In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2383

Vonaire T. Washington,

Petitioner-Appellee,

v.

Judy Smith, Warden,
Oshkosh Correctional Institution,

Respondent-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-0424--Lynn Adelman, Judge.


Argued February 24, 2000--Decided July 6, 2000



  Before Posner, Chief Judge, Cudahy and Evans,
Circuit Judges.

  Cudahy, Circuit Judge. On September 17, 1991, a
Wisconsin jury convicted Vonaire Washington of
two counts of being party to an armed robbery and
one count of being a felon in possession of a
firearm. The state court sentenced Washington to
consecutive prison terms totaling 22 years
imprisonment. Washington filed a post-conviction
motion in the trial court, claiming that at trial
he was denied effective assistance of counsel,
and following a two-day evidentiary hearing, the
trial court denied that motion. Washington
appealed, and the Wisconsin Court of Appeals
affirmed his conviction in an unpublished
opinion. The Wisconsin Supreme Court denied
Washington’s petition for review.

  Washington then filed an application for a writ
of habeas corpus under 28 U.S.C. sec. 2254 in the
United States District Court for the Eastern
District of Wisconsin, again arguing ineffective
assistance of counsel. The district court found
that Washington had been denied effective
assistance of counsel and was prejudiced as a
result and that the state-court decisions
involved an unreasonable application of
Strickland v. Washington, 466 U.S. 668 (1984).
The district court granted Washington’s
application on August 29, 1999, and the State
appeals that decision. We affirm.

I.   Background

  A.   The Robbery

  On Sunday July 15, 1990, at about four o’clock
in the afternoon, three men entered the Jolly
Skot Tavern in Milwaukee and robbed the
owner/bartender--James D. Johnson/1--and two
patrons--Jane Dornuf and James Earl Davis--at
gunpoint. The first of the three men entered
carrying a shotgun, leapt onto a barstool and
then onto and over the bar, pointing the shotgun
at the bar owner, who at that point was lying
face down on the floor. The man who had jumped
over the bar then asked, "Should I pop him?" One
of the other robbers responded, "Pop him," and
then repeated, "Well, pop him," but the man with
the shotgun did not. Instead, he took
approximately 200 dollars from the bar owner’s
pockets. The second robber, armed with a silver
handgun, took Dornuf’s wallet and cash and also
robbed Davis. The third robber remained by the
door, and after about ten minutes, the three men
left.

  About two hours later, the police stopped three
men-- Leother Lobley, Clifford Beasley and
Vonaire Washington--in a car at the 1600 block of
North 29th Street. The police found a large blue
gym bag containing two 12-gauge shotguns and
shells on the floor in front of the front
passenger seat. All three men were placed under
arrest and were escorted to the Jolly Skot Tavern
in handcuffs. At the tavern, the bar owner was
unable to identify any of the three men as one of
the robbers. The patrons performed better: Dornuf
identified Washington as one of the participants
in the robbery, and Davis also identified
Washington as one of the robbers.

  On July 18, 1990, the police conducted a lineup
at the police station. Washington was not part of
this, or any other, lineup at the police station.
However, the day before, Washington’s soon-to-be
codefendant, James L. Johnson, had been
arrested,/2 and Johnson occupied position number
two in the lineup. The bar owner and the two
patrons took a look. The bar owner, just as
before in the bar, could not make any visual
identification. However, the lineup participants
were instructed to say the phrase "Should I pop
him?", and the bar owner then identified
codefendant Johnson as one of the robbers. Davis
failed to positively identify any member of the
lineup, but Dornuf later, when she was shown a
photograph of the lineup, identified Johnson as
one of the robbers. Both Washington and Johnson
were charged in connection with the robbery of
the Jolly Skot, and the case proceeded to trial.


  B.   Washington on Trial

  On the second day of trial--after jury
selection but before the presentation of evidence
began--Washington addressed the court regarding
his concerns about his representation. Washington
asserted that he had asked his attorney, Mr.
Isadore Engle, to subpoena numerous alibi
witnesses but Mr. Engle had failed to do so. He
also told the trial court that Mr. Engle had
never discussed trial strategy and witnesses with
him. See Ex. P at 4-8. The court responded,
saying, "I assume your lawyer knows what an alibi
witness is and which witnesses would be allowed
to testify and which wouldn’t. He’s trained in
the law. He’s got a good reputation. The matter
is scheduled for trial right now. He’s ready to
proceed. I’m not going to adjourn it." Id. at 6-
7. After this ruling, Mr. Engle volunteered that
"[Washington] told me he had an alibi. I filed an
alibi. . . . He comes forward with matters before
the Court that he asked for certain witnesses I
didn’t produce. He never asked for one." Id. at
8. The court called the jury, and the testimony
began.

