Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 8008-George W. Lindberg, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.
Donchii Malone was convicted of two counts of first degree murder in the Circuit Court of Cook County, Illinois. After challenging his conviction in the state courts of Illinois, Mr. Malone filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. The district court dismissed Mr. Malone's petition but granted him a certificate of appealability. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.
A. Facts and State Court Proceedings
On the morning of July 22, 1986, Larry Lane, LaRoyce Kendle and Antonio Stewart were in a car outside of Lane's apartment building. Michelle Davis and two men, later identified by witnesses as Phillip Taylor and Mr. Malone, approached the car. Davis asked the three men in the car if they wanted to fight. Kendle and Lane exited the car. Shots were fired, resulting in the deaths of Kendle and Lane. Stewart, Davis, Taylor and Mr. Malone fled the scene.
Davis, Taylor and Mr. Malone were arrested and charged with the murders of Lane and Kendle. Although all three of the defendants were tried jointly, Mr. Malone exercised his right to be tried by a jury, while Davis and Taylor opted for a bench trial.
During the trial, two eyewitnesses, Stewart and Oneida Tate, testified on behalf of the State. A third eyewitness, Anthony Villanueva, was called by Taylor's counsel; Mr. Malone's counsel chose not to call Villanueva, and, therefore, Villanueva testified outside the presence of Mr. Malone's jury.
Stewart, who was fifteen at the time of the events in question, testified that, while sitting in Lane's car, Davis approached the car. Davis asked Lane if "all three of us did we want to box." Tr. at 493. Lane responded that they did not want to fight. Kendle and Lane then exited the car, and Davis repeated her inquiry. Again, Lane responded that they did not want to fight. After some further discussion, Mr. Malone asked Lane, "[W]hat was up." Id. at 496. Lane responded, "What you want to be up?" Id. at 497. At that point, Mr. Malone said, "I'm going to show you what's up"; Mr. Malone backed away from the car and pulled a revolver from his waist. Id. According to Stewart, Mr. Malone then pointed the weapon at Lane's head and fired twice. Stewart further stated that Kendle attempted to re-enter the car, but Mr. Malone also shot him twice. Stewart testified that Davis watched this scene and laughed and that Taylor pulled a gun and pointed it at him. At that point, Stewart turned and ran away. As he ran, Stewart heard two additional shots ring out.
Later, after he believed that Mr. Malone, Davis and Taylor were out of the area, Stewart returned to the scene, yelling "the bitch popped 'em, the bitch popped 'em." Id. at 528. When the police arrived, Officer Teddy Williams interviewed Stewart. On cross-examination, Stewart admitted that, upon first talking with the police, he identified only Taylor and Davis as being involved in the shooting. Although he knew Mr. Malone, Stewart did not identify Mr. Malone as being involved until two o'clock that afternoon, after viewing a photo array at the police station. He identified Mr. Malone in a lineup at approximately 4:30 p.m.*fn1
The jury also heard the testimony of Oneida Tate. Tate lived in the apartment overlooking the crime scene. On the morning of the shooting, Tate was awakened by people talking on the street below her apartment. She described one of the men as wearing green hospital pants and a yellow t-shirt; Tate stated that she did not see this man's face. She described the second man as dark-skinned and wearing a Chicago Cubs hat, a dark jacket and blue jeans. Although Tate did not know personally the man in the Cubs hat, she testified that she recognized him as being from the neighborhood. After she had returned to bed, Tate heard shots fired. From the window, she saw Davis running down the street with a gun and two men running in the opposite direction. She heard Stewart shout "the bitch popped 'em." Tr. at 848. Tate called the police immediately. She was interviewed later that afternoon, and, in the evening, picked Mr. Malone out of a lineup as one of the individuals she had seen prior to the shooting. At trial, Tate identified Mr. Malone as the individual she had seen wearing the Cubs hat.
