200 F.3d 995 (7th Cir. 2000)
Ramiro Hernandez, Petitioner-Appellant,v.Roger D. Cowan, Warden, Respondent-Appellee.
Nos. 99-1082 & 99-2613
In the United States Court of Appeals  For the Seventh Circuit
Argued December 3, 1999Decided January 3, 2000

Appeals from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 97-C-1296--Ruben Castillo, Judge.
Before Posner, Chief Judge, and Coffey and Manion,  Circuit Judge.
Posner, Chief Judge.


1
In 1979, Ramiro Hernandez  was tried together with Daniel Santisteven in an  Illinois state court for murder, was convicted by  the jury, and was sentenced to fifty years in  prison, where he remains. After his conviction  was affirmed and his request for state  postconviction relief denied, he sought federal  habeas corpus, which was also denied,  precipitating this appeal. He had failed to seek  discretionary review from the Supreme Court of  Illinois of either of the two state court  appellate decisions in his case; and, invoking  O'Sullivan v. Boerckel, 119 S. Ct. 1728 (1999),  involving direct review of convictions, and White  v. Godinez, 192 F.3d 607 (7th Cir. 1999) (per  curiam), extending O'Sullivan to review of  denials of postconviction relief, the state  argues that this failure forfeits his right to  obtain relief by means of a federal habeas corpus  proceeding. The petitioner replies that the state  waived the argument by failing to make it in the  district court. To this the state responds that  O'Sullivan and White were decided after the  district court proceedings and overruled the  position of this court, which had been that  failure to seek discretionary review from the  state's highest court is not a procedural default  barring federal habeas corpus.


2
In short, the petitioner is arguing waiver of  waiver, now a well-established doctrine, e.g., In  re Brand Name Prescription Drugs Antitrust  Litigation, 186 F.3d 781, 790 (7th Cir. 1999);  United States v. Woods, 148 F.3d 843, 849 n. 1  (7th Cir. 1998); Atkins v. New York City, 143  F.3d 100, 102-03 (2d Cir. 1998); United States v.  Reider, 103 F.3d 99, 103 n. 1 (10th Cir. 1996),  that we applied against the State of Illinois in  another habeas corpus case, Fagan v. Washington,  942 F.2d 1155, 1157 (7th Cir. 1991), while the  state is asking that its waiver be excused on the  ground that it would have been futile to argue  waiver at a time when the law of this circuit was  contrary; it would just have irritated the  judges. This argument cannot be right. For years  the State of Illinois had been arguing in the  district courts of this circuit and in this court  that failure to seek discretionary review by the  state's highest court forfeited a state  prisoner's right to federal habeas corpus. E.g.,  Jenkins v. Nelson, 157 F.3d 485, 497 (7th Cir.  1998); United States ex rel. Gonzalez v.  Thornton, No. 97 C 5585, 1999 WL 92902, at *3  (N.D. Ill. Feb. 17, 1999). We had never  criticized the state for seeking to preserve the  issue for possible review by the U.S. Supreme  Court. O'Sullivan had originated in this circuit,  and in that case the state had argued the waiver  point in both the district court and this court,  contemporaneously with the present litigation.  The state's failure to argue or at least reserve  the point in the present case, especially when  the existence of a circuit split made the  possibility of Supreme Court correction more than  merely theoretical, is inexplicable; and a  foreseeable change in law is (if it comes to  pass) at best a weak ground for relieving a party  of the consequences of its waiver. Carr v.  O'Leary, 167 F.3d 1124, 1126-27 (7th Cir. 1999).  So we shall proceed to the merits.


3
The principal issue is whether Hernandez was  denied effective assistance of counsel at his  murder trial. The essential facts are as follows,  and are uncontested. Jorge Orosco was killed on a  street in Chicago in a hail of bullets at about 1  a.m. Six bullets were removed from his body, and  three were discovered to have come from a  revolver owned by Santisteven; the revolver that  fired the other three bullets has never been  found. Several weeks later the police questioned  a young man named Angel Cruz, and on the basis of  the questioning arrested Santisteven for the  murder two years earlier of Gilbert Santiago. A  search of Santisteven's home turned up his  revolver along with a number of other firearms.  On the same day, police arrested Hernandez for  Orosco's murder, but a search of Hernandez's home  yielded no incriminating evidence.


