, who was

still in the second-floor apartment, heard the commotion

from the window. The argument also drew the attention of

many neighbors.

Stone kept a .380-caliber pistol in the basement of the

apartment building. As the situation on the street intensified,

he retrieved the gun and went outside to watch the argu-

ment from the alley. Stone maintains that he saw Gardner

draw and aim a handgun at Carter and Jones, so he ap-

proached from the alley and fired his .380 pistol at Gardner

three times. He says he shot Gardner to protect Carter, his

half-brother. Two shots hit their mark: Gardner died at the

scene with two .380-caliber bullets in his abdomen. Three

.380-caliber shell casings were found near the body. No gun

was found on Gardner’s person, but trial testimony suggest-

ed that someone may have removed one from his hand after

the shooting.

Stone, Carter, and Jones fled the scene. Carter and Jones

were arrested the next day, and Stone turned himself in to

Chicago police the following day. Stone immediately con-

fessed to shooting Gardner using his .380-caliber handgun.

He said he did it in defense of his half-brother. The

No. 15-1174 5

.380 pistol was never recovered; Stone said he threw it in

some bushes as he fled the scene.

B. Trial and State Postconviction Proceedings

All three men were charged with first-degree murder.

The charges against Stone and Carter were tried jointly to a

jury. The prosecution’s theory was that both Stone and

Carter fired shots at Gardner. As an alternative theory

against Carter, the prosecutor argued that if Stone alone shot

Gardner, then Carter was responsible under an accountabil-

ity theory because he planned the crime with Stone and

helped lure Gardner onto the street. Stone testified in his

own defense, telling the jury that he shot Gardner with his

.380 handgun to prevent him from shooting Carter. The jury

found both defendants guilty. They were sentenced to

30 years in prison. See Carter v. Duncan, 819 F.3d 931, 935–37

(7th Cir. 2016).

Jones’s case was tried separately, and he opted for a

bench trial. The prosecution’s sole theory at his trial was that

Jones was the shooter; accountability theory played no part.

The prosecution’s case rested on testimony from several

eyewitnesses, but their accounts diverged in significant

respects.

As we’ve noted, Gardner’s cousin Rena Phillips lived in

the apartment across the hall from Stone and his cousins.

Her son Antonio lived with her, and both Phillipses testified

that they saw Jones shoot Gardner at very close range.

Antonio said he watched the argument from his apartment

window and saw Jones pull out a gun; he said Carter also

had a gun. He testified that Jones was so close to Gardner

that he had to take a step back in order to extend his arm

6 No. 15-1174

and fire the first shot. He estimated that Jones’s gun was

only about an inch away from Gardner when he pulled the

trigger. Antonio testified that after the first shot was fired, he

ran down the stairs and heard two more shots as he ran.

When he reached the street, he saw Carter and Jones run-

ning away from the scene.

Rena Phillips said she and her boyfriend Paul Calmese

had just pulled up outside the building when the confronta-

tion started. Tommy Gaston, a friend of Gardner’s, was also

on the street that night. Rena testified that she saw Jones

shoot Gardner twice at close range. She also said Carter had

a gun and fired shots at Gardner.

Gaston’s version of events was quite different. He said he

didn’t see a gun in Jones’s hand but thought he might have

had one in his coat pocket and may have fired a shot

through his coat. Gaston’s testimony conflicted with the

account he gave on the night of the shooting. Back then he

told the police that he saw Stone emerge from the alley and

shoot Gardner. When questioned about this discrepancy at

trial, Gaston denied that he changed his story.

The only eyewitness with no connection to either the vic-

tim or the three defendants was Cedric Taylor, a Chicago

police officer. Officer Taylor was on duty and standing with

his partner in front of a police station about a block west of

the shooting. The station was across from the alley where

Stone watched the argument unfold and from which he said

he emerged and fired three shots at Gardner. Officer Taylor

testified that as he glanced toward the alley, he saw muzzle

flashes and heard two gunshots, then heard three more shots

much louder than the first two. He ran toward the gunfire

and saw two men ducking down behind a Cadillac and two

No. 15-1174 7

men running away from the scene. One of the fleeing men

carried a dark object that Officer Taylor said could have been

a handgun. Officer Taylor and his partner gave chase but

couldn’t catch up with the fleeing men.

