United States District Court, Northern District of Illinois, E.D
September 28, 1981
UNITED STATES OF AMERICA EX REL. LARRY COSEY, PETITIONER,
DENNIS WOLFF, WARDEN, AND TYRONE FAHNER, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, RESPONDENTS.
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.
State Court Decisions
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 the
building would have testified that she was at home throughout the
night of November 5-6 and heard no noises from the basement,
specifically gunshots. R. 70. Finally, Johnson's girlfriend would
have testified that she was with him, at her house, throughout
the night in question. R. 68.
Cosey's Sixth Amendment argument was rejected by the Appellate
Court in People v. Cosey, 82 Ill.App.3d 968, 972-73, 38 Ill.Dec.
425, 403 N.E.2d 656, 660-61 (1st Dist. 1980). It measured trial
counsel's competency against a standard enunciated by the
Illinois Supreme Court:
A strict test is applied in determining whether
privately retained counsel is incompetent:
"In such a case the court will not reverse a
conviction because of the incompetency of counsel
unless the representation is of such a low caliber
as to amount to no representation at all or reduces
the court proceedings to a farce or sham."
It concluded that "we are unable to conclude that counsel's
representation amounted to no representation at all or reduced
the court proceedings to a farce."
Adequacy of Trial Counsel's Representation
In applying the "farce or sham" test the Illinois Appellate
Court committed error of constitutional dimensions. That
criterion was specifically rejected by our Court of Appeals in
favor of a "minimum standard of professional representation" some
six years ago in United States ex rel. Williams v. Twomey,
510 F.2d 634, 640-41 (7th Cir. 1975), cert. denied sub nom. Sielaff
v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975).
Accord, United States
v. Starnes, 644 F.2d 673, 681 (7th Cir. 1981); Clay v. Director,
Juvenile Division, 631 F.2d 516, 522 (7th Cir. 1980); Matthews v.
United States, 518 F.2d 1245, 1246 (7th Cir. 1976).*fn3
However that constitutional error only begins rather than ends
the inquiry.*fn4 It is necessary to examine whether Cosey was denied
effective assistance under the Williams test and, if so, whether
sufficient harm could have flowed from that denial to justify
granting a habeas writ. Cf. United States v. Morrison,
449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981) (requiring
"demonstrable prejudice, or substantial threat thereof").
Step one of the inquiry leads to a ready answer. Cosey's trial
lawyer did not produce a single witness in support of Cosey's
testimony, though at least five were available.*fn5 Instead counsel
merely cross-examined the state's witnesses as best he could,
made many evidentiary objections to testimony (quite often
sustained) and made a closing statement to the trial judge. True
enough, in none of those activities did counsel fall below a
minimum standard of professional representation. Indeed, many of
his evidentiary objections indicate a trial counsel of some skill
in criminal matters.
But counsel's fatal flaw was his absolute failure to present
any affirmative evidence at all on behalf of his clients,
evidence that clearly existed in this case. Cf. Matthews,
518 F.2d 1245; United States ex rel. Cyburt v. Rowe, 638 F.2d 1100,
1105 (7th Cir. 1981). Many cases in this Circuit and others have
disallowed claims of ineffective assistance of counsel because,
in essence, losing criminal defendants have merely second guessed
the strategy or tactics of their defense counsel. See, e.g.,
United States v. Fleming, 594 F.2d 598, 607 (7th Cir. 1979)
(Chief Judge Fairchild stating, ". . . we adhere to the view that
tactical or strategic errors during trial do not raise a
presumption of failure to meet the constitutional guarantee of
adequate counsel").*fn6 But in this case counsel's presentation of
no evidence can hardly be defended as "strategy" or a "judgment
call," incorrect only in hindsight. It can scarcely have been a
conscious decision made after examining both sides of a close
question with the skill of the experienced practitioner.*fn7
Nothing can justify gross neglect of the lawyer's professional
obligation to defend his client zealously. In essence, Cosey was
sent to prison for 20 years after a trial in which his defense
was never made. As Judge Wyzanski wrote of a similar situation in
Williams, 510 F.2d at 640:
The Constitution, unlike the judicial oath, does not
go so far as to promise equal justice to the poor and
to the rich. Yet it does not leave the poor to a
representation which is in any aspect . . .
shockingly inferior to what may be expected of the
prosecution's representation. While a criminal trial
is not a game in which the participants are expected
to enter the ring with a near match in skills,
neither is it a sacrifice of unarmed prisoners to
As for step two of the necessary inquiry, it is clear enough
that Cosey was prejudiced by his counsel's failure to present
affirmative evidence. Lightfoot was the state's major witness.
