The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Petitioner Christopher Mosley moves this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As the court has made clear, Mosley has one viable claim based on his trial counsel's ineffectiveness for failing to interview and call Keely Jones and Sharon Taylor.*fn1 For the reasons explained below, Mosley's petition is granted.*fn2
I. Ineffective Assistance of Counsel Claim
To establish ineffective assistance of counsel, a petitioner must demonstrate: (1) that his attorney's performance was deficient; and (2) that such representation prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first requirement is satisfied by showing that counsel's performance fell below the "objective standard of reasonableness" guaranteed under the Sixth Amendment. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 687). To satisfy the Strickland prejudice element, a petitioner must demonstrate that it is reasonably likely that, but for his counsel's errors, the decision reached would have been different. Strickland, 466 U.S. at 696.
1. Deficient Performance Under Strickland
Mosley's claim is that his trial counsel was ineffective in failing to call two witnesses, Jones and Taylor, to support his defense that he was across the street at the time the fire began, and did not direct his co-defendants to burn the building down. Jones states in her affidavit that she was with Mosley "during the course of the evening before the incident occurred." Jones Aff. at 1, ¶ 2. At approximately 7:45 to 8:00 p.m. that night, Jones came to the school yard and met up with several other friends, including Mosley. Id. at 1, ¶ 3. Jones and the others "had been there a couple of hours," when they heard someone shouting about a fire; they looked across the street and saw the building on fire. Id. at 1, ¶ 5. They, including Mosley, all ran across the street to see if they could help anyone; Mosley and others helped some people to safety. Id. at 1, ¶¶ 6-7. Jones would have testified at trial "because [Mosley] and I both know that none of the accusations against him are true, because we was [sic] together on the night in question." Id. at 1, ¶ 10.
Taylor's affidavit states that she was in her apartment at 7108 South Rhodes on the night of the fire. Taylor Aff. at 1, ¶ 2. Her window was open and she "never heard Mosley yelling to someone to go in and burn the building down." Id. at 1, ¶ 5. Taylor "did hear and see Mosley and a group of other's [sic] running from the school yard stating that the building was on fire." Id. at 1, ¶ 6. Mosley and others helped people, including Taylor's son, to safety. Id. at 1, ¶¶ 7, 8. Taylor found out that Mosley "'allegedly' told someone else to burn the building down, and 'supposedly' running around saying let the building burn." Id. at 1, ¶ 10. Taylor averred that she knew that was not true, because "[she] witnessed Mosley and some other people run from across the street out of the school yard." Id. at 1, ¶ 11. Jones and Taylor's affidavits make clear that Mosley's counsel never met with them to determine what their respective testimonies would have been. Jones and Taylor averred that they, on their own initiative, approached trial counsel (either before or after a court appearance) to offer to testify on Mosley's behalf, but trial counsel never followed up with them, despite his indication to them that he would need both to testify.
The state appellate court concluded that trial counsel's decision not to call Jones and Taylor was strategic, and did not fall below an objective standard of reasonableness. The court noted that counsel presented an alibi defense by calling a different witness, Ishi Coward, who testified that petitioner was across the street from the scene of the crime and that she never heard petitioner tell anyone to burn the building down or let the building burn. Because Jones' and Taylor's affidavits, filed more than five years after the fire, indicated that they would have provided the same testimony, the court concluded that their testimony would have been cumulative to Coward's. The court further concluded that counsel's decision to call only one alibi witness was reasonable as Jones' and Taylor's testimony would have reinforced the fact that petitioner was in fact across the street from the fire, thereby strengthening the State's case against petitioner on accountability.
