Appeal from the United States District Court for the Central District of Illinois. No. 94 C 2055--Harold A. Baker, Judge.
Before Rovner, Diane P. Wood, and Williams, Circuit
The opinion of the court was delivered by: Williams, Circuit Judge
Jerome White was convicted, following a jury trial in state court, of murder and con- spiracy to commit murder. After his conviction was af- firmed on direct appeal and state post-conviction relief was denied, White petitioned for habeas corpus, asserting, among other things, that his trial counsel was ineffec- tive because he failed adequately to consult with him be- fore trial and failed to call his alleged accomplice, Bernice Caldwell, to testify in his defense. In an earlier appeal, we held that the district court erred in dismissing his claim without an evidentiary hearing on the question of counsel's performance, and that White had established that he was prejudiced by counsel's performance. White v. Godinez, 143 F.3d 1049 (7th Cir. 1998) (White I). After hearing evidence on remand, the district court held that trial counsel's performance was constitutionally inade- quate and granted the writ of habeas corpus. We agree that White has demonstrated that counsel's perform- ance was inadequate, and finding no basis to disturb our earlier holding that prejudice was established, affirm the judgment of the district court.
Waymond Jackson and Donald Stewart were robbed and shot by Doyle Johnson and Al Walker at the Pesotum rest area on Interstate 57 near Champaign, Illinois. Jack- son died, but Stewart survived. Jerome White and Bernice Caldwell (whom White refers to as his common-law wife) were charged with murder and conspiracy to commit mur- der for hiring Johnson and Walker to kill the victims. At Jerome White's trial, Johnson, the state's primary witness, testified that the victims were competitors to a prostitution business run by White and Caldwell at the Pesotum rest area, who wanted them "taken out of the game." Johnson said that he and Walker met White and Caldwell in Chicago and rode with them to Champaign, Illinois. During that trip, according to Johnson, White offered Johnson and Walker each $1,000 to do the job. When they arrived in Champaign, Johnson and Walker accompanied White and Caldwell to Caldwell's home, where they obtained a rental car and guns.
The theory of defense relied on by White's counsel, Michael Green, was that it was Jerome's brother, Michael White, who hired Johnson and Walker to shoot the two victims. This theory was consistent with Johnson's original statement to police, which implicated Michael White. But Johnson changed his story 5 days before trial and instead implicated Jerome White. Green's theory was contradicted by Caldwell's young daughter, Theresa, who testified that she saw Jerome White (not Michael) and her mother meet with two men at Caldwell's home on the night of the murder. The police also verified that Michael White had an alibi--he was on a Greyhound bus traveling to Champaign and could not have met with Johnson in Champaign at the time that the murder was planned.
After his conviction was affirmed on direct appeal, White filed a petition for post-conviction relief in state court which included the claims at issue in this appeal: that Green rendered ineffective assistance by meeting with him for just 20 minutes before trial and failing to con- sult with him regarding potential witnesses and trial strategy. The circuit court dismissed his petition without an evidentiary hearing, the appellate court affirmed, and the Illinois Supreme Court denied leave to appeal. See White I, 143 F.3d at 1052. White then filed a petition for habeas corpus in federal district court. As to the ineffec- tive assistance claims that are still at issue, we held that the district court erred in dismissing his claims with- out conducting an evidentiary hearing. We also held that White had established that Green's performance prej- udiced him. White I, 143 F.3d at 1054-56. *fn2
On remand from this court, the district court held an evidentiary hearing. White testified that his trial attor- ney, Michael Green, met with him twice before trial. At the first meeting, which was five months before trial and lasted 10 minutes, White and Green discussed Green's fee and how White would pay it. After this meeting and before trial, White telephoned Green's office but Green did not return his phone calls. White did not meet with Green again until the evening before trial. At that second meeting, which lasted 20 minutes, they discussed jury selection issues, Theresa Caldwell's testimony, and the possibility that Bernice Caldwell would testify for the state.
According to White, he asked Green to explore the possibility of Caldwell's testifying on his behalf, but Green ignored his request. Green never discussed trial strategy or any other possible defense witnesses, including White himself, and never asked for information relevant to the defense. White offered an affidavit from Bernice Caldwell, in which she stated that she would have tes- tified at White's trial, and the transcripts of Caldwell's and White's testimony from Caldwell's trial. The testi- mony contained in those documents is consistent with White's version of what he and Caldwell would have said if called to testify at his trial: that he and Caldwell were at her home on the night of the murder, went to bed shortly after arriving there with Johnson and Walker, and discovered that the guns and rental car were missing when they awoke.
White also introduced inmate visitor logs from the jail which show that Green signed in and out for meetings with White twice. According to those records, the first time Green signed out 15 minutes after he signed in, and the next time he signed out 30 minutes after he signed in. White testified that on the evening of the sec- ond visit, he was in the shower when he learned that he had visitors and that it took him five to seven minutes longer than usual to reach the visitor area. The county sheriff, who oversaw operations at the jail where Green was detained before and during the trial, testified (by way of deposition admitted at the hearing) that it was the jail's practice to record all inmate visits and that he could not remember a single incident of an officer's failing to record an attorney's visit during his twenty-year tenure.
The district court concluded that Green's performance was outside the range of professionally competent rep- presentation. Based on this court's earlier holding that White was prejudiced by Green's performance, the dis- trict court granted White's petition for a writ of habeas corpus. The state appeals and, for the reasons that follow, we affirm.
We evaluate White's claim of ineffective assistance of counsel under the two-part standard of Strickland v. Washington, 466 U.S. 668 (1984), which requires that a defendant show that the attorney's performance fell be- low "an objective standard of reasonableness," 466 U.S. at 688, and "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; Hen- derson v. Walls, 296 F.3d 541, 553 (7th Cir. 2002). White's petition was filed before the effective date of the Anti- terrorism and Effective Death Penalty Act (AEDPA), so we apply pre-AEDPA standards. Wright v. Walls, 288 F.3d 937, 941-42 (7th Cir. 2002); White I, 143 F.3d at 1053. We presume correct the state court's determination of historical fact, Kavanaugh v. Berge, 73 F.3d 733, 735 (7th Cir. 1996), and review the district court's findings of fact for clear error. Griffin v. Camp, ...