  The State’s case against Washington consisted of
testimony from the bar owner, patrons Jane Dornuf
and James Davis, and Officer Arrastia (one of the
officers who arrested Washington). At trial, the
bar owner could not visually identify any of the
participants in the robbery. When asked to point
to the person whose voice he had recognized at
the lineup, although the situation is not
entirely clear, the bar owner apparently pointed
at Washington. Mr. Engle did not object or cross-
examine the bar owner about the fact that he had
never identified Washington, by voice or
otherwise./3 Ms. Dornuf testified that
Washington was the man with the shotgun and that
he had robbed the bar owner, but she admitted on
cross-examination (by codefendant Johnson’s
counsel) that she "may have" told the police that
she was "positive" Johnson was the robber with
the shotgun when she saw the photograph of the
lineup. She also admitted that at the preliminary
hearing she "couldn’t be sure" who carried the
shotgun and "couldn’t be sure" who robbed the bar
owner. Davis recounted the story of the robbery
and testified that the police brought two men to
the Jolly Skot after the robbery. He identified
Washington both as one of these men and as one of
the robbers. Davis also testified that he was
unable to identify anyone in the lineup (although
number four, who was one of the decoys, "look[ed]
very familiar"). Officer Arrastia testified that,
when the police stopped the car on 29th Street,
he saw Washington get out of the front passenger
seat and that another officer found a blue duffle
bag containing two shotguns and shells on the
front passenger floor.

  Washington testified in his defense, as did two
alibi witnesses. Washington testified that on the
day of the robbery, he was staying with Sandra
Blue and had borrowed her car at about noon to go
to Gola Richardson’s house. Richardson lived near
the corner of 24th and Vine in Milwaukee. After
his arrival at Ms. Richardson’s, he watched The
Great Escape, starring Steve McQueen, on
television with Richardson, her sister Sharon
Brown/4 and her brother David Brown. After the
movie, Washington and David Brown went out on the
porch to talk. It was raining, but after the rain
stopped, Jerome Pickens-- whom Washington had
never met before--joined them to chat. Washington
further testified that they heard men down the
street arguing and went to see what was
happening. One of the arguing men pulled a gun
and fired at a house. The shooter then jumped on
a motorcycle, and as he rode off, a second man
came into the street and shot at the fleeing man.
After the action ended, Washington, David Brown
and Pickens were (quite understandably)
discussing the incident when Sandra Blue paged
Washington on his beeper. Washington went to a
tavern near the corner of 24th and Vine--there
was no phone at Gola Richardson’s--at about 3:30
or 4:00 to call Blue. Blue wanted her car back,
but Washington told her that it would not start,
and that he was stranded at Gola Richardson’s
house. Washington returned to Gola Richardson’s
house, and around 5:00 or 5:45, two acquaintances
of Washington’s pulled up in a car. The car was
driven by Leother Lobley, and Washington
testified that he got into the back seat of the
car (saying that Officer Arrastia was "incorrect"
to say that he had been in the front seat), and
they left. The police stopped this car shortly
thereafter and arrested the three occupants.

  The only two alibi witnesses that testified for
Washington at trial were Sandra Blue and Jerome
Pickens. Blue testified that on the day of the
robbery she let Washington borrow her car around
noon. She paged Washington at about 4:00. She
wanted her car, but he called her back and told
her that it would not start and asked her to have
his brother come pick him up at Gola
Richardson’s. During cross-examination, she
admitted to having two prior convictions.
Washington’s other alibi witness, Jerome Pickens,
testified that he saw Washington at Gola
Richardson’s house on the day of the robbery. He
testified that he was with Washington--whom, he
said, he had met for the first time that day--
from about 2:00 or 2:30 until about 6:00, except
at 5:00 when Washington left to make a phone
call. He saw the shooting take place around 3:30.
Pickens also admitted having two prior
convictions.

  At the conclusion of the four-day trial, the
jury rejected Washington’s alibi defense and
found him guilty as charged. Washington retained
new counsel before sentencing, and the court
sentenced Washington to a total of 22 years in
prison. Washington, through his new counsel,
filed a motion for post-conviction relief on the
ground that he had been denied effective
assistance of counsel in the trial court. The
court held an evidentiary hearing on November 16
and 17, 1992.


