The case was then passed. When it was recalled, the following colloquy occurred:
MR. WELLISH [defense counsel]: This is Robert Decreti. ... We are ready to begin the trial. It is my understanding there is one thing that I would like to say before we begin. Mr. Decreti told you earlier and I confirmed this, we are currently and have been during the duration and pendency of the case looking for a witness, alibi witness. Obviously, I don't have a formal name and address, but I orally want to put in the defense of alibi at this time and supplement it later.
MS. MEBANE [prosecutor]: As to the address, if he is putting in the defense alibi, I am sure his client has informed him of the location. He can give the location now.
THE COURT: Does your client have an address?
MR. WELLISH: The original address he had moved from, and I don't believe that Mr. Decreti knows or knew the exact address at the time, just a general location.
THE COURT: Give me the general location.
MR. WELLISH: First Floor, rear apartment, 34th and Leavitt.
MS. MEBANE: You have no idea of the name of the person you are searching for?
MR. WELLISH: We have a first name, Paul. We do not have a last name.
The trial did not conclude on October 15, but resumed on October 21, 1991, when the defense offered its only witness. Paul was apparently not found; as far as can be determined from the petition, he was never found.
In order to show that his counsel's representation was so defective as to have violated his Sixth Amendment right to counsel, a petitioner must show not only that his attorney's representation fell below an "objective standard of reasonableness" under "prevailing professional norms," Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), but that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; Mason v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995), cert. denied, 516 U.S. 840, 133 L. Ed. 2d 74, 116 S. Ct. 125 (1995). Here, this translates into a requirement that DeCreti allege facts tending to show that (a) a reasonably competent attorney would have been able to locate the witness or witnesses, and (b) that the witness(es)' testimony would probably have changed the outcome.
Defense counsel has an obligation to make a reasonable investigation, Strickland, 466 U.S. at 691, and DeCreti alleges that his attorney "never attempted to locate the witnesses." But DeCreti does not say how he knows this, and the reasonable inference from the transcript is to the contrary. There is no explanation of how a competent attorney would have been able to locate them, other than DeCreti's allegation that his attorney failed to use the investigator in the Public Defender's office. Pet. Br. at 13. DeCreti states in his brief that he gave counsel an address, but the transcript shows that counsel stated, in his presence and without objection, that the witness no longer lived there. Further, it appears that DeCreti had friends and acquaintances looking for the witness and was not relying on counsel to find him: "I have a phone number from a person who knows were [sic]. .... They are trying to find out right now his address and phone number. I have a phone number of the person who is looking for him for me."
If these allegations of counsel's incompetence are inadequate, the allegations of prejudice are nonexistent. Nowhere does DeCreti state what the testimony of these missing witnesses would have been. DeCreti's claim thus rests on a double speculation, that a competent attorney would have found a witness or witnesses, and that he or they would have confirmed an alibi defense, an alibi defense that was never raised because DeCreti chose not to testify.
Of course, the failure of defense counsel to locate alibi witnesses can be grounds for habeas relief. But the kind of vague and speculative allegations DeCreti makes are insufficient. "Notice pleading" is not sufficient in habeas cases, since "the petition is expected to state facts that point to a 'real possibility of constitutional error.'" Advisory Committee Note to Rule 4 (quoting Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
Further, even if the allegations of the petition were sufficient to raise a claim of ineffective assistance of counsel, DeCreti could establish his entitlement to habeas relief only through an evidentiary hearing, and he is not entitled to one. The federal habeas statute now provides that
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--