The defense eyewitnesses gave still another—and quite

different—account. Latonya Cheeks, Stone’s cousin and

apartment-mate, said she heard Carter and Jones arguing

with Gardner and saw Gardner draw a gun. She testified

that Stone came running from the alley and shot Gardner;

she said she heard three shots. Her trial testimony conflicted

with her grand-jury testimony in one respect: In the grand

jury, Cheeks said that Gardner was unarmed. Michella

Anderson, another Stone cousin and apartment-mate, told

the court that she saw someone come from the alley and

shoot Gardner and that Jones was not the shooter. She also

testified that she saw Gardner with a gun. Neither Stone nor

Carter testified.

The physical evidence introduced at trial was limited.

Three .380-caliber shell casings were found at the scene near

Gardner’s body. No fingerprints were recovered from the

casings. Gardner died from two gunshot wounds to the

abdomen. Two .380-caliber bullets were recovered from his

body, and forensic analysis established that the bullets were

fired from the same firearm. The forensic and autopsy

evidence was inconsistent with a shooting at close range,

contradicting the testimony of Rena and Antonio Phillips.

In closing argument Jones’s attorney told the court that

the physical evidence and eyewitness accounts were too

widely divergent to support a finding of guilt beyond a

reasonable doubt. Counsel also noted the jury’s verdict in

the Stone/Carter trial and pointed out that the prosecution

8 No. 15-1174

had dramatically changed its theory of the case. The judge

found Jones guilty and imposed a sentence of 30 years in

prison.

The Illinois Appellate Court affirmed on direct appeal.

Jones then pursued state postconviction relief alleging that

the failure to call Stone as a defense witness at trial was

constitutionally ineffective under Strickland. (He raised other

arguments as well; none are relevant here.) The postconvic-

tion court summarily dismissed the petition because Jones

had not included an affidavit from Stone, as Illinois law

requires. See 725 ILL. COMP. STAT. 5/122-2. The Illinois Appel-

late Court held that this procedural violation was inde-

pendently enough to affirm. People v. Jones, No. 1-05-1212, at

6 (Ill. App. Ct. Sept. 26, 2006) (unpublished order) (holding

that the procedural violation “alone justifies the summary

dismissal of defendant’s petition”).

But the court went on to apply Strickland based on the

existing record, holding that “counsel’s failure to call code-

fendant Stone as a witness is a matter of trial tactics or

strategy, which is purely a matter of professional judgment

and cannot support a claim of ineffective representation.” Id.

at 7. The court said that strategic decisions are immune from

constitutional scrutiny unless counsel “entirely fails” to

subject the prosecution’s case to adversarial testing. Id. at 7–

8. The court also held that the failure to call Stone was not

prejudicial for two reasons: (1) It was “highly likely” that

Stone would have invoked his Fifth Amendment right not to

testify; and (2) “several eyewitnesses” testified that Jones

shot the victim, so “the outcome of the trial would not have

been different had counsel attempted to present the testimo-

ny of codefendant Stone.” Id. at 8.

No. 15-1174 9

The decision was not unanimous. The dissenting judge

concluded that Jones had “raised the gist of a meritorious

claim of ineffective assistance” that warranted further

development on remand. Id. at 9 (Wolfson, J., dissenting).

The Illinois Supreme Court denied review.

C. Jones’s § 2254 Petition

Jones then moved his case to federal court. His § 2254 pe-

tition reprised the Strickland claim stemming from his trial

counsel’s failure to call Stone as a witness. The district judge

found the claim procedurally defaulted but held an eviden-

tiary hearing to give Jones an opportunity to satisfy the

miscarriage-of-justice exception to procedural default. This

required a showing of actual innocence. See generally Schlup

v. Delo, 513 U.S. 298 (1995).