4
Santisteven, arrested as we have said for the  murder of Santiago (for which, however, he has  never been tried, even though he was identified  in a lineup as Santiago's killer), confessed to  involvement in Orosco's murder as well and was  duly indicted, along with Hernandez, for that  murder. Santisteven moved before trial to  suppress his confession. At the suppression  hearing that ensued he testified that the police  had said they would help him in a variety of ways  (including not pressing any charges of illegal  possession of guns) if he implicated Hernandez in  the murder, and that he had responded to their  offer of help by stating that Hernandez had  killed Orosco and that the latter was already  dead when he, Santisteven, shot him. (Yet the  bullets that matched Santisteven's gun were  removed from the victim's head, and the bullets  of unknown providence from his trunk.) Not only  was Santisteven never prosecuted for Santiago's  murder; he was never prosecuted for illegal  possession of the arsenal of firearms taken from  his home during the search. Although convicted  along with Hernandez at their joint trial of the  murder of Orosco, Santisteven was sentenced to  only 25 years, half the length of Hernandez's  sentence, and he has since been released.


5
Hernandez's lawyer moved to sever the trials of  the two defendants on the ground that  Santisteven's confession implicated Hernandez as  well. The judge denied the motion on the ground  that all references in the confession to  Hernandez would be excised in the version read to  the jury, in conformity with the rule of Bruton  v. United States, 391 U.S. 123 (1968); and this  was done.


6
The only evidence presented in the government's  case-in-chief of Hernandez's guilt was testimony  by Cruz, who knew Hernandez, that he had heard  the shots that did in Orosco and had seen two men  running toward him (Cruz), one of whom was  Hernandez; the other he couldn't identify. There  was nothing in Cruz's testimony to indicate  whether the two men were running because they  were afraid (Cruz himself was running, for just  that reason, when he saw them) or because they  were the shooters.


7
Hernandez moved for acquittal at the close of  the government's case, but this was denied and he  argues that the denial violated his due process  right not to be convicted on evidence  insufficient to persuade a rational jury of guilt  beyond a reasonable doubt. E.g., In re Winship,  397 U.S. 358, 364 (1970). No doubt the denial was  erroneous as a matter of state law, for no  reasonable jury could have convicted Hernandez on  Cruz's evidence alone; but we cannot find any  basis in federal constitutional law as laid down  by the U.S. Supreme Court (the applicable  criterion in a federal habeas corpus proceeding,  Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.  1999)) for the proposition that due process is  violated by the denial of a motion to acquit in  the middle of the case. The proposition is in any  event inconsistent with the settled rule that in  deciding whether a defendant is guilty the jury  can consider all the evidence, regardless of  which side introduced it, and so can rely on  evidence presented by the defendant, which he may  have erroneously believed exculpatory. United  States v. Guerrero, 114 F.3d 332, 339 (1st Cir.  1997); United States v. Ruiz, 105 F.3d 1492, 1495  n. 1 (1st Cir. 1997); United States v. Lopez, 625  F.2d 889, 897 (9th Cir. 1980); 1 Wayne R. LaFave  & Austin W. Scott, Jr., Substantive Criminal Law  sec. 1.8(h), p. 83 (1986).


