In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2142

Carl Dixon,

Petitioner-Appellee,

v.

Donald I. Snyder,

Respondent-Appellant.


Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 2844--John A. Nordberg, Judge.

Argued January 10, 2001--Decided September 20, 2001



  Before Ripple, Kanne, and Williams, Circuit
Judges.

  Kanne, Circuit Judge. This appeal raises
one crucial question: whether the
Illinois Appellate Court’s determination
that Carl Dixon was not deprived of the
effective assistance of counsel in his
state court murder trial was unreasonable
in light of Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). We find that the court’s
determination was unreasonable, and thus
affirm the order of the district court
granting Dixon’s petition for a writ of
habeas corpus.

I.   History

  In an appeal from a ruling on a petition
for habeas relief, we review the district
court’s findings of fact for clear error.
See Denny v. Gudmanson, 252 F.3d 896, 900
(7th Cir. 2001). Under the statutory
framework governing habeas review, "state
court factual findings are presumed to be
correct unless the petitioner rebuts the
presumption with ’clear and convincing’
evidence." Sanchez v. Gilmore, 189 F.3d
619, 623 (7th Cir. 1999), cert. denied
sub nom. Sanchez v. Schomig, 529 U.S.
1089, 120 S. Ct. 1724, 146 L. Ed. 2d 645
(2000); 28 U.S.C. sec. 2254(e). The
district court’s opinion provided a
substantially more thorough discussion of
the facts than either of the Illinois
Appellate Court opinions. Compare Dixon
v. Washington, No. 97 C 2844, 2000 WL
640885 (N.D.Ill. March 31, 2000) with
People v. Dixon, 628 N.E.2d 399 (Ill.
App. Ct. 1993) and People v. Dixon, No.
1-95-2761, slip op. (Ill. App. Ct. May
30, 1996). The district court did not
determine that any of the state courts’
factual findings were incorrect, it
simply supplemented the factual
discussions in the state court opinions
after a review of the trial record. As we
find the district court’s discussion to
be an accurate recitation of the facts in
this case, we incorporate it here:

  . . . Patrick Marshall [and] . . .
Christopher Carlisle [were standing next
to each other on the sidewalk] when a
green car pulled up. A man got out and
shot Marshall three times with a .25
caliber handgun. Marshall attempted to
run away, but only made it a half of a
block before collapsing and dying . . . .

  Carlisle was standing next to the body
when the first police officer arrived on
the scene. He told the officer that his
friend had been shot by a black male who
got out of a car. Carlisle, however, did
not identify the shooter by name. He then
went to the police station at 103rd where
he apparently stayed overnight and was
interviewed by detectives investigating
the case. Sometime the next day . . . he
was interviewed by an assistant state’s
attorney named David Studenroth. After
the interview, Carlisle signed a
three-page statement . . . [identifying]
Carl Dixon as the black male who shot
Patrick Marshall. Specifically, the
statement said that Dixon got out of the
green car and asked Marshall, "where’s my
shit at." Marshall responded, "I’ll get
it to you, man," and Dixon then shot
Marshall.
  Dixon was indicted for first degree
murder. He hired attorney William H. Wise
(hereinafter, defense counsel) to defend
him. Many months before trial, defense
counsel learned that Carlisle--the only
eyewitness against his client--was
prepared to recant the May 12th statement
he gave to the police. On January 26,
1991, Carlisle visited defense counsel’s
office and gave him an affidavit, in
which Carlisle stated that "Carl Dixon
was not the person [who] pulled the
trigger of [the] gun that killed" Patrick
Marshall.

  Although defense counsel had a signed
statement, he took the extra step of
having Carlisle repeat his recantation in
front of a court reporter. Two weeks
later, on February 9, 1991, Carlisle
returned to defense counsel’s office and
gave a court-reported statement. He again
asserted that Dixon was not the shooter
and further explained that he only signed
the statement implicating Dixon because
he had been held at the police station
for 14 hours and was told he could go
home if he signed it. Before trial,
defense counsel assured his client that,
because the State’s main witness had
recanted, there was no need to prepare a
defense and no need for Dixon to testify.

Dixon, 2000 WL 640885, at *1 (footnote
omitted).

