United States District Court, Central District of Illinois, Springfield Division
July 17, 1987
CARL WILLIAM MONTGOMERY, PETITIONER,
DALE PETERSEN, RESPONDENT.
The opinion of the court was delivered by: Mills, District Judge:
Ineffective assistance of counsel?
We find that there was.
The writ must be granted.
Carl Montgomery is currently incarcerated in the Lincoln
Correctional Center at Lincoln, Illinois, and petitions this
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He challenges the constitutionality of his state court conviction
for residential burglary maintaining that he was denied the
effective assistance of counsel in violation of the Sixth
Pursuant to the rules governing § 2254 cases, Montgomery has
served copies of the petition upon Respondent and the Attorney
General of the State of Illinois. The state has timely
Because Petitioner does not dispute the summary of facts
contained in the appellate court opinions, but only disputes
the inferences to be drawn therefrom, this
Court may rely upon those summaries and need not review the
transcript of the underlying state court trial. See, e.g.,
Davis v. Franzen, 671 F.2d 1056 (7th Cir. 1982). Likewise,
because the state procedure provided Petitioner with a full and
fair hearing in this matter, we need not hold a new evidentiary
hearing. See, e.g., Cartee v. Nix, 803 F.2d 296, 298 (7th Cir.
Because our review of the facts and law indicate that
Montgomery was denied effective assistance of counsel in
violation of the Sixth Amendment, we must grant the writ.
The facts are set out well in the opinion of the state
appellate court. People v. Montgomery, 141 Ill. App.3d 428,
490 N.E.2d 206, 95 Ill.Dec. 733 (1986). Here, a brief summary
Carl Montgomery was convicted of residential burglary in
Moultrie County. The state's chief evidence against him was the
testimony of his half-brother, Wayne Montgomery. Wayne Montgomery
had pled guilty to the same burglary in Moultrie County and had
also pled guilty to a burglary in Macon County occurring the same
day. He testified that he and Carl planned a series of burglaries
on the morning of September 9, 1983. On that same day they
accomplished their goal, committing two burglaries, one in
Moultrie County and one in Macon County. After testifying on the
direct examination that he and Carl had planned and accomplished
the burglaries, he was impeached on cross-examination through the
use of prior convictions. The Government also called Wayne
Montgomery's wife who testified that she overheard the discussion
between Wayne and Carl on that morning. Two other family members
testified they saw Wayne and Carl arrive together at Carl's house
in Springfield later that evening.
The defense case centered on an alibi defense which placed Carl
in Springfield during the day the burglary took place. In the
Moultrie County trial, twelve alibi witnesses were called and
testified to being with or observing Carl in Springfield on
September 9. All the witnesses called on Carl's behalf were
either relatives or close friends. The jury came back with a
verdict of guilty.
Subsequently, Carl was tried in Macon County for the burglary
occurring that same afternoon. At this trial an employee from
the Springfield Sears store, Barry Holktramp, testified that
Carl and his wife purchased a bike from him at approximately
1:30 p.m. on September 9. Holktramp specifically remembered
Carl Montgomery because it was the only bike sale he made that
day. In this trial, Montgomery was acquitted.
This was the basis for Petitioner's motion for
post-conviction relief in the Moultrie County trial. He argued
that he was denied effective assistance when his counsel failed
to investigate a lead supplied to counsel by Defendant and his
wife. Specifically, Montgomery and his wife had given counsel a
receipt from the Sears store which contained the date of the
sale and Holktramp's employee code number. The receipt revealed
that Carl Montgomery had purchased a bike at that Sears store
on September 9. In the Macon County trial, Montgomery's wife
followed up the lead on her own and eventually procured
At the post-conviction hearing, Montgomery's counsel stated
that the failure to investigate the potential witness was due
to "inadvertence" and that:
I was just given a receipt. I wasn't given a name so
I didn't know who to interview until I found out who
the witness was. But at that point, I simply didn't
believe the defendant so I didn't think it happened.
Montgomery, 141 Ill.App.3d at 434, 490 N.E.2d 206
, 95 Ill.Dec.
The trial court denied the request for relief, the appellate
court affirmed and the Illinois Supreme Court denied leave to
We must now decide the issue anew. Since our review is of a
legal conclusion or mixed question of law and fact, we are not
required to presume the correctness
of the state court decision. Barnard v. Lane, 819 F.2d 798, 802
(7th Cir. 1987).
We respectfully disagree with the conclusion drawn by our state
court brethren and therefore must grant the writ.
II Law and Analysis
The bellwether case in the analysis of ineffective assistance
claims is Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
Strickland established a two-part test to determine
whether a defendant was denied a fair trial due to the
ineffectiveness of his counsel. The constitutional right to a
fair trial is the underpinning of the right to effective
assistance of counsel and the two-part test was developed with
this in mind. One portion of the test focuses on the
performance of counsel and the second part examines the degree
of prejudice to the defendant. Both prongs of the test must be
established by the Petitioner if he is to prevail. Sullivan v.
Fairman, 819 F.2d 1382, 1390 (7th Cir. 1987). Often, a court
will be able to move directly past the performance aspect of
the Strickland test because the lack of prejudice is readily
apparent. See, e.g., U.S. ex rel. Cross v. DeRobertis,
811 F.2d 1008 (7th Cir. 1987). However, the facts of this case mandate
that we discuss both aspects of the Strickland test.