After reviewing the Illinois Appellate Court's decision, pertinent caselaw and the record (as it was presented to the state court), the court concludes that the appellate court's decision -- that trial counsel was not ineffective for failing to interview and call Jones and Taylor -- was objectively unreasonable. First, the appellate court concluded that Mosley's trial counsel decided, as a matter of strategy, not to call Jones and Taylor because their testimony would have merely been cumulative to the single witness called by Mosley's counsel. In Washington v. Smith, 219 F.3d 620 (7th Cir. 2000), petitioner argued for habeas relief based on the fact that his trial counsel failed to contact and present the testimony of additional alibi witnesses. As in this case, Washington provided his counsel with names of individuals who would support his alibi, but his counsel never attempted to contact these individuals to ascertain what they might have contributed to the case. 219 F.3d at 630. In rejecting the Wisconsin Court of Appeals' conclusion that Washington's counsel performed effectively, the Seventh Circuit concluded that counsel's failure to investigate and call additional alibi witnesses was deficient. Id. The Seventh Circuit soundly rejected the state appellate court's conclusion concerning counsel's failure to call additional alibi witnesses.*fn3 In light of the fact that Washington's counsel put on one alibi witness at trial, the state appellate court concluded that testimony by the additional alibi witnesses never called by counsel would have been merely cumulative to the single alibi witness' testimony. In rejecting this, the Seventh Circuit relied on the fact that Washington's counsel called only one alibi witness whose credibility may have been impaired because of prior convictions. 219 F.3d at 634. The court stated,
The impact of three more witnesses corroborating Washington's alibi would not have been 'cumulative' as the Wisconsin Court of Appeals believed. Evidence is cumulative when it 'supports a fact established by existing evidence,' Black's Law Dictionary 577 (7th ed. 1999), but Washington's whereabouts on the day of the robbery was far from established -- it was the issue in the case. The fact that [the sole alibi witness] had already testified to facts consistent with Washington's alibi did not render additional testimony cumulative. Indeed, the additional testimony . . . would have added a great deal of substance and credibility to Washington's alibi. See Montgomery v. Peterson, 846 F.2d 407, 411-15 (7th Cir. 1988) (finding counsel ineffective for not calling additional disinterested alibi witnesses not subject to the same impeachment as family members); Crisp v. Duckworth, 743 F.2d 580, 585 (7th Cir. 1984) (finding that "[h]aving independent witnesses corroborate a defendant's story may be essential" and "testimony of additional witnesses cannot automatically be categorized as cumulative").Id.
As in Washington, Mosley's counsel was deficient in failing to interview and call Jones and Taylor as alibi witnesses. Mosley explained to the state court that he told his counsel that there were a number of witnesses, including Keely Jones and Sharon Taylor, who could support his alibi defense, and the Jones and Taylor affidavits show that they themselves attempted to contact Mosley's counsel and offered to testify on his behalf. Mosley's counsel never followed up with either of these alibi witnesses. According to Mosley, after the State rested its case, Mosley's counsel informed Mosley that he intended to rest without calling a single witnesses. Only after Mosley became upset and told his counsel that he planned on telling the trial judge that he wanted to testify and call defense witnesses did trial counsel call a witness, Ishi Coward, who testified that Mosley was with her across the street at the time the fire was started, and that she never heard him threaten Fernando or make the "burn this motherfucker down" statement. Coward's testimony, for the most part, supported Mosley's defense but it was not without flaws -- for example, Coward got confused by the trial judge's questioning and seemed to testify at one point that no one from the school yard, including Mosley, ever left to go to the burning building. Additional testimony from two individuals corroborating Coward's testimony that Mosley was across the street at the time the fire was started would not have been merely cumulative. As was the case in Washington, Mosley's whereabouts at the time of the crime was "far from established -- it was the issue in the case." Washington, 219 F.3d at 634.
Finally, the court concludes that the state appellate court's conclusion that the witnesses' testimony would have served to bolster the state's contention that Mosley was across the street was also objectively unreasonable. Having reviewed the record of the state court proceedings, this argument is not tenable. As was made clear by the trial judge at the conclusion of the trial and at Mosley's sentencing, the pivotal piece of evidence connecting Mosley to the two boys who actually started the fire was the alleged directive he gave to "burn this motherfucker down." While it is true, as the respondent argues, that a defendant need not be present at the scene of a crime to be held accountable for that crime, the trial judge rejected the contention that Mosley was across the street when the fire started.*fn4 In finding Mosley guilty, the trial judge concluded that Mosley was at the apartment building telling his fellow gang members to burn the building down just before they did as they were told. The appellate court's statement that the alibi witnesses' testimony would have supported the state's theory does not hold water. Mosley never denied that he was in the area at the time of the fire, but rejected the state's argument that he was below Fernando's window, directing his co-defendants to set the building on fire. Testimony by Jones and Taylor would not have supported the state's theory, but would have solidified Mosley's alibi defense.
3. Prejudice under Strickland
On three different occasions in its opinion, the Illinois Appellate Court applied an incorrect standard for analyzing any potential prejudice arising from counsel's failure to call Jones and Taylor as witnesses. Instead of applying the "reasonable probability" standard from Strickland, the Illinois Appellate Court required a showing that Mosley "was prejudiced, that is, the result of the proceedings would have differed but for defense counsel's deficient performance." State v. Mosley, No. 1-03-0134 (Ill. App. Ct. 2004) at 9. "To show a reasonable probability of a different outcome is a less demanding burden than to show that the outcome would have been different." Stanley v. Bartley, 465 F.3d 810, 813 (7th Cir. 2006) (italics in original). In light of the fact that the Illinois Appellate Court applied the wrong standard under Strickland to Mosley's ...