  When the trial began on October 30,
1991, Dixon waived his right to a jury
and a two-day bench trial took place.
During trial, the state focused on an
incident which it believed provided the
motive for the murder. Ashadu McPherson,
the victim’s cousin, testified that on
the evening of May 11th he was with
Patrick Marshall, Dixon, and a group of
other men. Dixon was showing off his new
black 9 millimeter gun. When the gun was
handed to Marshall, he ran away with it.
Dixon then ran into his house and came
out with a shotgun, which he put in the
trunk of his car (a Monte Carlo with a
red panel, according to one witness).

  Dixon drove around looking for Marshall
for several hours, accompanied by
McPherson, Charles Jemison, and another
man. Dixon said that if he did not get
his gun back he was going to have to do
something to Marshall. McPherson’s and
Jemison’s testimony about the ride was
similar in most respects but conflicted
on one key point: whether Dixon had a .25
caliber handgun with him (the police had
located .25 caliber shell casings at the
scene). McPherson testified that, at one
point in the evening, he saw Dixon
sitting in the driver’s seat with a small
handgun in his lap, which McPherson
believed was either a .22 or .25 caliber
handgun. Jemison, on the other hand, had
been sitting in the front seat and
testified that he did not see Dixon with
a handgun.

  The State’s only direct evidence that
Dixon killed the victim was Carlisle’s
May 12th statement. When called by the
State, Carlisle testified that he did not
know who had shot the victim. When
specifically asked whether Carl Dixon was
the man, Carlisle invoked his Fifth
Amendment privilege against
self-incrimination. When the trial judge
ordered him to answer the question,
Carlisle said that Dixon was not the man
who shot Patrick Marshall.

  The State next attempted to question
Carlisle about the May 12th statement
that he signed at the police station.
Carlisle admitted that he had been at the
police station and had been interviewed
by assistant state’s attorney Studenroth.
When asked whether he signed the
statement, Carlisle again asserted his
Fifth Amendment privilege. The trial
judge allowed him to invoke it and
prevented any further questioning about
the statement. Counsel declined to
cross-examine Carlisle but asked that the
writ of habeas corpus be carried over for
the next day of trial in case he wanted
to use Carlisle as a rebuttal witness.

  On the second day of trial, the state
called Studenroth, who testified that he
interviewed Carlisle on May 12th and that
Carlisle signed and initialed each page
of the three- page statement Studenroth
had written. When the State asked about
the contents of the statement, the trial
judge sustained defense counsel’s
objection and asked the State to tell him
"under what theory of exception to the
hearsay rule you are attempting to get
this hearsay document into evidence." The
State indicated that it was relying on
Section 115-10.1 of the Illinois Code of
Criminal Procedure.

  Section 115-10.1 is an Illinois statute
which allows prosecutors to introduce
prior inconsistent statements as
substantive evidence rather than solely
for impeachment purposes. 725 Ill. Comp.
Stat. 5/115-10.1./1 "Passed by the
Illinois legislature in 1984, Section
115-10.1 was an attempt to solve the
problem of the ’turncoat witness,’ who
makes a statement to the police
implicating the defendant but then comes
to trial and recants." Dixon, 2000 WL
640885, at *8. Therefore, "even though
the eyewitness recants at trial, the fact
finder may nonetheless rely on the
witness’s earlier statement in order to
convict the defendant." Id. This was a
substantial change from the previous
Illinois law, under which a prior
inconsistent statement could only be used
for impeachment. See, e.g., People v.
Bryant, 447 N.E.2d 301, 305 (Ill. 1983)
("This court has repeatedly disapproved
prosecutorial efforts to impart
substantive character to prior
inconsistent statements under the guise
of impeachment."). Section 115-10.1 sets
forth three foundational requirements
that had to be met in order to admit
Carlisle’s prior inconsistent statement
as substantive evidence: 1) the prior
statement had to be inconsistent with the
testimony at trial; 2) the witness had to
be subject to cross-examination
concerning the statement; and 3) the
statement had to describe an event of
which the witness had personal knowledge
and had to be signed by the witness.