The judge heard testimony from several witnesses who

had not testified at Jones’s trial. Felicia Anderson testified

that she saw Gardner draw a gun during the argument and

thought it was Carter who shot him. She said she ran from

the scene screaming, “Junior shot him. Junior shot him.”

(Recall that Carter’s nickname is Junior.) But she admitted

that she only heard the gunshots and did not actually see

Carter fire a gun. Paul Calmese, Rena Phillips’s boyfriend,

testified that he saw Stone approach from the alley but also

saw Jones pull out a gun, though he did not see him fire it.

Carter testified that Stone was the only person to fire a gun

and there was no plan to kill Gardner.

Most crucially, Stone testified that he—and he alone—

shot Gardner. He explained that as the argument on the

street escalated, he retrieved his .380 handgun from the

basement and positioned himself in the alley to watch the

10 No. 15-1174

confrontation. He said that he saw Gardner pull a gun from

his front waistband, so he emerged from the alley and fired

his .380 at Gardner three times to prevent him from shooting

Carter, his half-brother. Stone confirmed that he turned

himself in two days later and confessed in full to the police.

He also testified that he and Jones weren’t friends, he didn’t

plan the killing with Carter or Jones, and he never saw Jones

with a gun that night.

The final important witness was Brian Dosch, Jones’s tri-

al attorney. Dosch testified that he decided not to call Stone

as a witness at Jones’s trial because the police report summa-

rizing his confession wasn’t consistent about whether he

actually saw Gardner draw a gun before he fired the three

shots.

The judge credited Stone’s testimony, reviewed it against

the entire record, and concluded that it satisfied the actual-

innocence gateway to a merits review of the procedurally

defaulted Strickland claim. Moving to the merits, the judge

found Stone’s testimony entirely consistent with his prior

testimony at his own trial. Stone’s testimony was also con-

sistent with the physical evidence and the testimony of some

of the eyewitnesses; in contrast, the testimony of the prose-

cution’s eyewitnesses was inconsistent with the physical and

forensic evidence. The judge could conceive of no justifica-

tion for omitting Stone’s testimony at trial.

Accordingly, proceeding first under the deferential

standard of § 2254(d), the judge held that the Illinois Appel-

late Court unreasonably applied Strickland by treating

counsel’s failure to call Stone as a mere strategic or tactical

trial decision and declaring it immune from constitutional

scrutiny. Next, reviewing the claim independently under

No. 15-1174 11

§ 2254(a), the judge concluded that counsel’s performance

was both constitutionally deficient and prejudicial. The

judge accordingly granted the habeas petition and ordered

Illinois to retry its case against Jones or release him from

custody.

Illinois asks us to reverse that decision.

II. Analysis

We review the district court’s factual findings in a habeas

ruling for clear error; legal conclusions get independent

review. Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014).

A. Procedural Default and Actual Innocence

Section 2254(d) sets a high bar for state prisoners seeking

federal habeas review. A federal court may not grant a state

prisoner’s habeas petition unless the prisoner establishes

that the state court’s adjudication of his claim was “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court.” § 2254(d)(1). At issue here is the Sixth Amendment

right of the criminal accused to the effective assistance of

counsel as interpreted by the Supreme Court in Strickland.

To obtain a merits review of his claim, however, Jones

had to clear an additional high hurdle: procedural default.

As we’ve explained, the state postconviction court dismissed

Jones’s Strickland claim because he failed to include a sup-

porting affidavit from Stone or explain why an affidavit was

unavailable. Illinois law imposes this procedural require-

ment, see 725 ILL. COMP. STAT. 5/122-2, and the Illinois Appel-

late Court affirmed the lower court’s reliance on it. The

appellate court noted that Jones was required to, but did not,

submit an affidavit from Stone indicating that “he would

12 No. 15-1174

have been willing to testify” and “what the substance of that

testimony would have been.” This procedural violation

alone, the court held, justified the summary dismissal of the

Strickland claim.