  C.   The Post-Conviction Hearing

  The first witness at the post-conviction hearing
was Washington’s former counsel, Isadore Engle.
Mr. Engle, who has been practicing criminal law
since 1944, testified that Washington had given
him Gola Richardson’s name some time before trial
and that he listed Ms. Richardson on the Notice
of Alibi he filed on April 22, 1991. Mr. Engle
claimed that this was the only name Washington
gave him before trial, but he could not find
notes on the substance of any of his pre-trial
meetings with his client. Mr. Engle further
testified that he had attempted to contact Gola
Richardson about three times by visiting her home
(recall, she did not have a telephone), but he
never interviewed her. Mr. Engle left his
business card with someone at her residence but
never heard from her. He did not seek the
assistance of an investigator to contact her,
and, although she was scheduled to testify on
June 13, he did not give the sheriff a subpoena
for Ms. Richardson until June 11 (the second day
of trial). By the time the subpoena was served,
Gola had left town for the week; therefore, she
did not testify at trial.

  Although Mr. Engle had told the trial court
that Washington "had never asked for one" witness
besides Gola Richardson, he testified at the
post-conviction hearing that Washington gave him
a list of additional witnesses immediately before
the trial began. That list identified Jerome
Pickens, Sandra Blue, Sharon Brown, David Brown,
Leother Lobley, Clifford Beasley and others as
additional witnesses, but Mr. Engle made no
attempt to contact any of these individuals. Mr.
Engle explained this failure by stating: "There
was no way I could have an opportunity to contact
them at that late time. I was busy trying the
case." Ex. W at 17. Washington, however, while in
custody awaiting trial, actually managed to
contact Sandra Blue and Jerome Pickens on his own
and secured their testimony for his defense.
Testimony had to be reopened twice to allow these
witnesses to testify. Although he did not help
contact them, Mr. Engle did manage to find time
to talk to Blue and Pickens immediately before
each testified. Mr. Engle also testified at the
post-conviction hearing that it was "brand new
material" when Washington testified that he was
with Sharon Brown, David Brown and Jerome Pickens
on the day the Jolly Skot was robbed.

  Mr. Engle was also questioned about a copy of a
police report he admittedly received months prior
to trial. The two-page report had been prepared
by Detective Clifford Hudlet, and that report
contained statements Leother Lobley made to
Detective Hudlet after Clifford Beasley,
Washington and Lobley were arrested, explaining
that the shotguns found in the car were not
Washington’s but that they had been placed there
by "Shorty G." earlier in the day. The report
also reflected that Lobley told Detective Hudlet
that Washington knew nothing about the shotguns
being in the car. The questioning of attorney
Engle went as follows:

Q: Now, in your preparing for this case, did you
read those two pages [of the police report]?

A: I did but I couldn’t make out too much of what
it said because the writing is bad.

. . .

Q: Did you do anything to attempt to decipher the
handwriting that you find difficult to read?

A: I deciphered it as best I could.

Q: Do you feel you understand or were able to
understand the contents of that statement by Mr.
Lobly [sic]?

A: Not very much.

. . .

Q: So, during your preparation for this case,
assuming that that statement does say that Shorty
G. gave this to them, a large blue gym bag, you
never had that information in your head when you
prepared this case; is that right?

A: That’s right.

Ex. W at 4-6. Perhaps as an obvious consequence
of being ignorant of the contents of the reports,
Mr. Engle did not attempt to speak with Lobley
prior to or during the trial.
  Gola Richardson testified at the post-conviction
hearing, where she explained that Washington had
been with her, Sharon and David Brown and Jerome
Pickens at her home until at least 6:00 on the
day the Jolly Skot had been robbed. She also
testified that there was a shooting down the
street that day and that Washington’s car would
not start. No one had contacted her regarding
testifying at Washington’s trial, nor had she
received the business card Mr. Engle claimed to
have left for her. David Brown also testified,
and he said that Washington was with him, Gola
Richardson, Sharon Brown and Jerome Pickens all
afternoon on that day. He also recalled that
there was a shooting incident. Brown testified
that someone came to talk to him about the case,
but he did not recognize Mr. Engle (who was at
the hearing), and the person who had talked to
him never contacted him again. Washington also
testified briefly, claiming that he had given Mr.
Engle the names of Sharon and David Brown, as
well as Jerome Pickens, well before the trial
began, in direct contradiction to Mr. Engle’s
testimony. It was Washington’s understanding that
they were going to be listed on the Notice of
Alibi with Gola Richardson.