  After the State indicated that it was
relying on section 115-10.1 to admit the
May 12th statement, the trial judge asked
how the statement was inconsistent with
Carlisle’s in-court testimony. The State
explained that, in court, Carlisle said
that Dixon was not the shooter but his
May 12th statement indicated that Dixon
was the shooter. Counsel then objected,
contending that the statement should not
be considered as substantive evidence.
Rather than arguing that one of the three
statutory requirements had not been met,
however, defense counsel relied upon an
Illinois Supreme Court rule that was
irrelevant and a case which predated the
passage of section 115-10.1.

  The trial judge interrupted defense
counsel’s arguments and told him that he
was "still going to have to deal with
115-10.1." Counsel continued to argue
that the State could not use the
statement substantively because "[i]t’s
been the law in Illinois and still is."
The trial judge again rejected his
arguments, none of which addressed the
statutory requirements, and ruled that
the statement could come into evidence.
Studenroth then resumed his testimony and
explained that Carlisle identified Dixon
as the man who got out of the car and
shot Marshall. After minor stipulations,
the State rested. The defense did not
recall Carlisle as a rebuttal witness.
Instead, the defense rested without
putting on any evidence. After closing
arguments, the trial judge found Dixon
guilty of first degree murder.

  Defense counsel moved for a new trial.
By this time, counsel apparently had been
made aware of section 115-10.1, because
he argued that the three foundational
requirements for admitting a prior
inconsistent statement under that section
had not been met. In particular, he
argued that Carlisle’s invocation of the
Fifth Amendment on direct rendered him
unavailable for cross-examination. The
State responded by noting that defense
counsel never even attempted to question
Carlisle. The trial judge denied the
motion and sentenced Dixon to twenty
years imprisonment.

  On direct appeal, but still represented
by the same counsel, Dixon alleged a
number of errors, including that the May
12th statement should not have been
admitted as substantive evidence because
Carlisle was not available for
cross-examination. The Illinois Appellate
Court rejected this argument:
"[d]efendant cannot claim a lack of
opportunity to cross-examine Carlisle
when he did not even attempt to call
[him] to the stand." People v. Dixon, 628
N.E.2d 399, 404 (Ill. App. Ct. 1993). The
court concluded that "defense counsel
decided not to cross-examine [Carlisle]
presumably because his testimony was
favorable to defendant." Id. at 403. The
appellate court also found that "[a]s
defendant had the opportunity to cross-
examine Carlisle, his right to confront
witnesses was not violated." Id. at 404.

  After exhausting his options on direct
appeal,/2 Dixon engaged new defense
counsel. On May 5, 1995, Dixon filed a
two-count state court petition for
post-conviction relief. This petition set
forth the allegation now alleged in
Dixon’s habeas petition: that defense
counsel "did not know or understand
[section 115-10.1] and assumed throughout
the trial that [Carlisle’s] out-of-court
statement had no substantive force and
that the State had, therefore, completely
failed to make its case." Dixon’s
Petition for Post-Conviction Relief at 1.
In Count I, Dixon argued that defense
counsel was ineffective because he did
not present a defense including, inter
alia, the two statements Carlisle gave at
defense counsel’s office (the affidavit
and the court-reported statement). In
Count II, Dixon argued that counsel was
ineffective for not cross-examining
Carlisle. Both counts alleged that
counsel acted as he did because he was
not aware of section 115-10.1.

  Dixon’s post-conviction petition was
dismissed as "frivolous and/or patently
without merit" in a three-page order
dated June 23, 1995. People v. Dixon, No.
90-CR-14327, slip op. at 1 (Cook County
Circuit Court June 23, 1995). The court
concluded, with respect to Count I, that
defense counsel could not be considered
ineffective for not presenting the
affidavit and court-reported statement
because they were inadmissable hearsay.
As to Count II, the court noted that
"[t]he inquiry into the competency of
counsel will not generally extend to the
exercise of judgment, discretion, trial
tactics or strategy" and found that
defense counsel’s decision not to cross-
examine Carlisle was reasonable "because
his testimony was favorable to
defendant." Id. at 2-3.