Illinois courts regularly enforce the affidavit rule. See, e.g.,

Thompkins v. Pfister, 698 F.3d 976, 987 (7th Cir. 2012); see also

People v. Collins, 782 N.E.2d 195, 198 (Ill. 2002). So the Strick-

land claim is procedurally defaulted. See Thomas v. Williams,

822 F.3d 378, 384 (7th Cir. 2016) (explaining the two forms of

procedural default, noncompliance with state procedural

rules and failure to exhaust state remedies). And procedural

default ordinarily precludes federal habeas review. Id.

A state prisoner can overcome a procedural default by

establishing cause for the default and actual prejudice or by

showing that the federal court’s failure to address his claim

on the merits would work a fundamental miscarriage of

justice. See House v. Bell, 547 U.S. 518, 536–37 (2006); Schlup,

513 U.S. at 314–15. This case concerns the miscarriage-of-

justice path to merits review.

The miscarriage-of-justice exception to procedural de-

fault requires the petitioner to make a convincing showing of

actual innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1929

(2013); Schlup, 513 U.S. at 314–15. To pass through the actual-

innocence gateway to a merits review of a procedurally

barred claim, the petitioner must have “new reliable evi-

dence—whether it be exculpatory scientific evidence, trust-

worthy eyewitness accounts, or critical physical evidence—

that was not presented at trial,” Schlup, 513 U.S. at 324, and

must persuade the district court that it is “more likely than

not that no reasonable juror would have convicted him in

light of the new evidence,” id. at 327.

No. 15-1174 13

“New evidence” in this context does not mean “newly

discovered evidence”; it just means evidence that was not

presented at trial. Id. at 322, 324. And because an actual-

innocence claim “involves evidence the trial jury did not

have before it, the inquiry requires the federal court to assess

how reasonable jurors would react to the overall, newly

supplemented record.” House, 547 U.S. at 538. The inquiry

considers “all the evidence, old and new, incriminating and

exculpatory, without regard to whether it would necessarily

be admitted under rules of admissibility that would govern

at trial.” Id. (internal citations and quotation marks omitted).

The court must “make a probabilistic determination about

what reasonable, properly instructed jurors would do.”

Schlup, 513 U.S. at 329.

The actual-innocence standard isn’t deferential to the

verdict, like the legal standard for evaluating challenges to

the sufficiency of the evidence. Id. at 330 (“[T]he mere exist-

ence of sufficient evidence to convict [is not] determina-

tive … .”); see also Hayes v. Battaglia, 403 F.3d 935, 940 (7th

Cir. 2005) (Flaum, J., concurring) (“Unlike a review of the

sufficiency of the evidence which focuses on whether a

rational juror could have convicted, a habeas court consider-

ing actual innocence … determin[es] whether rational jurors

would have convicted.”).

We have one last important doctrinal point: Procedural

actual-innocence claims like this one are evaluated different-

ly than substantive claims of actual innocence. Schlup,

513 U.S. at 316–17. In a substantive actual-innocence claim,

the petitioner’s new evidence must be strong enough to

convince the court that his sentence is constitutionally

intolerable “even if his conviction was the product of a fair

14 No. 15-1174

trial.” Id. at 316. In a procedural—or “gateway”—actual-

innocence claim, the petitioner’s new evidence need only

establish sufficient doubt about his guilt to justify a conclu-

sion that his sentence is a miscarriage of justice “unless his

conviction was the product of a fair trial.” Id. Put slightly

differently, a petitioner satisfies the gateway standard if his

new evidence raises “sufficient doubt about [his] guilt to

undermine confidence in the result of the trial without the

assurance that the trial was untainted by constitutional

error.” Id. at 317.

The district judge credited Stone’s testimony and con-

cluded, based on the entire record, that the gateway actual-

innocence standard was met. We defer to the judge’s credi-

bility determination, see Coleman, 739 F.3d at 350, and agree

that the new evidence of actual innocence warrants a merits

review of Jones’s Strickland claim.

In brief, the decisive evidentiary points are these: Stone

turned himself in two days after the crime and immediately

confessed to shooting Gardner. From the beginning he has

consistently maintained that he alone shot Gardner and that

he did not plan the crime with either Carter or Jones. He

says he used his .380 pistol and fired three times. That

account matches the physical and forensic evidence; the

accounts of the prosecution’s eyewitnesses do not. His

testimony is also corroborated at least in part by some of the

eyewitnesses (e.g., Cheeks, Officer Taylor, and Calmese).

