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UNITED STATES EX REL. SUMNER v. WASHINGTON

December 22, 1993

UNITED STATES ex rel. WALTER SUMNER, Petitioner,
v.
ODIE WASHINGTON, Respondent.



The opinion of the court was delivered by: MILTON I. SHADUR

 Walter Sumner ("Sumner") has filed a petition for writ of habeas corpus (the "Petition") under 28 U.S.C. ยง 2254 ("Section 2254") against Dixon Correctional Center Warden Odie Washington. Sumner challenges his 1988 murder conviction, *fn1" on which he is now serving a 20 year prison sentence. On appeal, Sumner's conviction and sentence were affirmed by the Illinois Appellate Court, after which the Illinois Supreme Court denied his petition for leave to appeal. Next Sumner filed a post-conviction complaint in the Circuit Court of Cook County, but that proceeding was dismissed. *fn2"

 Before this Court Sumner asserts that his conviction violated two federal constitutional provisions. For one thing, he claims his Sixth Amendment *fn3" right to effective assistance of counsel was violated by his attorney's failure (1) to tender a voluntary manslaughter *fn4" jury instruction, (2) to interview two eyewitnesses--Diane Barnes ("Barnes") and Dave Newsome ("Newsome")--and to call Barnes to testify, particularly after counsel had said in his opening statement that he hoped she would testify, and (3) to withdraw as counsel at the post-trial hearing because of his essential inability to argue his own ineffective assistance at trial as grounds for a new trial. Sumner also claims his Fourteenth Amendment rights to due process and equal protection of law, as well as his right to counsel, were violated when the trial court did not examine defense counsel about the possible neglect of Sumner's defense.

 Relevant Facts

 Sumner v. Mata, 449 U.S. 539, 544-47, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981) and Section 2254(d) make the Illinois Appellate Court's statement of facts presumptively correct, absent exceptions that do not apply here ( Hockett v. Duckworth, 999 F.2d 1160, 1165 (1993)). *fn5" This opinion will therefore set out that statement in full ( Montgomery v. Petersen, 846 F.2d 407, 408 n.1 (7th Cir. 1988)).

 But because Sumner's current claims are also based in part on material outside of the trial record--an affidavit by Barnes--this Court is not limited to the state courts' factual determinations ( Sullivan v. Fairman, 819 F.2d 1382, 1385-87 (7th Cir. 1987)). Hence the quotation of the Appellate Court's statement will be followed by a review of that affidavit.

 Finally, the ultimate question as to whether Sumner's counsel rendered effective assistance is viewed as a mixed question of law and fact. That renders it subject to de novo review ( Strickland v. Washington, 466 U.S. 668, 698, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Hockett, 999 F.2d at 1165).

 Appellate Court's Statement of Facts

 Here is the Illinois Appellate Court's statement of the facts in the case (People v. Sumner, No. 87 C 8293, slip op. 1-6 (Ill. App. 1st Dist. May 14, 1991)):

 
The State's evidence was as follows. Estelle Young (Cissy) testified that at the time of this incident, she lived with her husband, John Young (John), in a two-flat in Cicero, Illinois. Tom Patton, Dave Newsome, and Rick Cranston (Rick or the victim) were staying with the Youngs. Bill Pherigo lived upstairs, and Diane Barnes (Diane) was staying with him. All the occupants of the house except Cissy had been drinking beer that night.
 
At about 5 a.m. on June 7, 1987, John and Cissy had just returned home. A man, Phil Lewis, approached the house and said he was looking for Diane, with whom he left a short time later. Cissy then heard yelling and saw a car drive by with the two inside.
 
Shortly thereafter, Cissy and John were outside when Diane appeared and ran into the house. Cissy saw defendant walking toward John with a large silver knife in his hand. John ordered his neighbor's Doberman pinscher to attack defendant, and when the dog lunged, defendant stabbed it. Cissy ran into the house yelling and woke up the others. Rick, who had been asleep on a couch, ran out wearing only a shirt, pants, and socks.
 
Cissy, who was watching from the doorway, saw defendant at the foot of the porch steps with the silver knife in one hand and a black object in his other hand. Rick ran out the front door and down the steps; he appeared to fall down the final three steps and landed directly on defendant. Cissy said that Rick did not have anything in his hands as he came out of the house.
 
Rick and defendant engaged in a struggle which carried them through the front yard and across the street. Rick fell backwards when defendant hit him in the head with the knife; he braced himself with one arm and waved the other in front of him telling the defendant to stop. As Rick tried to turn and run, he slipped on the grass, and defendant, standing over Rick, stabbed him in the back. Rick remained on the ground shaking. Cissy saw John chase defendant and hit him once in the head with a shovel. Defendant ran away, and John apprehended Lewis, who had come with defendant.
 