  D.   State-Court Rulings

  The Wisconsin trial court made no specific
findings of fact and found nothing wrong with
Washington’s representation at trial: the court
found that Mr. Engle "under all the circumstances
was not inefficient [sic], [and] that his
performance did not fall below the standard of a
reasonably competent attorney in his community,
or an average attorney in his community . . . ."
Ex. W at 94. The court also noted that Mr.
Engle’s failure to subpoena Gola Richardson at an
earlier date was "unfortunately . . . not an
unusual way of proceeding in these criminal
cases." Id. at 92. The court also, without making
any specific findings of fact, apparently
credited Engle’s story that he had not heard
about Sharon or David Brown until immediately
before trial. The court said nothing about Lobley
or the unread police report. The Wisconsin Court
of Appeals affirmed and stated that Mr. Engle’s
"efforts to contact [Richardson] and have her
appear for trial were ’reasonable[ ] under
prevailing professional norms,’" State v.
Washington, 514 N.W.2d 879, 1994 WL 51669, at *2
(Wis. App. Feb. 22, 1994) (quoting Strickland,
466 U.S. at 688), and found the circuit court’s
implicit factual findings "not clearly
erroneous," id. The court did find Engle’s
failure to read the police report deficient
performance but found that this failing was
harmless. The Wisconsin Supreme Court denied
review.


  E.    Federal Court

  On April 21, 1997, Washington filed this
application for a writ of habeas corpus under 28
U.S.C. sec. 2254 in the Federal District Court
for the Eastern District of Wisconsin. The
district court granted that application. The
district court found that the state courts’
determinations that (1) Mr. Engle’s failure to
subpoena Gola Richardson was excusable, (2)
Engle’s failure to interview Sharon or David
Brown (or call them as witnesses) was excusable
and (3) any deficient performance by Mr. Engle
was not prejudicial to Washington’s case were all
unreasonable applications of Strickland v.
Washington. The district court therefore granted
Washington’s application, and the State appeals.

II.    Analysis

  Our decision in this case is governed by the
increasingly familiar standards established by
the Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). Under AEDPA, we cannot grant Washington
the relief he seeks unless the state-court
adjudication 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). The Supreme
Court has recently expounded on the proper
application of sec. 2254(d)(1) in its Williams v.
Taylor, 120 S. Ct. 1495 (2000), decision.
Briefly, in order to secure a writ under sec.
2254(d)(1), Washington must satisfy one of the
following two conditions: "the state-court
adjudication resulted in a decision that (1) ’was
contrary to . . . clearly established Federal
law, as determined by the Supreme Court of the
United States,’ or (2) ’involved an unreasonable
application of . . . clearly established Federal
law as, determined by the Supreme Court of the
United States.’" Williams, 120 S. Ct. at 1523.
The statutory phrase "clearly established Federal
law as determined by the Supreme Court of the
United States," is a critical limitation under
sec. 2254(d)(1) and refers to, obviously enough,
"the holdings, as opposed to the dicta, of [the
Supreme Court’s] decisions as of the time of the
relevant state-court decision." Id. The district
court found the Wisconsin Court of Appeals
decision denying Washington relief to be an
unreasonable application of Strickland, and
granted his application for a writ of habeas
corpus accordingly. We review the district
court’s decision to grant habeas relief de novo.
See Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.
1999).

  Washington claims that he was denied his right
to effective assistance of counsel under
Strickland, and "[i]t is past question that the
rule set forth in Strickland qualifies as
’clearly established Federal law, as determined
by the Supreme Court of the United States.’"
Williams, 120 S. Ct. at 1512. Under Strickland,
a prisoner must show both that counsel’s
representation fell below an objective standard
of reasonableness and that he was prejudiced as
a result. See Strickland, 466 U.S. at 687. The
performance standard gives a wide latitude of
permissible attorney conduct, and a prisoner
"must overcome the presumption that, under the
circumstances, the challenged action might be
considered sound trial strategy." Id. at 689
(quotation omitted). If the prisoner has
identified specific omissions, the court must
determine "whether, in light of all the
circumstances, the identified acts or omissions
were outside the wide range of professionally
competent assistance." Id. at 690. Once the
prisoner establishes his counsel’s
ineffectiveness, he must still demonstrate
prejudice: "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." Id. at
694. Our task is to determine whether the
Wisconsin Court of Appeals rejection of
Washington’s ineffective-assistance claim was
either "contrary to, or involved an unreasonable
application of" the performance and prejudice
rules set out in Strickland. See Williams, 120 S.
Ct. at 1512. If either of these two measures of
error apply, Washington is entitled to relief.

