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June 6, 1989


The opinion of the court was delivered by: ASPEN


 Petitioner Billy McCall, an inmate at the Vandalia Correctional Center, seeks habeas relief pursuant to 28 U.S.C. § 2254 from his conviction for residential burglary and possession of a stolen motor vehicle and sentence of five years imprisonment. *fn1" For the reasons stated herein, the petition is granted.

 Factual Background *fn2"

 On January 9, 1986, Chicago police officer Eugene Shephard's residence at 857 West 129th Place in Chicago was burglarized. In addition to stealing various items from the Shephard home, the burglars drove off with a 1983 Chevrolet van, license plate #58002 RV, which had been parked in the garage. At the time of the burglary, Keenan Lett, a next-door neighbor, was talking to some friends in another neighbor's driveway four houses down the street. Lett saw the van leave the Shephard residence and travel down the street. The van passed Lett and his friends, coming at one point within twenty feet. One of Lett's friends waived to the driver of the van, and the driver waved back. Lett also noticed a brown Mercury Monarch parked near the Shephard residence.

 The day after the burglary, two police officers came to Lett's home for an interview. Lett did not recall at trial the names of those officers and denied on cross-examination that he ever told them that he did not see and probably would not be able to identify those individuals who were driving the van and the Monarch. However, in a police report dated January 10, Officers Robert Tetti and G. Valleyfield stated that Lett said in the interview that he had "seen offenders [sic] car and victim [sic] van leave area but did not get a good look at offenders." In a later police report filed on January 30, Detective B. Campbell stated that Lett told Shephard that he "observed two unknown M/Blks get into a 1974 or 76 Mercury Monarch gray in color and drive away from victims home [sic] along with the victims 1983 Chevrolet van [sic], brown & beige in color, Lic #58002RV, Il 1985. Witness stated that he did not get a good look at offenders and probably couldn't identify them."

 Detective William Stark, assigned to investigate property crimes in another area of the city, was notified to keep an eye out for a 1983 or 1984 brown and beige van with possible license plate numbers XRU 130 or VRU 130. *fn3" On February 4, he noticed a brown van with license plates RXU 130 traveling on 83rd street. He followed the van, drove by its right side and caught a glimpse of the driver. Instead of pulling the van over, he returned to the station and learned through a computer check that the plates belonged to Billy McCall. On February 11, Stark again encountered the van and followed it. This time he decided to pull it over and gave chase. The van eventually turned into a dead-end street, and two occupants jumped out and fled. The van was in fact Shephard's, and Stark later identified Joe McCall, Billy's brother, as the driver in both instances. An investigation revealed only Joe McCall's fingerprints in the van and that the steering column had been peeled -- i.e., someone had torn off the plastic cover on the column in order to access the steering mechanism. As of the trial, the only other stolen item recovered was a.357 Smith & Wesson revolver. No evidence linked the revolver to either McCall brother.

 On February 12, Stark went to the residence of Billy and Joe McCall's mother. Neither Billy nor Joe were home. Stark left a business card and asked that Billy get in touch with him. Stark then proceeded to Lett's home. Lett identified Billy from a set of six photographs as the driver of the van on the day of the burglary. Two days later, Stark arrested Billy and Joe. In a lineup, Lett again identified Billy. The record does not indicate whether Joe was in either the photographic array or the lineup.

 The state filed charges against Joe and Billy. Diane Shelley represented both defendants throughout the pre-trial investigation and proceedings. On the day of trial, the state dropped charges against Joe and proceeded only against Billy. The state's witnesses included Shephard, Lett and Stark. Shelley unsuccessfully tried to get Lett to admit that he had told police officers the day after the crime that he did not get a good look at the offenders and could not identify them. The court struck all of that line of questioning and testimony because Shelley based it on Detective Campbell's January 30 police report which constituted double hearsay -- Lett told the victim who told the Detective. She did not pursue the questioning on the basis of Officer Tetti's January 10 report which did not suffer from that evidentiary shortcoming. Consequently, all that Shelley was able to establish in her cross-examination of Lett was that the person driving the van was wearing a tan wool hat and that he waved at Lett and his friends as he drove by.

 Billy presented an alibi defense. James Coleman, his alleged employer for approximately three years, testified that Billy worked for him most of the month of January and probably was working on January 9, the day of the burglary. He further testified that when he was picking Billy up on the morning of January 11, he noticed that the rear license plate on Billy's car was missing and warned Billy to put on his plate since the city had posted street cleaning signs. Billy took the stand and testified that he was working on January 9 but could not recall specifically which other days during that month he had worked. He also stated that his car had been nonoperational since December 1985, and he reported the missing plate on January 11. The police report did not identify any plate number, but Billy insisted he gave the police officers that number. On rebuttal, the state called Levon Johnson, a foreman in the Department of Sanitation, who testified that while streets are sometimes cleaned in January, no signs were posted on January 11.

 In closing, the state relied primarily on the apparently unbiased testimony of Lett and that Billy's plate was found on the van. The state also challenged Billy and Coleman's veracity, noting their selective memory. Shelley in her closing restated Coleman's testimony and pointed out that Billy reported his missing plate. She then attempted to pin responsibility for the crime on Joe, emphasizing that Joe, not Billy, was found driving the van on two separate occasions and that only Joe's fingerprints were found in the van. *fn4" She was unable to challenge Lett's ID testimony in any way, except to point out how unusual it was for a burglar to wave to witnesses. The state, relying only on the fact that the police report did not identify a plate number and despite Billy's testimony to the contrary, explained on rebuttal that Billy did not tell the police his plate number because they would have pulled the van over. *fn5"

 The jury convicted Billy of residential burglary and possession of a stolen motor vehicle. In a post-trial motion, Billy argued the ineffective assistance of counsel on two grounds pertinent here: Shelley was incompetent in failing to properly impeach Lett with the Tetti report and, if necessary, Tetti's testimony; and Shelley operated under a conflict when she represented Billy and Joe prior to the trial. The trial court denied the motion, and Billy appealed. On August 9, 1988, the appellate court upheld the conviction. People v. Billy McCall, No. 1-87-0789 (1st Dist. Aug. 9, 1988). Without determining whether Shelley's failure to effectively impeach Lett was incompetent, *fn6" the court found that Billy was not prejudiced by the purported mistake since

the totality of the evidence demonstrated strong circumstantial evidence of guilt. For example, defendant's license plates were affixed to the victim's van. Defendant remembered nothing specific about the dates he worked or did not work in January 1986 except for the fact that he worked on the day of the crime and that it was a Thursday. Coleman did not state that defendant worked on the day of the crime. Johnson impeached Coleman's testimony that he advised defendant to report the missing license plates because of the prospect that the car would be towed by street cleaners. In our view, the jury would be entitled to infer that the testimony of defendant and Coleman was subject to doubt. Furthermore, because the police report lacked any license plate number it would have been reasonable for the jury to infer that, when defendant made the report, he deliberately withheld his license plate number because he had placed the plate on the stolen van.

 Id., slip op. at 5. The court also found that since there was no conflict at the time of trial, i.e., immediately after the state dropped charges against Joe, there was no actual conflict. Further, neither Shelley nor Billy ever raised at trial the possibility of a conflict. Finally, the court held that the trial court did not need to conduct a post-trial evidentiary hearing because the record resolved all claims. The Illinois Supreme Court denied leave to appeal. Having exhausted all available state ...

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