John's testimony tracked Cissy's. He said that Lewis initially left with Diane in a car, and someone shouted that they would "be back to kill Billy." A short time later, Diane ran into the house as defendant and Lewis walked toward John, who was in the front yard. Defendant carried a blackjack and a silver butterfly knife, which he was flipping back and forth, and Lewis had a club. John ordered the dog to attack defendant and ran to his truck, which was parked across the street, to look for something with which to defend himself. He next saw Rick punching defendant, and defendant swinging the knife and blackjack. After he found the shovel, John saw Rick lying facedown on the ground; he chased defendant, hitting him once in the head with the shovel as he ran away. Lewis tried to escape in the car, but John captured him. John stated that Rick had no weapon at any point during this incident.
 
Tom Patton testified that he awakened early on June 7, 1987, when the Youngs arrived home. Later, he heard some commotion and someone yell "Billy, we'll be back." Patton went back to sleep, and was next wakened when he heard that there was a knife fight outside. Patton ran outside, where he saw defendant chase Rick and stab him in the back.
 
Traci Ihrig, the babysitter who stayed overnight at the Young's residence on June 6, testified that she called the police when the commotion started. She watched the incident from the front porch and saw defendant struggling with Rick. She said that Rick had nothing in his hands when he left the house.
 
Lewis testified that he was defendant's friend and co-worker. After a few drinks on the morning of June 7, 1987, the two went to pick up Diane. They drove to the house in Cicero where she was staying, and Lewis walked to the house to get her. Several people who were on the porch yelled at him, but he found Diane and took her back to the car. Diane shouted that she would be back, and the people on the porch made provocative gestures toward the car. This upset defendant. They went to Lewis' apartment, but returned to Diane's house so she could get her baby. After returning, both defendant and Lewis got out of the car; Lewis carried a club and defendant carried a butterfly knife in his hand. Defendant was walking toward the house when he was attacked by the dog. Lewis did not remember the rest of the incident because he was struck by one of the men from the house. A few minutes later, Diane was helping him into the car so he could escape when someone grabbed the keys to the ignition and smashed the windows. Lewis stated that he owned a knife and sheath which were in the car on that particular night. He could not recall if defendant ever had that knife during the incident. In his statement to the police immediately following the incident, however, Lewis said that "when he arrived [defendant] jumped out of the car with two knives." He also did not recall seeing anyone except defendant with a knife.
 
Cicero Police Officer Robert Negrete heard the description of defendant over his radio while he was in the area toward which defendant was seen fleeing. He saw defendant running and arrested him. Defendant was carrying a riot club and an object resembling a blackjack. He also had a silver butterfly knife covered with blood in his pocket. Negrete said that this type of knife is usually advertised as a martial arts weapon.
 
Dr. Robert Kirschner of the Cook County Medical Examiner's office performed the autopsy of the victim. The victim died from multiple stab wounds. He had been stabbed in the front right portion of his chest and on the left side of his lower back. He had several cuts and lacerations to his hands and arms, and stab wounds to the head. Kirschner concluded that these injuries were consistent with those that would be caused by the butterfly knife produced at trial.
 
Defendant testified in his own defense. He said that he always carried the silver butterfly knife and often used it at work, but that he never intended to injure anyone with it. After having some drinks with Lewis on the morning of June 7, 1987, they drove to see Diane, defendant's former girlfriend. Lewis went to the house and brought Diane back to the car. Some people at the house shouted at them, but no one yelled anything from the car. The three left in the car and stopped at Lewis' apartment, where Lewis picked up a riot stick. They took Diane back to get her daughter, and defendant waited outside the car while Diane went into the house. He heard someone say "go get him," and saw a man send a dog after him. Defendant ran toward the house, pulled his knife, and cut the dog. When he was near the house, three or four men ran off the porch and Rick charged him with what appeared to be a knife in his hand. Defendant's arm was cut and his shoulder was punctured. He admitted that he stabbed Rick, but claimed that he feared for his life and did so in self-defense. As he was running away, he was struck once with the shovel.
 
On cross-examination, defendant admitted that there was a second knife in the car, but that it belonged to Lewis. He claimed that he did not have the riot stick in his hand when Rick emerged from the house, but that he grabbed it from the car as he was fleeing. Further, he claimed that he did not stab Rick in the head, and that the knife which Rick carried was neither of those recovered.

 To the extent that any other aspects of the trial record need to be mentioned in order to resolve Sumner's claims, they will be referred to in the course of this opinion's substantive discussion.

 Barnes' Possible Testimony

 Although Sumner's counsel had told the jury in his opening statement that Barnes would "hopefully" testify on Sumner's behalf, *fn6" she never did appear at trial. In support of his current Petition Sumner has submitted an affidavit of Barnes in which she says this:

 
1. That I was present during the occurance [sic] that resulted in Mr. Walter Sumner being forced to defend himself. I saw him try to avoid the entire incident. I saw him when he was attacked and I saw that he was forced, under fear of death or great bodily harm, to defend himself.
 
3. I believe that my testimony would have changed the outcome of the trial in favor of Sumner because;
 
a. I would have testified that he returned to the scene of the violance [sic] for the sole purpose of picking up my ...

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