And Stone’s testimony in the district court was entirely

consistent with his testimony at his own trial.

The eyewitness testimony, moreover, was all over the

map. No two witnesses gave the same account of the shoot-

ing. Antonio and Rena Phillips gave roughly similar descrip-

No. 15-1174 15

tions, but their version of events—that Jones shot Gardner at

very close range—is directly contradicted by the physical

evidence, which showed no signs of a close-range shooting.

Gaston, a third prosecution eyewitness, said only that he

thought Jones had a gun in his coat pocket and may have

fired a shot through his coat. But he told the police on the

night of the shooting that he saw Stone emerge from the

alley and shoot Gardner, so his testimony is at best a wash.

The remaining eyewitnesses at least partially corroborate

Stone’s testimony.

In short, we agree with the district judge that the new ev-

idence, considered in light of the entire record, raises suffi-

cient doubt about Jones’s guilt to undermine confidence in

the verdict without the assurance that it was untainted by

constitutional error. Stone’s testimony, together with the

other new evidence presented at the hearing, raises reasona-

ble doubt about Jones’s guilt. Had this evidence been pre-

sented, we think it’s more likely than not that Jones would

have been acquitted.

Illinois resists this conclusion by analogizing this case to

Coleman, but the analogy is superficial at best. In Coleman, as

here, an Illinois prisoner serving a sentence for murder tried

to pass through the actual-innocence gateway to a merits

review of his procedurally defaulted Strickland claim.

739 F.3d at 347–49. That’s where the similarities end. The

new evidence in Coleman consisted largely of the testimony

of the codefendant; the district court rejected the claim

because the codefendant had serious credibility problems. Id.

at 350.We affirmed, noting that the codefendant had demon-

strated an “inability to present a consistent account of his

whereabouts on the day of the murder,” told several ver-

16 No. 15-1174

sions of his involvement in the murder, and attested to facts

that did not match the physical evidence at the scene. Id. The

codefendant was also the petitioner’s friend, which undercut

the credibility of his testimony. Id.

This case is not comparable. Here, the district judge ex-

plicitly credited Stone’s testimony, finding it consistent over

15 years and multiple tellings, and consistent with the

physical and forensic evidence. As we remarked in Coleman,

“[w]e almost never disturb this type of finding by the district

court.” Id. “[D]eterminations of witness credibility can

virtually never be clear error.” United States v. Stewart,

536 F.3d 714, 720 (7th Cir. 2008) (quotation marks omitted).

Illinois also argues that even if the new evidence casts

serious doubt on its theory that Jones was the shooter, his

actual-innocence claim must be rejected because he is guilty

under an accountability theory. This argument is new in

federal court; the prosecutor’s narrative at trial was that

Jones shot Gardner twice at close range. Criminal liability on

an accountability theory requires proof of shared criminal

intent or participation in a common criminal design. See

People v. Redmond, 793 N.E.2d 744, 755 (Ill. App. Ct. 2003). To

convict Jones of Stone’s act would have required evidence

that they shared a criminal intent or participated in a com-

mon criminal design, and that’s lacking here. At most, the

evidence places all three codefendants at the scene and

suggests that they all suspected Gardner was involved in the

robbery and beating at Stone’s apartment and were upset

about it. But the record does not support Illinois’s new

theory that Jones and Stone schemed to kill Gardner.

To the contrary, Stone has consistently maintained that

he acted alone and there was no plan to kill Gardner. The

No. 15-1174 17

judge found his testimony credible, consistent over 15 years

of retelling, and corroborated by the physical and forensic

evidence and the testimony of at least some of the eyewit-

nesses. Carter likewise testified that there was no plan to kill

Gardner. The judge rejected Illinois’s new accountability

theory as unconvincing, and we see no reason to disturb that

ruling.

