Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 366 Wayne R. Andersen, Judge.
Before POSNER, Chief Judge, and CUDAHY and RIPPLE, Circuit Judges.
DECIDED SEPTEMBER 16, 1997
Albert Wright sought a writ of habeas corpus under 28 U.S.C. sec. 2254 on the ground that his trial counsel rendered ineffective assistance by failing to investigate adequately and present a defense. Mr. Wright alleged that trial counsel failed to interview or call three witnesses and was dilatory in interviewing one potential alibi witness who would have provided the jury with reasonable doubt as to his guilt. He now appeals the district court's denial of his petition. For the reasons set forth in the following opinion, we vacate the judgment of the district court and remand the case for proceedings consistent with this opinion.
During the very early morning hours of April 6, 1990, Michael Ritter was attacked at Janet Lee's Tavern. He was slashed twice across the face and once across the back with a razor-like weapon. Albert Wright later was convicted of armed violence and aggravated battery in the state court in Lake County, Illinois.
Ritter and Gloria Payne worked at Baxter Laboratories in Round Lake, Illinois. On April 5, 1990, at approximately 8:00 p.m., Ritter and Payne had an altercation; angry words were exchanged; Payne shoved Ritter. At approximately 11:45 p.m., Greg Hanan saw Payne leave Baxter and talk to a man who was in a blue Toyota. According to Hanan, Payne returned to the building, and the man drove away in a white Chevy Corsica. It is unclear from Hanan's testimony whether he saw the man arrive and, if he did, whether the man was driving the Toyota or the Chevy. In any event, Hanan testified that he did not see the man well enough to identify his race or to recognize him afterwards.
Ritter's shift ended at midnight. After work, he and other Baxter employees went to Janet Lee's, a tavern, to cash their paychecks. *fn1 The tavern had a special window in the back for this purpose. After cashing his check, Ritter stood in the check-cashing area talking with other Baxter employees. Someone came up behind him and slashed his face twice and his back once. The attacker said something to the effect of "that will be the last time you screw around with anybody." Ritter did not see his attacker and therefore was unable to identify him. Ritter later stated that he had never seen Mr. Wright before the attack.
Barbara Thompson is a Baxter employee who also went to Janet Lee's to cash her check that night. She testified that when she got there she saw a man pacing back and forth in front of the door leading to the check-cashing window. She stated she was approximately four feet away from him and that the area was well lit. Thompson said the individual rushed past her as she opened the door, went up to Ritter (who was facing away from the door) and appeared to punch him in the back two or three times. She said the individual then ran past her out of the bar. Thompson made an in-court identification of Mr. Wright as the individual she saw. She also identified his picture in a photo line-up and his person in a physical line-up. On cross-examination, she admitted that during the physical line-up she asked two people to step forward before choosing Mr. Wright, that on the night of the attack she observed the attacker for only a matter of moments and had been terrified, and that she never saw a weapon.
Richard Davis, also a Baxter employee, testified that on the night of the attack he, Ritter and Miguel Nieves left Baxter at about 11:55 p.m. and drove to Janet Lee's to cash their checks. Davis testified that he noticed a man, whom he later identified as Mr. Wright, standing in the doorway to the hall. He said that the man lunged past him and his friend, went up to Ritter and appeared to slap him in the face and then hit him in the back. Davis stated that he was approximately one foot or eighteen inches away from Ritter, close enough to be splattered by Ritter's blood. Davis followed Mr. Wright out of the bar and saw him get into a white Chevrolet Corsica with black trim and drive away. Davis also picked Mr. Wright out of photo and physical line-ups. On cross-examination, Davis admitted that he was not wearing his eyeglasses at the time of the attack and that he did not see a weapon.
Other testimony established that, at the time of the attack, Payne and Mr. Wright shared an apartment in Zion, Illinois. Further, Mr. Wright was employed as a printer in Mundelein, Illinois, used a razor-like knife in his job, and left work shortly after 11:00 p.m. on April 5th. His former supervisor, Roy Olson, testified that Mr. Wright normally drove a brown Ford Fairmont with a black hood. However, about two weeks before the attack, Olson saw him driving a maroon Toyota. On cross-examination, Olson admitted that he did not remember what kind of car he had seen Mr. Wright driving two weeks before the attack, and that he certainly did not remember what car Mr. Wright had been driving on April 5, 1990. Later, the officer who arrested Mr. Wright testified that, immediately before the arrest, Mr. Wright had been driving a blue Toyota.
The defense called only one witness, Mary Rivera. She testified that she was standing approximately one or two feet away from Ritter when he was attacked, but that she was unable to identify the attacker. On cross-examination she admitted that Davis was closer to Ritter than she had been, that the only description of the attacker she was able to give was that he had glasses and was wearing an orange jacket, and that she did not know if Mr. Wright (sitting at the defense table) had appeared in the line-up which she viewed.
The jury convicted Mr. Wright, and the judge imposed an extended-term sentence of 40 years' imprisonment. The judgment was affirmed on direct appeal, but remanded to correct some paperwork. Mr. Wright also filed a pro se petition seeking post-conviction relief on the ground that he was denied the effective assistance of counsel. The state court summarily dismissed the petition as frivolous. The state appellate court addressed the merits of his claim. However, the appellate court decided that Mr. Wright's claims did not warrant an evidentiary hearing. The state appellate court first held that Mr. Wright had failed to establish prejudice because he had failed to present affidavits from the witnesses presenting the testimony that they would have given if called to testify. The court further held that, even if the witnesses had given the testimony that Mr. Wright claims they would have given, the result would have been the same. Finally, in summary fashion, ...