  Courts have been wrestling with the precise
meaning and scope of the statutory phrase
"contrary to, or involved an unreasonable
application of" under sec. 2254(d)(1), but a good
part of that struggle is over, thanks to the
recent Williams decision. First, Williams
clarifies that, although they will often overlap,
the phrases "contrary to" and "unreasonable
application of" have independent meaning. See 120
S. Ct. at 1520. In order for the state court’s
decision to be considered "contrary to . . .
clearly established Federal law as established by
the United States Supreme Court," that state
court’s decision must be "substantially different
from relevant [Supreme Court] precedent." Id. at
1519. Thus, under the "contrary to" clause of
sec. 2254(d)(1), we could grant a writ of habeas
corpus in what would seem to be a narrow range of
cases where the state court applied a rule that
contradicts the governing law as expounded in
Supreme Court cases or where the state court
confronts facts materially indistinguishable from
a Supreme Court case and nevertheless arrives at
a different result. Such decisions would be
"contrary to" clearly established federal law
within the meaning of sec. 2254(d)(1). See id. at
1519. However, if the state court applied the
proper rule, yet reached a conclusion that the
federal habeas court would not have independently
reached, the federal court cannot grant the writ
based on the "contrary to" clause. See id. at
1520.

  The analysis under the "unreasonable application
of" clause, however, seems broader in that it
allows a federal habeas court to grant habeas
relief whenever the state court "unreasonably
applie[d] [a clearly established] principle to
the facts of the prisoner’s case." Williams, 120
S. Ct. at 1523. But, lest we think that this
provides us grounds for independent review of
state court decisions on questions of federal
law, the Supreme Court cautions that we must bear
in mind that "an unreasonable application of
federal law is different from an incorrect
application of federal law." Id. at 1522
(emphasis in original). When determining if a
state court decision "involved an unreasonable
application of clearly established Federal law,
as determined by the Supreme Court of the United
States," it seems that we are not permitted to
substitute our independent judgment as to the
correct outcome--as we could in a context, for
example, where we review a federal district court
decision de novo. Rather, a federal habeas court
operating pursuant to sec. 2254(d)(1) must only
ask if the state-court decision was reasonable.
Or, to put it slightly differently, we must
determine that the state-court decision was both
incorrect and unreasonable/5 before we can issue
a writ of habeas corpus. See id.

  Our inquiry begins by looking at the decision
of the Wisconsin Court of Appeals. The legal
analysis in its unpublished opinion is sparse--
the opinion mainly recites facts. See Washington,
1994 WL 51649. The Wisconsin Court of Appeals
addressed four omissions Washington claimed
demonstrated Mr. Engle’s deficiency as counsel:
(1) Mr. Engle’s failure to produce Gola
Richardson as a witness at trial; (2) Mr. Engle’s
failure to read the police report or speak with
Leother Lobley; (3) Mr. Engle’s failure to
interview Sharon or David Brown or produce them
as witnesses at trial; and (4) Mr. Engle’s
failure to effectively cross-examine the bar
owner.


  A.   Mr. Engle’s Performance
  The Wisconsin Court of Appeals properly
identified Strickland v. Washington as the source
of the rule to determine whether Mr. Engle’s
trial performance deprived Washington of his
Sixth Amendment right to effective assistance of
counsel, see Washington, 1994 WL 51649, at *2
("The lawyer’s efforts to contact [Gola]
Richardson and have her appear for trial were
’reasonable [ ] under prevailing professional
norms.’ Strickland, 466 U.S. at 688."), so it was
certainly not "contrary to" clearly established
federal law, here Strickland, in this respect.
The state court rejected Washington’s claims that
Mr. Engle rendered ineffective assistance by
failing to produce Gola Richardson as an alibi
witness at trial. See Washington, 1994 WL 51649,
at *2. The court found that Mr. Engle’s three
attempts to speak with Ms. Richardson and his
filing a subpoena two days before her testimony
was scheduled was "’reasonable under prevailing
professional norms.’" Id. (quoting Strickland,
466 U.S. at 688). The court also implicitly
concluded that because Mr. Engle did not find out
about Sharon or David Brown until the trial
began, his failure to investigate them was not
ineffective assistance under Strickland either.
See id. The Wisconsin Court of Appeals did,
however, find Mr. Engle’s failure to read the
police report to be deficient performance. See
id. We believe, that by finding Engle’s complete
failure to read the police report (deciphering
its handwriting if necessary) to be deficient
performance, the Wisconsin Court of Appeals
applied Strickland in an entirely reasonable
fashion. We are, however, unpersuaded of the
reasonableness of the court’s remaining
performance and prejudice conclusions.

