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Toliver v. McCaughtry

August 27, 2008

STEPHEN TOLIVER, PETITIONER-APPELLANT,
v.
GARY R. MCCAUGHTRY, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 02 C 1123-Patricia J. Gorence, Magistrate Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED SEPTEMBER 5, 2007

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

Stephen Toliver was convicted by a jury of first-degree intentional homicide (as a party to a crime), in violation of sections 940.01 and 939.05 of the Wisconsin Statutes. Mr. Toliver was sentenced to life in prison. After exhausting his state remedies, he filed in the district court a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. The district court denied relief, and Mr. Toliver timely appealed to this court.

For the reasons set forth in this opinion, the judgment of the district court is reversed, and the case is remanded for proceedings consistent with this opinion.

I. BACKGROUND

A. The Facts and Mr. Toliver's Criminal Trial

Mr. Toliver's state conviction arose out of the murder of Tina Rogers. In 1991, Mr. Toliver and his brother, Oliver Toliver, were living with Commosie Thompson, Jo-Etta Foster and Tina Rogers. Thompson was selling drugs out of the residence and discovered that $1,800 in drug proceeds was missing. Thompson told Mr. Toliver, who had been serving as Thompson's drug courier, about the missing money. Mr. Toliver informed Thompson that Rogers had taken it.

Mr. Toliver then told his brother Oliver to "strap up"; both men grabbed firearms and went looking for Rogers.

R.30, Ex. 2 at 3. Both Foster and Thompson testified that, from their observations that evening, they did not believe that Mr. Toliver or Oliver intended to harm Rogers upon finding her. Mr. Toliver testified that he had told Oliver to "strap up" because their house had been "shot up" several weeks after Rogers had moved into the house and they suspected that Rogers' boyfriend, whom Mr. Toliver believed to be violent, had been involved in the shooting. Id., Ex. 8 at 30.

Upon finding Rogers, Mr. Toliver and Oliver brought her back to the residence; upon their arrival, Thompson, Corey Henry, Darian Robinson and Foster were present. Once inside, Mr. Toliver began questioning and arguing with Rogers about the missing money; Rogers denied taking it. Foster testified that Oliver, who had a TEC-9 handgun in his hand, went over to Mr. Toliver, who also was holding a firearm, and whispered something. Mr. Toliver then began yelling at Rogers.*fn1 Mr. Toliver then tossed his sawed-off shotgun next to Thompson and told him to shoot whomever he thought had stolen the money (including Mr. Toliver himself); Thompson did not respond, and Mr. Toliver picked up the shotgun.

At this point, Oliver moved aggressively toward Rogers, but Mr. Toliver pushed him away. Henry testified that Mr. Toliver had told Oliver to "chill out and sit down." Id., Ex. 5 at 17. Mr. Toliver then asked Thompson what he intended to do. Thompson responded, "Whatever is clever." Id., Ex. 8 at 42. Robinson testified that Mr. Toliver had asked Thompson whether he was sure. Thompson testified that Mr. Toliver then had stepped back. Oliver then got up and shot Rogers once in the forehead at point-blank range.

What Mr. Toliver said next remained in dispute at trial. Thompson and Robinson each testified that they heard Mr. Toliver say some variation of "[k]ill that bitch, kill her." Id., Ex. 4 at 36; id., Ex. 6 at 56. Foster testified that, after hearing the first gunshot, she reentered the room and saw both Mr. Toliver and Oliver standing by Rogers, who was slumped on the floor bleeding profusely; Oliver had his gun pointed at Rogers' head. Foster testified that she then heard Mr. Toliver say, "shoot the bitch." Id., Ex. 7 at 80. Mr. Toliver, however, testified at trial that he had said, "you done killed the bitch." Id., Ex. 8 at 44. After Mr. Toliver's comment, Oliver again shot Rogers in the head.

B. Wisconsin State Court and District Court Proceedings

On January 30, 1992, Stephen Toliver was convicted by a jury in the Milwaukee County Circuit Court of first-degree intentional homicide (as a party to a crime), in violation of sections 940.01*fn2 and 939.05*fn3 of the Wisconsin Statutes. The court sentenced him to life imprisonment. After sentencing, Mr. Toliver filed a pro se appeal.

On direct appeal to the Court of Appeals of Wisconsin, Mr. Toliver brought, inter alia, a sufficiency of the evidence claim. Mr. Toliver argued that the evidence against him was circumstantial and insufficient. The Wisconsin appellate court rejected this characterization of the evidence, explaining that [w]e need not belabor the facts further to determine that they overwhelmingly establish that Stephen instigated the homicide, enlisted his brother Oliver's assistance, and intended to cause Rogers' death. Although Oliver immediately caused Rogers' death, it was Stephen who intentionally directed it and assisted in it.