  The Illinois Appellate Court affirmed
the trial court’s dismissal of the
post-conviction petition. People v.
Dixon, No. 1-95-2761, slip op. (Ill. App.
Ct. May 30, 1996). In addressing Count I,
the Illinois Appellate Court disagreed
with the trial court’s determination that
Carlisle’s recantations were inadmissable
hearsay, finding that they could have
been introduced to impeach the May 12th
statement, pursuant to section 115-10.1.
Id. slip op. at 12. The Illinois
Appellate Court found, however, that
Dixon was not prejudiced by counsel’s
failure to present the statements because
"the trial court itself witnessed
Carlisle recant" and thus these earlier
recantations would not have changed the
outcome of the trial. Id. at 14. As to
Count II, the appellate court first cited
a series of Illinois cases for the
proposition that deciding whether to
cross-examine a witness "is generally not
an appropriate basis for a claim of
ineffective assistance of counsel." Id.
at 16. It then concluded that defense
counsel "no doubt realized that
Carlisle’s direct testimony was extremely
damaging to the State and that he would
not have benefitted his client by delving
into a matter that may have raised the
question of Carlisle’s credibility." Id.
The court reasoned that this decision was
"perfectly sound trial strategy" and thus
found no error in the trial court’s
dismissal of Count II of the petition.
Id. at 16-17. On October 2, 1996, the
Illinois Supreme Court denied Dixon’s
petition for leave to appeal.

  Dixon subsequently filed a federal
habeas corpus petition in the United
States District Court for the Northern
District of Illinois. That petition
alleged that: 1) Dixon was denied the
effective assistance of counsel when his
defense counsel’s ignorance of the
governing law resulted in the admission
of the sole piece of evidence relied upon
to support Dixon’s conviction; 2) Dixon
was denied the effective assistance of
counsel when defense counsel’s ignorance
of the law led him to decline to present
a defense; and 3) the only possible way
of justifying defense counsel’s actions
was to conclude that Carlisle’s May 12
statement was, in fact, inadmissible
because Carlisle’s unavailability
forconfrontation had already been
demonstrated. See Petition for Writ of
Habeas Corpus at 14, 17, 19. The district
court granted Dixon’s petition on the
first two grounds. See Dixon, 2000 WL
640885, at *1. Respondent filed a timely
notice of appeal and now asks us to
reverse the grant of the petition.

II.   Analysis

  Our review of Dixon’s petition for
habeas corpus is governed by the
Antiterrorism and Effective Death Penalty
Act of 1996, ("AEDPA"), 28 U.S.C. sec.
2254, because Dixon filed his petition
for habeas relief after the effective
date of that Act. AEDPA provides that
habeas relief may be granted if a state
court’s adjudication of a matter
"resulted in a decision that was contrary
to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C.
sec. 2254 (d)(1). A state court decision
is "contrary to" Supreme Court precedent
"if the state court arrives at a
conclusion opposite to that reached by
[the Supreme] Court on a question of law"
or "if the state court confronts facts
that are materially indistinguishable
from a relevant Supreme Court precedent
and arrives at a result opposite to [that
reached by the Supreme Court]." Williams
v. Taylor, 529 U.S. 362, 405, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000)./3 An
"unreasonable application" of Supreme
Court precedent occurs when "the state
court identifies the correct governing
legal rule . . . but unreasonably applies
it to the facts of the particular state
prisoner’s case" or "if the state court
either unreasonably extends a legal
principle from [the Court’s] precedent to
a new context where it should not apply
or unreasonably refuses to extend that
principle to a new context where it
should apply." Id. at 407; see also
Jackson v. Miller, No. 98-3736 2001 WL
884814 (7th Cir. Aug. 8, 2001). We review
a state court decision de novo to
determine whether it was "contrary to"
Supreme Court precedent; however, we
defer to reasonable state court
decisions. See Ouska v. Cahill-Masching,
246 F.3d 1036, 1044 (7th Cir. 2001).
Further, in reviewing a district court’s
grant of a petition for habeas relief, we
review the district court’s
determinations de novo and its factual
determinations for clear error. See Denny
v. Gudmanson, 252 F.3d 896, 900 (7th Cir.
2001). In order to issue a writ of habeas
corpus, the state court decision must be
both "incorrect and unreasonable."
Washington v. Smith, 219 F.3d 620, 628
(7th Cir. 2000).