  Gola Richardson was going to be a critical
witness at Washington’s trial, and she was the
only witness listed on Washington’s pre-trial
Notice of Alibi. Mr. Engle filed this Notice of
Alibi on April 22, 1991, but in the following
month-and-a-half before the trial, he failed to
contact her. According to his testimony, Mr.
Engle tried to contact Gola Richardson three
times--each time without success. He claims to
have left his business card at what he thought
was Ms. Richardson’s house, but he took no
additional steps to reach her when she did not
contact him. He did not seek the assistance of an
investigator. Nor did he seem to take into
account, in the timing of her subpoena, that Ms.
Richardson was hard to reach. He subpoenaed her
on the second day of trial, just two days before
this woman he could never find was to testify for
his client. The best justification for Mr.
Engle’s delay was given by the trial court in
denying Washington’s post-conviction motion:
[U]nfortunately [this] is not an unusual way of
proceeding in these criminal cases. They often
get adjourned so often that in order not to
frustrate the witnesses, the attorneys don’t
subpoena until they’re actually going to testify.
. . . That’s a sad commentary on some of the
crowded calendars that the courts are working
under, but it happens more often than we like
where we have several cases scheduled and
ultimately one of those goes on and some of the
others have to be adjourned. . . . So I don’t
find that particularly unusual.

Ex. W at 92-93. The Wisconsin Court of Appeals
merely commented, "The trial court credited the
lawyer’s testimony and concluded that the lawyer
was not ineffective. We agree." Washington, 1994
WL 51649, at *2. We emphatically do not agree.
Under Strickland, lawyers are granted wide
latitude to make reasonable strategic decisions,
see 466 U.S. at 689, but placing witness
convenience above the vital interests of his
client does not make Mr. Engle’s decision
reasonable--or even really strategic. The delayed
issuance of a subpoena may be justified as a
reasonable tactic if, for example, the strategy
is to keep the identity of a defense witness from
the State. See Huffington v. Nuth, 140 F.3d 572,
579 (4th Cir. 1998). Here, however, Mr. Engle had
no semblance of a tactical reason for the delay,
nor can we think of one for him. His delay fails
to demonstrate the kind of minimal diligence in
trying to secure Ms. Richardson as a witness for
trial an effective counsel would have displayed.
Especially given that he was well-aware of the
fact that Gola Richardson was hard to find, and
despite the claim that this may be typical
performance in Wisconsin’s criminal courts, Mr.
Engle’s failure to produce Gola Richardson for
trial, given his minimal attempts to contact her
and his failure to subpoena her until two days
before she was to testify does not fall within
"the range of professionally competent
assistance" under Strickland. 466 U.S. at 690.
Mr. Engle’s performance falls so wide of the
mark, that we are left with the conviction that
the Wisconsin Court of Appeals decision to the
contrary was an unreasonable application of
Strickland’s performance standard.

  The Wisconsin Court of Appeals also rejected
Washington’s argument that Mr. Engle was
ineffective in failing to produce or even to
contact Sharon Brown or David Brown. The court
rested this conclusion on the fact that the trial
court credited Mr. Engle’s testimony that he
first learned that Washington was with the Browns
at Gola Richardson’s house when Washington
testified to that effect on the stand. See
Washington, 1994 WL 51649, at *2./6 But Mr.
Engle also testified at the post-conviction
hearing that Washington had given him Sharon
Brown’s and David Brown’s names, along with many
others, immediately before trial. The trial court
and the Court of Appeals apparently credited this
statement as well. Based on this testimony by Mr.
Engle, we infer that, when he received the names
on the first day of trial, he did not ask
Washington about any of the proposed witnesses,
nor did he ever attempt to ascertain what they
might contribute to his case. Mr. Engle explained
his failure at the post-conviction hearing:

Q: Did [Washington] indicate to you why he thought
those fourteen people/7 named there might be
important as witnesses in this case?

A: We didn’t even have time to discuss it because
the trial started immediately thereafter.

Q: Did you request an adjournment based on this
potentially new information or new witnesses?

A: No, I didn’t. Because I had been asking him for
a list of witnesses for months, and it certainly
isn’t the Court’s fault nor is it my fault if I
don’t get this material when it’s asked for. I
can’t blame the Court and ask for a postponement
when you don’t get the cooperation of your
client.

. . .

Q: So aside from Gola Richardson and [Washington’s
former counsel], did you know any of those other
people on that list from your discussions with
Mr. Washington or your investigation of the case?

A: No.

Q: Did you discuss those names with him at all
during the breaks/8 in the course of the trial?

A: No, I didn’t.

. . .

Q: Did you ever ask him if those potential
witnesses had phone numbers that Mr. Washington
could provide to you?

A: I asked him to provide [the witnesses] at the
trial if he could do so and he did produce two of
them. Namely, he produced Sandra Bloe [sic] and
he produced Jerome Pickens, and I used both of
them.

Q: In other words, you left it to your client to
try to get those witnesses to court?
A: There was no way I could have an opportunity to
contact them at that late time. I was busy trying
the case.