His testimony was at best somewhat inconsistent on a number of
key portions of his story. Production of five witnesses on behalf
of Cosey could well have affected the trier's perception of
Lightfoot's credibility. It might well have altered his view of
Cosey's credibility (the trial judge doubtless assumed from
Cosey's lack of a case that there were no other witnesses able to
corroborate his story at trial).
Indeed, testimony from the five witnesses could well, by
strengthening the defense's overall case, have affected the trial
judge's ultimate determination in ways difficult to predict. One
example may suffice. Much of the non-proffered testimony stated
that the basement's condition was the same before and after the
events described by Lightfoot. That may have led the trial judge
to examine more skeptically the fact that the state produced no
physical evidence — bloodstains, fingerprints, or anything else
— from the basement tending to corroborate Lightfoot's story that
a death struggle had taken place there. Such skepticism might
well have been the "reasonable doubt" mandating an acquittal for
Speculation as to where the ultimate truth lies is not the
function of this Court. Cosey is constitutionally entitled to
have a trial in which his case is presented by his counsel in
some minimal fashion to the trier of fact.
There is no genuine issue as to any material fact before this
Court, and Cosey is entitled to a judgment as a matter of law.
This Court issues the writ of habeas corpus and directs
respondents to discharge Cosey unless the State of Illinois gives
him a new trial within a reasonable time.
ON MOTION FOR RECONSIDERATION
After this Court issued its September 28, 1981 memorandum
opinion and order (the "Opinion") granting the motion of
Petitioner Larry Cosey ("Cosey") for summary judgment and for
issuance of the writ of habeas corpus, respondent state officials
moved for reconsideration. That motion, having been fully briefed
by the parties, is denied.
At the outset the Court is constrained to comment on a
distressing phenomenon that it has recently found evidenced in
this and other like cases. It almost seems as though state
defendants do not take the prospect of losing habeas petitions
with real seriousness until that in fact occurs, only then
devoting full attention to issues and arguments that should have
been posed in the first instance. Whatever pragmatic
justification they may perceive for that process where pro se
petitions are involved (perhaps the notion of husbanding
resources), it is plainly inapplicable where as here the state
defendants face competent counsel. And of course it is really an
imposition on the Court for counsel not to give the matter their
best attention initially, forcing two opinions where only one
should be required.
In any case what respondents have done here is to cloak under
the caption of a motion to reconsider a material shift in the
position they took both in the state courts and on the initial
briefing here. They now say at page 2 of their motion:
There is no evidence in the record to warrant a
finding that petitioner's trial counsel received
information which would have led trial counsel to
reasonably conclude that further investigation was
Before the state courts their argument was a very different one
(Brief 39 before the Illinois Appellate Court):
The People maintained that defense counsel's
representation was adequate where his decision not to
call the five named people as witnesses amounted to
an exercise of trial strategy and judgment.
There was no hint there of the lack of information to Cosey's
trial counsel — quite the contrary. It was on that presentation
that the Appellate Court based its decision as to adequacy of
representation, employing as it did a constitutionally flawed
standard, 82 Ill.App.3d 968, 972-73, 38 Ill.Dec. 425,
403 N.E.2d 656
, 660-61 (1st Dist. 1980). Before this Court respondents
persisted in their position advanced before the Illinois courts,
never arguing the position now asserted as to any evidentiary
Cosey's counsel properly advances some of the extensive
authority rejecting such efforts to relitigate issues on a basis
other than that consistently maintained by the party in the prior
proceedings under consideration. See e.g., Ulster County Court v.
Allen, 442 U.S. 140, 152-54, 99 S.Ct. 2213, 2222-23, 60 L.Ed.2d
777 (1979); Steagald v. United States, 451 U.S. 204, 208-211, 101
S.Ct. 1642, 1645-47, 68 L.Ed.2d 38 (1981).
Under the circumstances involved here it is frankly an affront
to characterize the Court as having "overlooked" the "important
principle" of summary judgment law requiring the absence of
disputes of material fact. Counsel cannot now create material
issues of fact when the issue is whether Cosey was
constitutionally disadvantaged by the state courts' application
of an unconstitutional standard to the facts before them as
presented by respondents' counsel.
As for respondents' attempted invocation of Sumner v. Mata,
449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), what the court
has said at Opinion 791 n. 4 is dispositive. This Court did not
"reject" Sumner but properly found it inapplicable to the
determination before this Court, which is not a determination of
fact. Harris v. Oliver, 645 F.2d 327, 330 n. 3 (5th Cir. 1981) is
directly on point; see also Sumner on remand, 649 F.2d 713, 716
(9th Cir. 1981).
For the foregoing reasons respondents' motion for
reconsideration is denied. They are again directed to discharge
Cosey unless the State of Illinois gives him a new trial within
a reasonable time.