  Dixon’s petition alleges that the
Illinois Appellate Court’s determination
that he was not deprived the effective
assistance of counsel in his state court
murder trial was unreasonable in light of
Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The rule set forth in Strickland is
"clearly established Federal law," see
Williams, 529 U.S. at 390; Washington,
219 F.3d at 628, and provides that a
petitioner claiming the ineffective
assistance of counsel must establish
that: 1) "counsel’s representation fell
below an objective standard of
reasonableness" and 2) "the deficient
performance prejudiced the defense."
Strickland, 466 U.S. at 687-88. Dixon did
not raise this claim on direct appeal,
and he was not required to. People v.
Gaines, 473 N.E.2d 868, 875 (1984) ("It
would be unreasonable to expect appellate
counsel to convincingly raise and argue
his own incompetency.")./4 We must now
determine whether the Illinois Appellate
Court, in reviewing Dixon’s post-
conviction petition, unreasonably
determined that Dixon’s defense counsel
was not ineffective for counsel’s failure
to present impeachment evidence (i.e.,
Carlisle’s recantations) or to cross-
examine Carlisle after Studenroth’s
testimony about the May 12th
statement./5 Only "[a] clear error in
applying Strickland’s standard would
support a writ of habeas corpus." Holman
v. Gilmore, 126 F.3d 876, 882 (7th Cir.
1997). We address each of Strickland’s
two prongs in turn.

A. Whether Counsel’s Representation
Fell Below an Objective Standard of Reasonableness

  The Illinois Appellate Court found that
it was "perfectly sound trial strategy"
for counsel to decide not to cross-
examine Carlisle, though it did not
determine whether counsel’s failure to
present impeachment evidence was
unreasonable (it found that, even if it
was unreasonable, Dixon was not
prejudiced). We review both issues de
novo, but the former with "a grant of
deference to any reasonable state court
decision." Schaff v. Snyder, 190 F.3d
513, 522 (7th Cir. 1999). The Sixth
Amendment requires "reasonably effective
assistance," Strickland, 466 U.S. at 687,
the purpose of which is "to ensure that
criminal defendants receive a fair
trial." Id. at 689. Determining whether
counsel performed reasonably is
undoubtedly a deferential inquiry. A
reviewing court "must indulge a strong
presumption that counsel’s conduct falls
within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption
that, under the circumstances, the
challenged action ’might be considered
sound trial strategy.’" Id. Dixon
attempts to overcome this presumption by
arguing that defense counsel was not
aware of section 115-10.1--the Illinois
statute permitting prior inconsistent
statements to come in as substantive
evidence once certain requirements are
met--and therefore his actions at trial
were inherently constitutionally
deficient. See Strickland, 466 U.S. at
691 (noting that "counsel has a duty to
make reasonable investigations").

  After reviewing the record, the district
court determined that counsel could not
have been aware of section 115.10-1 at
the time of trial. The court summarized
the events as follows:

  After the State indicated that it was
relying on sec. 115-10.1, the trial judge
asked how the prior statement was
inconsistent with the in-court testimony.
The State explained that Carlisle on
direct said Dixon was not the shooter and
in the statement he said that he was.
Defense counsel then interrupted and
argued that the statement should not be
considered as substantive evidence.
Rather than arguing that one of the three
statutory requirements had not been met,
as you might expect him to do, counsel
instead relied upon a separate Illinois
Supreme Court rule and case--neither of
which had any direct relevance to sec.
115-10.1. Counsel first said that the
"controlling" rule in this case was
Illinois Supreme Court Rule 238, which
discusses under what circumstances a
party may attempt to cross-examine its
own witness. The trial judge interrupted
this argument and told defense counsel
that he should address the statute cited
by the State: "First, before you get into
[Rule 238], you’re still going to have to
deal with 115-10.1."

  Rather than heeding the trial judge’s
directive, defense counsel then cited to
an Illinois case, People v. Bryant, for
the proposition that a prosecutor may not
try to "impart substantive character to
prior inconsistent statements under the
guise of impeachment." He explained that
there was "no question" that the State
was trying to introduce the May 12th
statement under the "guise of"
impeachment because the State had no
other way to introduce direct evidence
against the defendant. Defense counsel
insisted that the State could not use the
statement substantively because "[i]t’s
been the law in Illinois and still is."