Ex. W. at 15-17. Based on this testimony, not
only is it clear that Mr. Engle never attempted
to contact Sharon or David Brown, but he never
attempted to contact a single witness besides
Gola Richardson. Mr. Engle owed Washington "a
duty to make a reasonable investigation or to
make a reasonable decision that makes particular
investigations unnecessary," Strickland, 466 U.S.
at 691, and a failure to investigate can
certainly constitute ineffective assistance. See,
e.g., White v. Godinez, 143 F.3d 1049, 1055 (7th
Cir. 1998). Telling a client, who is in custody
awaiting trial, to produce his own witnesses (as
did Mr. Engle) falls painfully short of
conducting a reasonable investigation, especially
given that Sharon and David Brown did not have a
telephone. Perhaps Washington could have
dispatched a pigeon from his prison cell with a
message for the Browns, but, short of this, it is
wholly unreasonable for a lawyer to instruct his
incarcerated client to get in touch with people
who don’t have a phone. Further, as we have
noted, Mr. Engle admitted that he did no
investigating because of the "late date" and
because he was "busy trying the case." It is hard
to imagine what kind of case Mr. Engle was
thinking of presenting, given that he had never
spoken to a single witness.

  The failure to investigate a particular lead
may be excused if a lawyer has made a "reasonable
decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 691. But
here, Mr. Engle was simply too "busy" and
apparently gave no thought to the potential
benefits of investigation. The Wisconsin Court of
Appeals never explicitly found this to be
effective assistance, instead merely stating,
"Furthermore, Washington has not demonstrated
that the trial lawyer’s failure to seek the
adjournment satisfies the prejudice component of
the two-part Strickland test." Washington, 1994
WL 51649, at *3. To the extent that this implies
that the state court might have concluded that
Mr. Engle had rendered effective assistance while
failing even to attempt to contact any other
witness besides Ms. Richardson, that conclusion
would have been based on an unreasonable
understanding of Strickland’s requirement that an
attorney conduct a reasonable investigation in
connection with his client’s case.

  Thus, Washington has identified three aspects in
which Mr. Engle’s performance fell below that of
a reasonably competent, professional attorney.
Even the Wisconsin Court of Appeals found the
failure to read the police report ineffective,
and had it properly applied Strickland, it would
have concluded that Mr. Engle’s failure to
subpoena a hard-to-find witness until the
eleventh hour and his failure to try to ascertain
what exculpatory evidence "new" witnesses might
have were flagrant examples of ineffective
assistance. Therefore, the Wisconsin Court of
Appeals adjudication "involved an unreasonable
application" of the attorney performance standard
contained in Strickland.


 B.   Prejudice to Washington

  But demonstrating that his trial counsel was
egregiously ineffective--which he has certainly
done--is not enough to secure Washington his
desired writ of habeas corpus. In order to get
relief, Washington must also show that he was
prejudiced by Mr. Engle’s ineffective assistance.
See Strickland, 466 U.S. at 691. Under
Strickland, Washington "must show that there is
a reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different." Id. at
694. The Supreme Court has also stated, however,
that "an analysis focusing solely on mere outcome
determination, without attention to whether the
result of the proceeding was fundamentally unfair
or unreliable, is defective." Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993). See also Nix
v. Whiteside, 475 U.S. 157, 175-76 (1986)
(explaining that even if a defendant’s perjury
might have led to an acquittal, it is not
fundamentally unfair to conclude that he was not
"prejudiced" by counsel’s interference with his
intended perjury). There is some superficial
tension between Strickland’s statement of the
prejudice standard, which looks to outcome
determination, and Lockhart’s, which looks beyond
outcome determination to the fundamental fairness
of the proceeding, but this tension evaporates
when one understands that the heightened
prejudice standard in Lockhart "concerns the
unusual circumstance where the defendant attempts
to demonstrate prejudice based on considerations
that, as a matter of law, ought not inform the
inquiry." Lockhart, 506 U.S. at 373 (O’Connor,
J., concurring). The Supreme Court recently
removed all doubt--again in its recent Williams
decision--that Strickland governs the prejudice
inquiry in most habeas cases and that the
decision in Lockhart does "not justify a
departure from a straight-forward application of
Strickland when the ineffectiveness of counsel
does deprive the defendant of a substantive or
procedural right to which the law entitles him."
Williams, 120 S. Ct. at 1513 (emphasis in
original). The Wisconsin Court of Appeals
apparently did not fully grasp the proper
interaction between Strickland and Lockhart in
determining that Washington did not show
prejudice, and in so doing, its decision was both
"contrary to" and "involved an unreasonable
application of" the proper prejudice analysis
prescribed by the Supreme Court.