8
After the motion to acquit was denied, the  defense case began and Santisteven took the stand  and testified, consistently with his confession,  that he had shot Orosco only after Hernandez had  killed him. But he added to the statements in the  confession that he had done so because Hernandez  believed that Orosco was a member of a rival  gang. Hernandez then testified that he had been  at home asleep when Orosco was murdered. He also  denied a gang affiliation. In closing argument,  the prosecutor adopted Santisteven's version of  the facts, and he also told the jury that he was  "not intimidated by the punks out in the gallery.  . . . I'm not intimidated by the Imperial  Gangsters [Hernandez's alleged gang], nor am I  intimidated by the Latin Kings, and by God I hope  the jury isn't intimidated by it." (The "punks"  in the gallery were actually the family and  friends of Orosco, rather than of either  defendant.) The prosecutor also told the jury  that Santisteven's confession had been "presented  to you in partial form. . . . [F]or legal reasons  you could not hear the whole story." Although Hernandez's trial lawyer moved for  severance, he did so on the wrong ground; and  while a mistake is not the same thing as  malpractice, it is plain that the lawyer's  failure to move on the right ground failed to  come up to a minimum standard of professional  competence. For the lawyer had inexcusably failed  to attend the suppression hearing (or to read the  transcript of it either at all or with  comprehension), at which he would have learned  that the defendants had antagonistic defenses and  that if Santisteven testified at Hernandez's  trial he would fill the void in the government's  case against Hernandez. The district judge  rightly concluded both that the lawyer had indeed  fallen below the threshold of competent  representation, see Williams v. Washington, 59  F.3d 673, 682 (7th Cir. 1995); United States v.  Zackson, 6 F.3d 911, 919-20 (2d Cir. 1993);  United States v. Yizar, 956 F.2d 230 (11th Cir.  1992); cf. Hall v. Washington, 106 F.3d 742, 749-  50 (7th Cir. 1997); Kenley v. Armontrout, 937  F.2d 1298, 1304-08 (8th Cir. 1991); compare  United States v. Jackson, 33 F.3d 866, 875-76  (7th Cir. 1994), and that the state trial judge,  if properly advised of the situation, would have  severed the trial of the two defendants. See  People v. Bean, 485 N.E.2d 349, 355 (Ill. 1985);  People v. Rodriguez, 680 N.E.2d 757, 766 (Ill.  App. 1997); see also Williams v. Washington,  supra, 59 F.3d at 683 (discussing Illinois  severance law). Not because severance is  automatic under either Illinois or federal law,  Zafiro v. United States, 506 U.S. 534, 539  (1993), though only the former is relevant to  this issue if codefendants have antagonistic  defenses; but because when the nature of the  antagonism is such as to make one defendant the  accuser of the other, so that the other has to  defend not only against the state's evidence but  also against testimony offered by his fellow  defendant, the Illinois courts order severance.  E.g., People v. Bean, supra, 485 N.E.2d at 355.


9
But we must consider whether there was a  reasonable probability (Strickland v. Washington,  466 U.S. 668, 694 (1984)) that the severance  would have made a difference to the outcome of  the trial. If Santisteven would have taken the  stand in a separate trial of Hernandez and been  cross-examined as he was in the joint trial, the  answer is "no." But he would have taken the stand  only if he had been promised a break if he did  so, and such a deal would have exposed him to  potentially very damaging cross-examination,  which would have revealed that Santisteven was  strongly suspected of having committed another  murder, thus casting the deal in a particularly  unsavory light. (If he would not have taken the  stand, Hernandez would have had no incentive to  do so, and would almost certainly have been  acquitted.) It would have been apparent to the  jury that the defendant who admitted having shot  the murder victim and who was in jeopardy of  being prosecuted for still another murder (and  might therefore be a prime candidate for capital  charges) was trying in exchange for leniency to  pin the blame on the other defendant, and the  jury might well have been skeptical of  Hernandez's guilt given the dearth of other  evidence against him.


10
The point is not that, had Hernandez's lawyer  been up to snuff, valid evidence of his client's  guilt would have been withheld from the jury;  assistance of counsel is not constitutionally  ineffective when the lawyer's pratfalls do not  undermine confidence in the accuracy of the  verdict. Holman v. Page, 95 F.3d 481, 490 (7th  Cir. 1996). So weak was the evidence against  Hernandez apart from Santisteven's testimony, and  so weak would that testimony have been if  effective cross-examination had been feasible,  that counsel's ineffectuality does undermine our  confidence that Hernandez was actually guilty.


11
At argument the state's lawyer spun some  fanciful webs for us, for example suggesting that  had the motion to sever been granted Santisteven  would have been tried first, convicted, and then  for the hell of it would have testified at  Hernandez's trial, though he would have had  nothing to gain by doing so. Anything is  possible, but if Santisteven had testified as the  state's witness he would have been ripped apart  on cross-examination. In summary, it is  reasonably probable that but for the subpar  performance of Hernandez's lawyer, Hernandez  would have been acquitted. United States v.  Yizar, supra, 956 F.2d at 233-34; see also  Williams v. Washington, supra, 59 F.3d at 682-83.  He is entitled to a new trial within 120 days, or  failing that to be released. In light of this  ruling, it is unnecessary to consider whether the  prosecutor's closing argument, though  reprehensible, independently violated Hernandez's  constitutional rights.


12
Reversed.