  The trial judge rejected these arguments
and ruled that the statement could come
into evidence. [Yet counsel continued to]
ask[ ] that the State explain how it was
using the prior statement.

Dixon, 2000 WL 640885, at *4. The
district court concluded that counsel
must not have been aware of the "new"
statute and was instead operating under
the assumption that the statement could
only come in for impeachment purposes, as
under the prior law. The court also found
that there was no reason for counsel not
to have been familiar with the statute:
it had been in effect for seven years
prior to trial and counsel knew more than
eight months before trial that the sole
eyewitness had recanted (thus, the court
reasoned, he should have investigated the
law concerning prior inconsistent
statements).

  Yet, as the district court noted,
Strickland focuses on whether an
attorney’s performance was deficient, not
on whether he was perfectly knowledgeable
about the law. Dixon, 2000 WL 640885, at
*10-11. Indeed, a defendant must
"identify the acts or omissions of
counsel that are alleged not to have been
the result of reasonable professional
judgment." Strickland, 466 U.S. at 690.
The district court thus examined Dixon’s
arguments--that counsel should have
cross-examined Carlisle and that he
should have introduced the recantations
into evidence--as if Dixon was making the
broader assertion that "his counsel’s
ignorance caused him to engage in a
fundamentally flawed trial strategy."
Dixon, 2000 WL 640885, at *11. The court
found that counsel did engage in such a
strategy--indeed, counsel did not even
put on a defense--thus satisfying
Strickland’s first prong. Id. at *10-13.

  Subsequent to the district court’s
decision, however, the Supreme Court
clarified the role of federal courts
conducting habeas review. See Williams,
529 U.S. at 405. Under the provisions of
AEDPA, a federal court may not "issue the
habeas writ unless the state court was
wrong as a matter of law or unreasonable
in its application of law to a given
case." Id. at 385. Thus we must examine
whether the Illinois Appellate Court’s
determination that counsel’s performance
was not deficient--finding that it was
"perfectly sound trial strategy" for
counsel to decide not to cross-examine
Carlisle--was an unreasonable application
of Strickland. See 28 U.S.C. sec. 2254.
Because the Illinois court did not decide
whether counsel’s failure to present
rebuttal evidence fell below the required
level of performance, we may consider
that issue without any deference to the
state court’s conclusions.

  The Illinois Appellate Court’s opinion
stated that deciding whether or not to
cross-examine a witness "is generally not
an appropriate basis for a claim of
ineffective assistance of counsel."
People v. Dixon, No. 1-95-2761, slip op.
at 16 (Ill. App. Ct. May 30, 1996).
Notwithstanding the fact that Dixon
argued in his petition for post-
conviction relief that his defense
counsel was not aware of section 115-10.1
and "assumed through the trial that the
out-of-court statement had no substantive
force," the Illinois court did not even
consider this argument. It instead
reasoned that defense counsel "no doubt
realized that Carlisle’s direct testimony
was extremely damaging to the State and
that he would not have benefitted his
client by delving into a matter that may
have raised the question of Carlisle’s
credibility." Id. The court concluded
that this was "perfectly sound trial
strategy." Id.

  It seems very likely that the district
court was correct in finding that counsel
was not aware of section 115-10.1.
Indeed, the appellant has conceded that
counsel was unaware of it. If counsel was
unaware of the statute, then his decision
not to cross-examine Carlisle cannot be
accorded the same presumption of
reasonableness as is accorded most
strategic decisions because it was not
based on strategy but rather on a
"startling ignorance of the law."
Kimmelman v. Morrison, 477 U.S. 365, 385,
106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).
While it might have been reasonable for
counsel to have acted as he did if the
law had not changed, the law had in fact
changed drastically. The Illinois
Appellate Court’s opinion did not dismiss
the possibility that counsel was not
aware of the statute, yet it nonetheless
analyzed counsel’s actions as if the only
issue was whether counsel should have
cross-examined a witness. This analysis
ignored the fact that counsel’s decision
not to cross-examine Carlisle would not
have been reasonable if counsel was
completely unaware of the legal effects
of his failure to cross-examine Carlisle.
If counsel had been aware of section 115-
10.1 he would have known that, to prevent
the May 12th statement from coming in as
substantive evidence, Carlisle had to be
shown to be unavailable for cross-
examination. The only way to do this was
to attempt to cross examine Carlisle so
that he could take the Fifth, as he had
done consistently on direct
examination./6