Strickland, holds that the Sixth Amendment right to a
fair trial entitles a defendant to reasonably effective
assistance of counsel. Only when counsel's performance falls
below an objective standard of reasonableness will the
performance be unconstitutionally ineffective. Strickland, 466
U.S. at 687-88, 104 S.Ct. at 2064-65.
There is no acid test for determining what is and what is not
reasonably effective assistance. The inquiry is dependent on
the totality of the circumstances of the case. Nevertheless, it
is always true that the judicial scalpel should be applied
lightly and that a heavy measure of deference should be given
to counsel's performance. Id. at 689, 104 S.Ct. at 2065.
Strickland also distinguishes between the investigative
function of counsel and counsel's role as a decisionmaker
regarding case strategy and trial tactics. In the latter role,
counsel's conduct is virtually unassailable. Id. at 690, 104
S.Ct. at 2066. However, counsel has a duty to investigate the
case and any failure to do so will be independently scrutinized
for its reasonableness under the circumstances. Id. at 691, 104
S.Ct. at 2066. Adequate investigation is a prerequisite to
effective representation. Crisp v. Duckworth, 743 F.2d 580, 583
(7th Cir. 1984).
Here, we deal solely with counsel's failure to investigate the
lead provided by the information given to him by Defendant
concerning the potential disinterested alibi witness. Counsel's
failure was not related in any way to trial tactics or
strategy. In fact, counsel admitted that the reason for not
following the lead was "inadvertence" and his disbelief of the
Defendant. Montgomery, 141 Ill.App.3d at 434, 490 N.E.2d 206, 95
Examined in this light, we do not believe that "reasonable
professional judgments support[ed] the limitations on
investigation . . ." in this case. Strickland, 466 U.S. at 691,
104 S.Ct. at 2066.
In a recent Seventh Circuit case applying Strickland, that
Court held that counsel did not give reasonably effective
assistance when counsel did not locate five witnesses who had
given exculpatory statements to police concerning defendant's
allegedly unlawful conduct. Sullivan v. Fairman, 819 F.2d 1382,
1391 (7th Cir. 1987).
Likewise, the Fifth Circuit has found that failure to interview
potential alibi witnesses was unreasonable when counsel could
neither point to a strategic reason for doing so or that the
additional investigation would most likely prove futile. Nealy v.
Cabana, 764 F.2d 1173, 1178 (5th Cir. 1985).
Counsel's conduct in this case is strikingly similar. In
light of the information available to counsel at the time, the
failure to investigate the only available disinterested alibi
witness fell below the standard of reasonably effective
by Strickland. Therefore, this part of the Strickland test is
Despite our finding that counsel's performance was
ineffective, in order to succeed Petitioner must also show that
the ineffective performance would give rise to "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. We must base
our decision against this standard and with an eye toward the
totality of the evidence which was presented at trial. Id. at
695, 104 S.Ct. at 2068. We are advised to avoid the temptation
to "hypothesize about what might have been" although a certain
degree of hypothesizing seems inevitable. Sullivan, 819 F.2d at
1392. The Petitioner has the burden of showing what the failed
investigation would have yielded.
Here, Petitioner has met that burden. The investigation would
have provided the only disinterested alibi witness to testify on
behalf of Petitioner. Indeed, all other witnesses in the trial
had some familial or otherwise close relationship to the
Petitioner. The significance of this testimony cannot be
minimized. Not only would the unbiased alibi witness' testimony
greatly enhance the defense case if it stood alone, it also
lends even greater support to defendant's case when we consider
the fact that it corroborates the otherwise impeachable
testimony of 12 additional alibi witnesses. It is unrealistic
to look at this testimony as simply cumulative.
Further, and in what is indeed a rare occurrence, we have
evidence of a trial based on almost identical facts as a basis
for comparison. In the second trial, the disinterested alibi
witness was called and Petitioner was acquitted. This is strong
evidence that the result would have been different but for
counsel's errors. We agree with the Illinois Appellate Court
that all trials are sui generis and that the results of the
Macon County trial do not necessarily compel the conclusion
that Petitioner would have been acquitted if Holktramp was
called in the Moultrie County trial. It is certainly true that
other factors do play a part in the results of trials.
However, Petitioner's burden is not that overwhelming.
Strickland specifically disavowed use of an outcome
determinative test in making out a finding of prejudice.
Strickland, 466 U.S. at 693, 694, 104 S.Ct. at 2068. Petitioner
must only show a reasonable probability of a different outcome.
For us, the results in the Macon County trial go a long way in
showing that probability. Furthermore, this is not a case where
the other evidence brought by the state would overwhelmingly
favor a finding of guilt. Hence, when the evidence is looked at
in its totality, we believe the error of counsel "undermine[d]
confidence in the outcome" and thus deprived defendant of his
fundamental right to a fair trial in violation of the Sixth
Ergo, Montgomery's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is granted.
Execution of the writ, however, is stayed on the condition that
the State of Illinois grant Petitioner a new trial on the charges
resulting in his conviction within a reasonable time not to
exceed ninety days, and diligently and without delay prosecute
the charges to a final conclusion.
Montgomery is not entitled to an unconditional release; any
request to be released on bail pending the outcome of the new
trial should be addressed to the discretion of the state courts.
IT IS SO ORDERED.
© 1992-2003 VersusLaw Inc.