B. Strickland, § 2254(d), and § 2254(a)

Moving now to the merits of the Strickland claim, our first

question is whether Jones has satisfied the demanding

requirements of § 2254(d). That requires us to decide wheth-

er the Illinois Appellate Court’s decision was “contrary to”

or “an unreasonable application of” clearly established

federal law—here the Sixth Amendment right of the accused

to effective counsel as interpreted in Strickland. The district

judge held that Jones met the requirements of § 2254(d), and

again we agree.

The familiar Strickland formula requires the petitioner to

establish that his attorney’s performance was deficient—that

is, objectively unreasonable—and the deficient performance

was prejudicial. 466 U.S. at 687–88. The first step in this

framework asks “whether, in light of all the circumstances,

the identified acts or omissions were outside the wide range

of professionally competent assistance.” Id. at 690. The

prejudice inquiry asks whether “there is a reasonable proba-

bility that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694.

At Strickland’s first step, the petitioner will often need to

overcome a “strong presumption” that “the challenged

action might be considered sound trial strategy.” Id. at 689

18 No. 15-1174

(internal quotation marks omitted). In Jones’s case the state

appellate court classified the defense attorney’s decision not

to call Stone as a mere choice of trial strategy and held that

decisions of this sort are “generally immune” from scrutiny

unless counsel “entirely fail[ed]” to subject the prosecution’s

case to “meaningful adversarial testing.” That was an unrea-

sonable application of Strickland for several reasons.

First, the Strickland presumption protects actual strategic

trial judgments. “To avoid the inevitable temptation to

evaluate a lawyer’s performance through the distorting lens

of hindsight, Strickland establishes a deferential presumption

that strategic judgments made by defense counsel are rea-

sonable.” Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012).

“But the presumption applies only if the lawyer actually

exercised judgment.” Id. A court adjudicating a Strickland

claim can’t just label a decision “strategic” and thereby

immunize it from constitutional scrutiny. In Jones’s case the

state appellate court had no basis in the record to classify

counsel’s failure to call Stone as a strategic trial choice. Id.

(“[O]n the limited record before the state courts, it was

unreasonable to find summarily that trial counsel chose not

to call Jones and Taylor as a matter of strategy.”). Because

there was no postconviction hearing in state court, Dosch’s

actual reason for omitting Stone was then unknown.

As a general matter, a defense attorney’s failure to pre-

sent a material exculpatory witness of which he was aware

qualifies as deficient performance. See id. at 848–49; Toliver v.

Pollard, 688 F.3d 853, 862 (7th Cir. 2012); Goodman v. Bertrand,

467 F.3d 1022, 1029 (7th Cir. 2006); Washington v. Smith,

219 F.3d 620, 628–29 (7th Cir. 2000). There’s no doubt that

Stone’s testimony was exculpatory and highly material.

No. 15-1174 19

Without an explanation from Dosch about his reason for not

calling Stone, there was no factual foundation for the state

appellate court’s determination that he omitted Stone as a

matter of trial strategy.

Second, a defense attorney’s decisions “are not immune

from examination simply because they are deemed tactical.”

U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 249 (7th Cir.

2003). The state appellate court treated the Strickland pre-

sumption as essentially unrebuttable. That too was clearly

contrary to Strickland.

The state court’s evaluation of the prejudice question was

likewise unreasonable. The court declared that Jones had the

burden to show that “but for counsel’s shortcomings, the

outcome of the proceeding would have been different.”

People v. Jones, No. 1-05-1212, at 6–7. The court then gave two

reasons why Jones hadn’t met this standard: First, it was

“highly likely” that Stone would have invoked his Fifth

Amendment privilege not to testify; second, “several eye-

witnesses” testified that Jones shot Gardner. For these

reasons, the court held, “the outcome of the trial would not

have been different had counsel attempted to present the

testimony of codefendant Stone.” Id. at 8.