Stephen argues that the evidence was circumstantial. It was not. Four eyewitnesses testified to Rogers' bloody and merciless execution-style murder at the hands of the Tolivers.

State v. Toliver, No. 93-0510, at 5 (WiS.Ct. App. May 10, 1994) (R.19, Ex. C). The Wisconsin appellate court also stated: "The facts . . . overwhelmingly establish Toliver's culpability, indeed his leadership, for this savage murder. Four eyewitnesses' evidence, the murder weapon and Toliver's shotgun, the wrappings for Rogers' body and a plethora of other evidence were presented or described to the jury." Id. at 14. The court affirmed Mr. Toliver's conviction.

One judge concurred in the court's judgment but did "not join in the reasoning of the majority in all respects." Id. at 17. Although he did not state whether he agreed with the majority's characterization of the evidence against Mr. Toliver, the concurring judge noted, "On several issues, I am troubled by the way in which the majority seems to ignore or inadequately address Toliver's arguments." Id.

After the Supreme Court of Wisconsin denied Mr. Toliver's petition for review, he proceeded under, and exhausted, his Wisconsin state habeas remedies.

Mr. Toliver then filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Wisconsin. On November 9, 1999, the district court granted conditionally Mr. Toliver's petition on the ground that he had been deprived of his right to counsel during his pro se direct criminal appeal in Wisconsin state court. Wisconsin ex rel. Toliver v. McCaughtry, 72 F. Supp. 2d 960, 979 (E.D. Wis. 1999). The district court ordered that Mr. Toliver be released or that the state court permit him to refile his direct appeal with the assistance of counsel.

The state chose the latter course, and Mr. Toliver, represented by counsel, consequently returned to the state trial court as part of his reinstated direct appeal.*fn4 Mr. Toliver contended, inter alia, that his trial counsel had provided ineffective assistance of counsel and that the prosecution had failed to disclose exculpatory evidence.

With respect to the ineffective assistance of counsel claim, Mr. Toliver submitted affidavits from Angeal Toliver and Harvey Toliver. The affidavits, which we describe in more detail below, disclosed that these two individuals had offered to testify on Mr. Toliver's behalf. According to Mr. Toliver, the testimony offered in the affidavits tended to show that Oliver had acted alone when he shot Rogers and that Mr. Toliver did not otherwise intentionally aid and abet Oliver's murder of Rogers. Mr. Toliver argued that his trial counsel was ineffective for failing to call Angeal Toliver to testify during his criminal trial and, in the case of Harvey Toliver, for failing to interview him.

With respect to the exculpatory evidence claim, Mr. Toliver submitted an affidavit from Cornell Smith. The affidavit, which we also discuss in more detail below, disclosed the existence of a letter that Smith claims to have sent to Mr. Toliver's prosecutor prior to the criminal trial. According to the affidavit, the letter that Smith allegedly had sent to the prosecutor disclosed statements that also tended to show that Oliver had acted alone when he shot Rogers and that Mr. Toliver had attempted to dissuade Oliver from killing Rogers. Mr. Toliver argued that Smith's letter constituted exculpatory evidence that was not, but should have been, disclosed to him prior to trial.

The state trial court denied Mr. Toliver's post-conviction motion, and he appealed these two issues, among others, to the Court of Appeals of Wisconsin. The Court of Ap-peals of Wisconsin, as discussed in more detail below, affirmed Mr. Toliver's conviction as well as the trial court's denial of post-conviction relief. State v. Toliver, No. 00-2460, 2001 WL 1084999 (WiS.Ct. App. Sept. 18, 2001) [hereinafter Toliver II]. The court held that the evidence against Mr. Toliver was overwhelming and that, therefore, there was no reasonable probability of a different result had Mr. Toliver's counsel called Angeal Toliver and Harvey Toliver to testify or had the contents of Smith's letter been disclosed to Mr. Toliver's defense counsel.

Mr. Toliver then filed another habeas petition under 28 U.S.C. ยง 2254 in the Eastern District of Wisconsin. The district court denied that petition on January 31, 2006. Mr. Toliver timely filed a notice of appeal and requested from the district court a certificate of appealability. On April 24, 2006, the district court granted Mr. Toliver's request for a certificate of appealability ("COA") on four of the six issues that he raised before that court. After studying the briefs and the record and after oral argument, we granted a COA ...


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