  We thus determine that, assuming counsel
was unaware of the statute, it was
unreasonable under Supreme Court
precedent for the Illinois Appellate
Court to conclude that the decision not
to cross-examine was a decision that
could be considered "sound trial
strategy." Even if counsel was aware of
the statute (and all indications are that
he was not), it would still have been an
unreasonable trial strategy to decide not
to attempt to render the sole piece of
direct evidence against your client
inadmissable, even if you were not
certain you would be successful. Indeed,
it would have been even more unreasonable
for counsel to have made the decision not
to cross Carlisle if he had been aware of
the statute and equally unreasonable for
the appellate court to have found it to
be a reasonable strategic decision.
  As for defense counsel’s decision not to
present Carlisle’s previous recantations,
the Illinois courts did not rule on this
issue thus we may determine, de novo,
whether counsel’s actions fell below the
permissible level of performance. We find
that there was no rational explanation
for why counsel did not introduce
Carlisle’s two recantations as evidence.
There was absolutely no risk in doing so.
It seems clear that defense counsel did
not think he had to put on a defense
because he was certain that the May 12th
statement could not come in as
substantive evidence.

  We thus find that the Illinois Appellate
Court unreasonably concluded that counsel
was not ineffective for deciding not to
cross-examine Carlisle; we also find that
it was unreasonable for counsel not to
introduce the statements. Yet Strickland
requires us to determine whether the
defendant was prejudiced by counsel’s
deficient performance. We turn to that
inquiry now.

B. Whether Counsel’s Deficient
Performance Prejudiced the Defense
  The Illinois Appellate Court determined
that, even if Dixon’s counsel was
deficient, Dixon was not prejudiced. We
review this determination as we did the
first prong: to determine whether the
state court decision was contradictory to
or unreasonable in light of Strickland.
"The defendant must show that there is a
reasonable probability that, but for
counsel’s unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome." Strickland,
466 U.S. 694. If "there is a reasonable
probability that, absent the errors, the
factfinder would have had a reasonable
doubt respecting guilt," then we must
find prejudice. Id. at 695. To determine
"whether . . . the result of the
particular proceeding is unreliable . . .
[we] consider the totality of the
evidence . . . . [A] verdict or
conclusion only weakly supported by the
record is more likely to have been
affected by errors than one with
overwhelming record support." Id.

  Dixon was convicted on a record so weak
that the trial judge spoke directly to
the issue:

"[A]bsent Carlisle’s impeachment there is
no evidence connecting [Dixon] with the
acts which led to the death of Mr.
Marshall. There is no direct evidence.
There is circumstantial evidence. But
that circumstantial evidence . . . just
goes to [showing] the existence [of]
motive, and the fact that Mr. Dixon was
looking for the deceased after the events
in that school yard.

Report of Trial Proceedings at B33 (Oct.
31, 1991). After determining that
Illinois law permitted Carlisle’s May
12th statement to come in as substantive
evidence, the court proceeded to sentence
the defendant with the following
analysis: "[the May 12th statement]
stands unimpeached other than the fact
that Mr. Carlisle is a convicted felon
[thus] taken along with the other
evidence in this case . . . the court is
going to enter a finding of guilty." Id.
at B35.

  Given our determination that counsel was
deficient for not cross-examining
Carlisle (to attempt to establish his
unavailability) and for introducing
Carlisle’s pre-trial recantations, we
agree with the district court that there
is a reasonable probability that the
outcome would have been different had
counsel not been deficient. First of all,
notwithstanding the appellant’s
protestations, it is reasonably likely
that had Carlisle been cross-examined by
Dixon’s defense counsel, Carlisle would
have invoked his Fifth Amendment
privilege. He did so on direct
examination on the advice of his own
counsel, and, during the course of
Dixon’s appeal, Carlisle provided an
affidavit stating that he would have
invoked the privilege on cross (of
course, counsel did not have the benefit
of this affidavit at trial). Even if
Carlisle had not taken the Fifth, or if
the trial judge had not permitted him to
do so, Carlisle had already provided
Dixon’s defense counsel with two signed
statements indicating why the May 12th
statement was not true, and he would
likely have explained this again on the
stand.