This reasoning reflects a patent misunderstanding of

Strickland’s prejudice standard. The state court asked too

much of Jones. He did not need to show that the result of the

trial would have been different but for counsel’s error; he only

needed to show a “reasonable probability that, but for coun-

sel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694 (em-

phasis added). As we’ve noted before, “[t]his is not a mere

detail or a quibble over word-smithing.” Mosley, 689 F.3d at

20 No. 15-1174

850. It’s a substantive point, and one that both the Supreme

Court and we have made before. See Williams v. Taylor,

529 U.S. 362, 405–06 (2000); Mosley, 689 F.3d at 850. In

Mosley, for example, the Illinois Appellate Court took the

same approach to the prejudice question as it did here; we

held there that the error easily satisfied § 2254(d)’s steep

standard of review. 689 F.3d at 850. Indeed, we held in

Mosley that an Illinois appellate decision applying an identi-

cally phrased prejudice formulation was clearly contrary to

Strickland. Id. (citing Williams v. Taylor, 529 U.S. at 405–06).

The same conclusion follows here.

Finally, the state court’s reasons for its no-prejudice find-

ing were so flawed as to fall outside the bounds of reasona-

ble judicial disagreement. First, the court surmised that

Stone probably would have refused to testify. Perhaps, but

the court’s supposition was speculative; at that time there

was no basis in the record to know one way or the other.

And as the dissenting judge noted, if Stone had refused, he

would have been an unavailable witness and his testimony

from his own trial would have been admissible. People v.

Jones, No. 1-05-1212, at 9–10 (Wolfson, J., dissenting) (citing

People v. Johnson, 517 N.E.2d 1070, 1074 (Ill. 1987); MICHAEL

H. GRAHAM, CLEARY & GRAHAM’S HANDBOOK OF ILLINOIS

EVIDENCE § 804.2 (7th ed. 1999)). Second, the court noted that

“several eyewitnesses” testified that Jones shot Gardner,

“which would have diminished the effectiveness of Stone’s

prior testimony had it been admissible.” Id. at 8. Indeed, two

eyewitnesses—Antonio and Rena Phillips—testified that

Jones shot Gardner at close range, but the physical evidence

contradicted their story. A third witness—Gaston—said only

that he thought Jones had a gun in his coat pocket and may

have fired through his coat. But he also told the police on the

No. 15-1174 21

night of the shooting that he saw Stone emerge from the

alley and shoot Gardner. Against these very weak prosecu-

tion witnesses, Stone’s confession would have been power-

ful.

For all these reasons, Jones has satisfied the requirements

of § 2254(d). When a habeas petitioner successfully dis-

charges his burden under § 2254(d), it will often be the case

that his entitlement to relief naturally follows; but not “al-

ways and automatically.” Mosley, 689 F.3d at 853. “Whether

the petitioner is actually entitled to relief—whether under

§ 2254(a) he is in custody in violation of the Constitution and

or laws or treaties of the United States—is a separate ques-

tion.” Id. In this case the two inquiries overlap so significant-

ly that Jones’s entitlement to relief flows easily from our

§ 2254(d) conclusion. Still, we think it best to address the

§ 2254(a) question separately, though we can be brief.

At the evidentiary hearing, Brian Dosch, Jones’s trial

counsel, offered no objectively sound reason for his decision

not to present Stone as a witness at Jones’s trial. He conced-

ed that Jones asked him to call Stone. When he was asked

whether Stone’s testimony “would’ve been very helpful to

Cortez Jones,” he replied, “Yes” and “Oh yes” and “Yes.” He

acknowledged that he was fully aware of the content of

Stone’s testimony because he had watched the Stone/Carter

trial. He could offer only one reason for omitting Stone as a

witness: The police report describing Stone’s confession

contains some contradictory statements about whether he

actually saw Gardner with a gun. According to the report, at

one point during his confession, Stone admitted that he

might not actually have seen a gun in Gardner’s hand. But

the report also clearly states that Stone told the interrogating

22 No. 15-1174

officers that Gardner drew a gun during the argument and

aimed it at Carter.