In addition to Stewart and Tate, co-defendant Taylor called Anthony Villanueva to testify. Villanueva witnessed the events on the morning of July 22, 1986, from his basement apartment, which looked directly out onto the scene of the shooting. Villanueva testified that, prior to the shooting, he had been friends with both Lane and Kendle. He also stated that Taylor was an "associate"-someone he would speak to regularly, but whom Villanueva did not consider to be a "friend." Tr. at 940-41. Finally, he testified that he knew Davis by sight as "Michelle," but did not know her last name. On the morning of the shooting, Villanueva was getting ready for school and observed Davis, Stewart, Lane, Kendle and two other men, whom he did not know, out on the street; Davis and Stewart were arguing. Villanueva was able to see the other two men for approximately two to three minutes before the shooting. After the shooting, Villanueva heard Davis say "they got popped" and heard Stewart say that Davis "didn't have to do all that." Id. at 938.*fn2 Villanueva further testified that Taylor was not one of the two men he had seen. On cross-examination, the prosecutor asked Villanueva whether he knew a person named Donchii Malone; Villanueva responded that he did not know him, but had heard of him. Id. at 941-42. Villanueva further stated that he would not "know Donchii Malone if he saw him" and would not know if the person "who did the shooting was a person by the name of Donchii Malone." Id. at 942. The prosecutor then asked Villanueva the following question: "Of the six people that you saw out there at the time of the shooting. Would you look around the courtroom and tell us if you see any of those six people in here anywhere in the courtroom?" Id. at 950. In response, Villanueva pointed to Davis; although Mr. Malone was present in the court-room at the time, Villanueva did not identify him as one of the individuals present during the shooting. As noted above, Villanueva's testimony was presented outside the presence of Mr. Malone's jury; after hearing this testimony, Mr. Malone's counsel did not seek to reopen Mr. Malone's case to offer Villanueva's testimony.*fn3
At the conclusion of the evidence and arguments, Mr. Malone's co-defendants were acquitted by the court. Mr. Malone, however, was convicted by the jury.
During his death penalty hearing, Mr. Malone's counsel called Detective Markham and questioned him about Villanueva's account of the events surrounding the shooting. The State's attorney objected. After an explanation regarding the facts that Mr. Malone's counsel sought to elicit, the court asked the following questions:
Court: Why didn't you go into those at trial?
Counsel: As a matter of trial strategy, I didn't go into them at that time but this conversation that Detective Markham had with Anthony Villanueva, I believe, your Honor, is very relevant for the purpose of the death penalty sentencing here.
Court: Well, would it not be of assistan[ce] to the jury if it was relevant?
Counsel: Well, as a matter of trial strategy, I didn't ask
Detective Markham during the trial but at this sentencing hearing, I, your Honor, would like to put into evidence what Anthony Villanueva told Detective Markham.
Tr. at 1139. After briefly reviewing Villanueva's testimony, the trial court allowed Mr. Malone's counsel to proceed; the court stated: "I recognize it is hearsay and I recognize that, for whatever reason, [counsel] had an opportunity to cross examine this witness and did not. But I will let him proceed." Id. at 1141.
After the hearing, the court sentenced Mr. Malone to natural life in prison. In rendering its sentence, the court expressed doubts about the reliability of Stewart's testimony: "The testimony of the principal witness, Antonio Stewart . . . is certainly a novel experience for the jury and the judge. Here is a fellow who was mixed up with these gangs, who was certainly high on something that night. I couldn't even be sure what time it was when he saw anything." Tr. at 1217.
Mr. Malone filed an appeal. In his appeal, Mr. Malone did not raise any claim of ineffective assistance of trial counsel; appellate counsel mistakenly believed that the issue could not be raised on direct appeal.*fn4 The state appellate court affirmed Mr. Malone's conviction, and the Supreme Court of Illinois denied leave to appeal.
Mr. Malone then sought post-conviction relief in state court. Among the issues raised in the petition were ineffectiveness of trial counsel for failing to call Villanueva and ineffectiveness of appellate counsel for failing to raise trial counsel's performance on direct review. The post-conviction court ruled that appellate counsel had not provided ineffective assistance. With respect to ineffective assistance of trial counsel, the court stated:
Now, no affidavit from Anthony Villanueva. Perhaps had the evidence been stronger concerning the position you assert, an affidavit would not be necessary. How-ever, in order to accept the petitioner's position, I would have to infer and read between the lines and draw inferences. And that's not appropriate for post conviction. And so, given that, you should have an affidavit and you don't. And I'm not going to accept that you that your arguments concerning what certain testimony meant, inferences can be derived is appropriate for purposes of this proceeding because I don't think that it is.
S.A. 37. The state post-conviction court went on to deny summarily the ineffective assistance claims and all other post-conviction claims with the exception of the allegation that Mr. Malone's due process rights had been violated through the State's use of Stewart's allegedly perjured testimony. Following an evidentiary hearing,*fn5 however, the court determined that Stewart's initial testimony implicating Mr. Malone was credible.
In the appeal following the denial of post-conviction relief, Mr. Malone raised two issues. The first issue was stated accordingly:
Donchii Malone was denied the effective assistance of counsel on direct appeal where appellate counsel failed to raise trial counsel's ineffectiveness: (A) in not investigating or calling Anthony Villanueva, a witness in co-defendant's case, as a witness in the defense case-in-chief to rebut the testimony of the state's star witness, Antonio Stewart; and (B) in not adducing testimony of the police officer Teddy Williams, who also testified at co-defendant's trial and who would have contradicted key witness Stewart's description of the shooter. Where the evidence was extremely close and where the state's case against the ...