  Further, even if Carlisle had not taken
the Fifth on direct, or had not explained
why the May 12th statement was false,
defense counsel still had the ability to
impeach the May 12th statement by
introducing Carlisle’s pre-trial
recantations. There is a very reasonable
probability that the judge would not have
entered a finding of guilty had the
statement--the sole direct evidence of
guilt--been impeached. It is true that
the judge did hear Carlisle’s trial
testimony denying many of the facts
contained in the May 12th statement;
however, counsel did not explain the
reason for Carlisle’s inconsistency and
the judge drew a logical conclusion: that
Carlisle’s recantation at trial was not
credible. See Washington, 219 F.3d at 634
(noting that the credibility of the
defense’s sole witness "was impaired
because of his prior convictions"). Had
the judge known that Carlisle’s
statement--indicating that he saw Dixon
kill the victim--was signed after
Carlisle had been detained by the police
for fourteen hours, and after he was told
that he would be charged with the murder
if he did not sign the statement, the
recantation might have seemed more
credible. Carlisle had already given two
signed recantationsprior to trial, one of
which was court reported, explaining the
recantation. Impeaching the May 12th
statement with Carlisle’s later
recantations would likely have added
"substance and credibility" to Carlisle’s
trial testimony, id., not to mention that
an in-court statement is typically
entitled to greater weight than an out-
of-court statement such as the May 12th
statement. Thus, if Carlisle’s statement
had not come in as substantive evidence,
there would have been no direct evidence-
-and only very slim circumstantial
evidence--connecting Dixon to the murder.

  We thus find that there is a reasonable
doubt that, absent defense counsel’s
errors, the trial judge would have had a
reasonable doubt respecting Dixon’s
guilt. See Strickland, 466 U.S. at 695.

C.   Confrontation Clause

  As we have already determined that the
petition should be granted under Dixon’s
ineffective assistance of counsel claim,
we need not analyze the claim that
Carlisle was unavailable for
confrontation.

III.   Conclusion

  For the above stated reasons, we find
that the Illinois Court of Appeals’
determination that Carl Dixon was not
deprived the effective assistance of
counsel was the result of an unreasonable
application of clearly established
Supreme Court precedent. We therefore
AFFIRM the decision of the district court
to grant Dixon’s petition for a writ of
habeas corpus. Petitioner is ordered to
be released from custody unless the State
of Illinois grants him a new trial within
120 days from the issuance of this
opinion.

FOOTNOTES

/1 At the time of trial the statute was Ill. Rev.
Stat. 1989, ch. 38, para. 115-10.1.

/2 Dixon filed a petition for leave to appeal with
the Illinois Supreme Court, which was denied on
April 6, 1994. On November 7, 1994, the United
States Supreme Court denied his petition for
certiorari.

/3 The district court’s opinion was issued on March
29, 2000, prior to the April 18th issuance of the
Court’s decision in Williams.

/4 Indeed, the Illinois Appellate Court recognized,
in its opinion denying post-conviction relief,
that "the issue of a trial counsel’s competency
is [not waived] for purposes of post-conviction
relief . . . when defendant’s trial counsel also
represents that defendant on direct appeal."
People v. Dixon, No. 1-95-2761, slip op. at 5 n.2
(Ill. App. Ct. May 30, 1996) (citing, inter alia,
People v. Sanchez, 662 N.E.2d 1199, 1207 (Ill.
1986)).

/5 Dixon’s habeas petition frames the issues slight-
ly differently than how they were presented in
his petition for post-conviction relief but for
ease of review of the Illinois Appellate Court’s
opinion, we review the issues in the context
presented there.

/6 We address appellant’s argument that Carlisle
would not have invoked the Fifth Amendment, and
thus that the statement would have come in re-
gardless, infra.