As the district judge noted, this discrepancy in the police

report may have been important to Stone’s defense, but it

had little significance to Jones. Stone testified that he shot

Gardner to protect Carter, his half-brother, so whether he

saw Gardner with a gun was crucial to his defense. But

Stone’s reason for firing the shots was unimportant to Jones;

the key was his consistent testimony that he—and he

alone—shot Gardner. The why of his actions was largely

irrelevant, but his confession to being the sole shooter mat-

tered a great deal. The ambiguity in the police report about

whether he actually saw Gardner with a gun was not an

objectively reasonable basis to omit his testimony.

On the prejudice question, we don’t need to say much

more than we’ve already said. Because the evidence—new

and old—satisfies the actual-innocence standard, it neces-

sarily also satisfies the Strickland test for prejudice. There is a

reasonable probability that Jones would have been acquitted

had his counsel presented Stone’s testimony.

Illinois argues that the jury in the Stone/Carter trial must

have found Stone unpersuasive, so it follows that he would

not have been a persuasive witness for Jones. But the two

trials were different in important ways. First, as we’ve

already noted, the jury’s rejection of Stone’s “defense of

brother” defense has no bearing on the case against Jones. To

repeat, what’s important in Jones’s case is not Stone’s reason

for shooting Gardner but his consistent admission that he

alone shot Gardner.

No. 15-1174 23

The jury convicted Carter too, of course, but that isn’t

conclusive on the prejudice question in Jones’s case. The case

against Carter was submitted to the jury on a theory of

accountability; that is, the jury could convict Carter even if it

rejected the prosecution’s theory that both he and Stone

were armed and fired shots at Gardner. True, Carter’s

conviction means that the jury at least accepted that Carter

and Stone shared a common plan to kill Gardner and to that

extent must have found Stone unpersuasive. But the case

against Jones wasn’t tried on an accountability theory, which

in any event would have been weaker against Jones than it

was against Carter.

The prosecution maintained in both trials that Gardner

was murdered in retaliation for the robbery and beating at

the May Street apartment. The evidence against the two

men, however, was not identical for purposes of an account-

ability theory of guilt. Unlike Carter, Jones had no connec-

tion to Stone, Grant, or any other residents of the apartment.

Indeed, Jones met Stone and the others for the first time on

the day of these events. Moreover, Stone paged Carter to

summon him back to the scene after 9 p.m., and it is entirely

plausible to infer that Carter would know that his brother

owned a gun and would be armed. No evidence suggests

that Jones would have known this. With no direct evidence

of a plan (and the prosecution had none), Jones would have

been in a stronger position to argue that he was unaware

that Stone would be armed and intended to shoot Gardner.

A final point before we move on: For unknown reasons

the judge in the Stone/Carter trial excluded Stone’s state-

ment to police, which was consistent with his trial testimony

and thus would have bolstered his credibility. Though not

24 No. 15-1174

necessarily decisive, prior consistent statements usually bear

favorably on a witness’s credibility. Indeed, Stone’s con-

sistency was an important factor in the district judge’s

actual-innocence determination. We can safely assume that

Stone’s prior consistent statement would have been an

important factor in Jones’s trial too.

Second, the case against Jones was tried to the court, and

bench trials proceed on a subtly different calculus. At the

evidentiary hearing, Dosch told the district judge that he

watched Stone testify at his trial and thought he was “noth-

ing special” on the witness stand and “wasn’t a great wit-

ness.” But he immediately backpedaled on this point, saying,

“I suppose he was adequate.” It’s not clear what Dosch

meant by this testimony; he did not elaborate. But whatever

Stone’s shortcomings as a witness, it’s reasonable to think

that the judge presiding at Jones’s trial could dispassionately

account for any communication difficulties or rough edges

in evaluating the substance of his testimony. We note again

that the district judge credited Stone’s testimony in the

§ 2254 proceeding. In the end, the cost of calling Stone at the

bench trial was so small—and the benefit of having his

testimony was so great—that Dosch’s decision not to call

him was plainly prejudicial.

Jones has established that he is in custody in violation of

his Sixth Amendment right to the effective assistance of

counsel and is therefore entitled to relief under § 2254(a).

The district judge was right to grant the petition for a writ of

habeas corpus.

AFFIRMED.