The opinion of the court was delivered by: MILTON I. SHADUR
1. Leave was granted to Green to file in forma pauperis.
2. Locke Bowman, Esq. ("Bowman") was appointed to act as Green's counsel on a pro bono publico basis.
3. All of the state respondents were ordered to answer the petition.
After respondents had filed an Answer and accompanying Memorandum of Law that (1) challenged several of the grounds advanced by Green in his pro se petition and (2) asked that the writ be denied, Bowman submitted an Amended Petition on Green's behalf, coupled with a motion for evidentiary hearing. After that motion had been fully briefed, this Court's short October 21, 1992 memorandum opinion and order granted the motion, and the required evidentiary hearing has been held. Each party has now tendered post-hearing submissions, and the case is ripe for decision on the merits.
Because Green's claimed constitutional deprivation is grounded on the Sixth Amendment right to counsel,
the familiar two-pronged standard established by Strickland v. Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) has said that he must demonstrate both (1) that his representation at sentencing fell below an objective standard of reasonableness and (2) that a reasonable probability exists that but for his attorney's unprofessional representation the result of the proceeding would have been different. Most recently the Supreme Court has framed the second ("prejudice") branch of that inquiry in a somewhat narrower fashion ( Lockhart v. Fretwell, 122 L. Ed. 2d 180, 113 S. Ct. 838, 844 (1993)):
It focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.
En route to that restatement the Court said (113 S. Ct. at 842-43 (footnote omitted)):
Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.
And see our Court of Appeals' current decision in Durrive v. United States, 4 F.3d 548, 1993 U.S. App. LEXIS 23565, slip op. at 4-5 (7th Cir. 1993), which characterizes Lockhart as "rejecting the equation between causation [in the but-for sense] and prejudice."
In this instance Green's claim focuses on the assertion that his trial counsel Harry Irby ("Irby") did not investigate the circumstances of a key eyewitness' identification of Green as the driver of the getaway car in an armed robbery. As a result of that failure, Irby neither moved to suppress that photospread identification nor--assuming that a motion to suppress would have been made and denied--presented the circumstances of that identification to the jury so as to raise questions as to the witness' credibility.
If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense ...