The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
After his October 4, 1978 conviction of attempted murder, armed
robbery and aggravated battery in the Circuit Court of Cook
County, petitioner Larry Cosey ("Cosey") was sentenced to 20
years in the state penitentiary. Cosey exhausted his available
state remedies and then brought this petition for a writ of
habeas corpus, alleging improprieties of constitutional scope in
the conduct of his state court trial and appeal. Because Cosey
was denied the effective assistance of trial counsel*fn1 his motion
for summary judgment is granted and the writ of habeas corpus is
On the morning of November 6, 1977 Michael Lightfoot
("Lightfoot") was discovered in the trunk of an automobile by an
early-morning jogger. Lightfoot had been shot six times and badly
beaten as well. R. 165-68. Within hours of arriving at Billings
Hospital, Lightfoot told police investigators that two assailants
unknown to him were responsible for his injuries, that
approximately $600 had been stolen from him during the assault
and that the attack had occurred at 71st Street and Jeffrey
Avenue. R. 150.
Soon thereafter Lightfoot began to tell police a different
story — one that he repeated at trial, perhaps with minor
variations. R. 152-53. At trial he recounted the following
Between 2 and 3 a.m. November 6, Larry Cosey had arrived at
Lightfoot's apartment with a bag of heroin. Cosey's visit was not
unexpected; Lightfoot and Cosey were partners in drug
trafficking. They then proceeded to Cosey's house to divide the
heroin into small packages (required for street sale) and to
count money. Lightfoot was carrying a .38 revolver and about
$3,000 in cash. R. 85-92.
After arriving at Cosey's basement apartment Lightfoot placed
his .38 and the $3,000 next to him on a table and began to
"count" money given to him by Cosey. At that point Ernest Van
Johnson attacked Lightfoot with the victim's own pistol, Cosey
joining in the attack. Lightfoot resisted vigorously even after
six bullets had been fired into his head, neck, intestine and
wrist. After hitting Lightfoot on the head with hammers, Cosey
and Johnson left him in the trunk of the car in which he was
discovered the following morning. R. 92-111.
Lightfoot explained the radical change from his original story
as to the night's events by saying that initially he did not want
to "get Cosey in trouble." R. 152. In his own testimony Cosey
claimed that during Lightfoot's hospital stay he had tried to
blackmail Cosey by threatening to blame Cosey for the assault
unless he could obtain $20,000 and a quantity of heroin for
Lightfoot. R. 200.
Cosey wholly denied Lightfoot's story, testifying that the
facts were these: Early on the evening of November 5 — perhaps at
5 p.m. or so — Cosey had borrowed Lightfoot's car and gone to a
movie. Following the movie Cosey drove around the city to "kill
time" and finally returned to Lightfoot's apartment at about 2
a.m. Lightfoot then drove Cosey home and said that he was on his
way to 71st and Jeffrey to pick up some cocaine. Cosey denied
that he and Lightfoot were involved in the drug trade together.
Cosey waived his right to a jury trial. After a bench trial the
Circuit Court judge found Cosey guilty on all counts, relying
entirely upon the credibility of the respective witnesses (R.
The Court finds the testimony of Mr. Cosey and Mr.
Van Johnson patently incredible and, although there
were some inconsistencies in the testimony of Michael
Lightfoot concerning amounts of money and the fact
that he did not reveal the names of his assailants
until he was mending from his wounds and the Court
has further considered the fact that Lightfoot has
said he uses narcotics and deals in narcotics but the
Court . . . is convinced by the evidence, beyond a
reasonable doubt, of the guilt of the two defendants.
Cosey's newly-retained counsel before the Illinois Appellate
Court challenged his trial counsel's effectiveness. At the heart
of the claim was the argument that Stello, trial attorney for
Cosey and Johnson, had failed to investigate and prepare their
case adequately. In support the new counsel produced the
affidavits of five potential witnesses (located by new counsel
during the 32-day period between Cosey's conviction and
sentencing, R. 64-70) who would have testified to facts
indicating the innocence of Cosey and Johnson:
Cosey's step-father would have testified that he was on the
first floor of the house on South Euclid Avenue where the assault
was said by Lightfoot to have taken place, that he heard no
unusual noises coming from the basement in the early morning of
November 6, that he observed the basement the next morning and
that its condition was as it had been the previous evening. R.
64-65. Cosey's mother would have testified similarly as to the
condition of the basement shortly before and after the alleged
events described so graphically by Lightfoot. Al Merrick, a
contractor hired to refurbish the bathroom in the basement,
stated that he had left the shower in a "state of disrepair" on
the day before the alleged events took place and that it was in
precisely the same state when he returned to it the day after. R.
69. All that testimony, if given, would have challenged important
details of Lightfoot's testimony, as well as forcing the
prosecution to explain why using the basement as a shooting
gallery and putative killing ground had not produced any overt
change in its condition. In addition a second-floor tenant in ...