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March 7, 1983


The opinion of the court was delivered by: Getzendanner, District Judge:


This case comes before the court for ruling after an evidentiary hearing on petitioner Larry Cosey's petition for writ of habeas corpus. The historical facts giving rise to this hearing have been recounted in several published opinions (discussed infra), and will not be repeated in detail.

Petitioner was tried along with a co-defendant, Ernest Van Johnson, in the Illinois Circuit Court for attempted murder, aggravated battery, and armed robbery. The victim, Michael Lightfoot, testified that he was attacked by the defendants in the basement of petitioner's home during the early morning hours of November 6, 1977. Lightfoot's testimony constituted the crux of the prosecution.*fn1 The Court, hearing the case without a jury, convicted petitioner on all counts and sentenced him to 20 years imprisonment.

Petitioner's sole contention in this proceeding is that the lawyer who represented him at trial, Joseph (J.T.) Stillo, was incompetent for failing to investigate and call five witnesses who could have impeached Lightfoot's version of the facts. These witnesses would have testified as follows:

United States ex rel. Cosey v. Wolff, 526 F. Supp. 788, 790 (N.D.Ill. 1981).

On direct appeal, the Illinois Appellate Court rejected Cosey's argument, reasoning that "we are unable to conclude that counsel's representation amounted to no representation at all or reduced the court proceedings to a farce." People v. Cosey, 82 Ill.App.3d 968, 973, 38 Ill.Dec. 425, 430, 403 N.E.2d 656, 661 (1st Dist. 1980). The Illinois Supreme Court denied leave to appeal, and the United States Supreme Court refused Cosey's petition for a writ of certiorari. Cosey v. Illinois, 449 U.S. 1115, 101 S.Ct. 928, 66 L.Ed.2d 845 (1981).

Petitioner then instituted proceedings in this Court for a writ of habeas corpus. Judge Milton I. Shadur initially heard the case and granted Cosey's motion for summary judgment. Judge Shadur held that the Illinois Appellate Court's use of the "farce or sham" standard was "error of constitutional dimension. 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)." United States ex rel. Cosey v. Wolff, supra, 526 F. Supp. at 790. Judge Shadur further found that Cosey had in fact been denied representation of a minimally professional nature:

  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. 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. 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.

Id. at 791 (citations and footnotes omitted).

The Seventh Circuit Court of Appeals, noting that "[s]tate habeas cases rarely are proper cases for summary disposition in granting the writ," reversed. United States ex rel. Cosey v. Wolff, 682 F.2d 691, 693 (7th Cir. 1982) (per curiam). To the Court, the question of competency — "a mixed question of fact and law" — was "not so clear." Id.

  The district court could not say as a matter of law
  that the failure to call the witnesses showed
  incompetence. For instance, as the Illinois Appellate
  Court pointed out, three of the potential witnesses
  (Cosey's mother, his stepfather, and the co
  defendant's girlfriend) were biased because of their
  relationship to the defendants. Also, counsel may
  have believed that the witnesses' testimony would be
  false. Other legitimate explanations for the failure
  to call the witnesses might have become evident at a
  hearing. Therefore, there is a material question of
  fact as to whether the failure to

  call the witnesses was a matter of trial strategy,
  and respondents are entitled to a hearing on this

Id. at 693-94 (citations omitted). The Court of Appeals also found that it was not clear whether Stillo was even aware of the existence of the five witnesses prior to trial. If he was not, "and if the lack of knowledge was not due to counsel's failure to adhere to the constitutional standard of competence, counsel was not constitutionally ineffective in not calling the witnesses." Id. at 694. Finally, the Court indicated that a hearing was necessary due to concerns of basic fairness: "The targeted counsel, if at all available, should be called and given the opportunity to meet and refute the serious charges made against him. Fairness demands both sides be heard." Id. at 693.

Pursuant to Circuit Rule 18, the case was reassigned to this court for purposes of conducting the evidentiary hearing on remand. In accordance with the Court of Appeals' mandate, the hearing was designed both to give Stillo an opportunity to meet the serious charges ...

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