  While holding that Washington had not satisfied
the prejudice requirement, the Wisconsin Court of
Appeals apparently applied the prejudice standard
enunciated in Lockhart, explaining that
"Washington has not demonstrated that his trial
lawyer’s failure to read the police report of the
interview with Lobley, and his subsequent failure
to call Lobley as a witness, made ’the result of
the trial unreliable or the proceeding
fundamentally unfair.’ See Lockhart, 113 S. Ct.
at 844." Washington, 1994 WL 51649, at *2. See
also id. at *3 ("[W]e cannot say that [Sharon
Brown’s and David Brown’s] failure to testify
made the ’the result of the trial unreliable or
the proceeding fundamentally unfair.’ See
Lockhart, 113 S. Ct. at 844.") In his attempt to
show prejudice, however, Washington is not
relying on considerations--like the reliance on
a state-court ruling that had been overturned (as
did the defendant in Lockhart) or his lawyer’s
refusal to let him commit perjury (as did the
defendant in Nix)--that would trigger the
heightened prejudice standard of Lockhart.
Washington is, instead, relying on Mr. Engle’s
failure to investigate, and an adequate
investigation is surely a "right to which the law
entitles him." Williams, 120 S. Ct. at 1513.
Prejudice in Washington’s case, therefore, should
have been determined under the Strickland
standard: did Washington show "that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different[?]"
Strickland, 466 U.S. at 694.

  Williams confirms that Lockhart did not modify
or supplant Strickland’s prejudice test in a case
such as this one, see Williams, 120 S. Ct. at
1513, but the Wisconsin Court of Appeals
apparently believed that there was a "Lockhart"
principle applicable here. In doing so, it
analyzed Washington’s ineffective-assistance
claim under the wrong standard. This error in
itself probably justifies granting Washington’s
application for a writ of habeas corpus under
sec. 2254(d)(1). We are, however, likewise
convinced that even if the Wisconsin Court of
Appeals somehow silently applied the Strickland
prejudice standard (without stating it or citing
to it/9), its decision that Washington was not
prejudiced by Mr. Engle’s unprofessional errors
involved an unreasonable application of that
standard.

  The Wisconsin Court of Appeals rested its
finding that Mr. Engle’s failure to investigate
Sharon and David Brown was harmless on,
apparently, three grounds: (1) the untimeliness
of Washington’s disclosure, (2) the fact that a
mid-trial adjournment would have likely been
denied and (3) the belief that Sharon Brown’s and
David Brown’s testimony would have been
"cumulative" of Sandra Blue’s and Jerome
Pickens’s testimony. See Washington, 1994 WL
51649, at *2-*3. The court also viewed Mr.
Engle’s failure to read the police report or to
contact Leother Lobley as harmless because
Washington had been identified by the two bar
patrons and Lobley’s testimony would have been
cumulative. Therefore, the testimony would not
have tended to diminish the possibility that
Washington actually committed the crime. See id.
at *2. Also, the Court of Appeals noted that if
Lobley had testified, the State would have put
Clifford Beasley on the stand and he would have
contradicted Lobley’s testimony about the
shotguns. See id. But the Wisconsin Court of
Appeals apparently did not consider the
accumulation of these errors as it would affect
Washington’s likelihood of conviction.

  The state’s case against Washington was far
from unassailable, and we know that "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."
Strickland, 466 U.S. at 696. The tavern owner
could not identify Washington, and there is some
indication that he erroneously pointed to
Washington when attempting to identify
codefendant Johnson. James Davis identified
Washington at trial, but his recollection may be
suspect because he remembered only two suspects
being presented by the police on the day of the
crime. Jane Dornuff also purportedly identified
Washington, and claimed that he was the man
carrying the shotgun. But at the preliminary
hearing, she could not recall whether Johnson was
carrying the handgun or the shotgun, and she may
have told the police that she was positive
Johnson carried the shotgun. Further, the
prosecution linked Washington to the robbery by
adamantly arguing that the shotguns were his and
that he had used them in the robbery. Lobley, if
called, would have testified that the guns found
in the automobile belonged to Shorty G. This
testimony would have undercut the impact of this
solitary physical evidence.

  If the case Mr. Engle presented was
Washington’s best case, the conviction would have
stood on solid ground. But Washington’s defense
was crippled. He testified, but only with
necessarily weak corroboration from Blue--who had
no direct knowledge of Washington’s whereabouts
after noon on the day of the robbery. Unlike
Blue, Gola Richardson, Sharon Brown, David Brown
and Jerome Pickens were with Washington at 24th
and Vine at about the time the Jolly Skot was
robbed. Jerome Pickens was the only one of these
to testify, corroborating Washington’s story, but
Pickens’s credibility was impaired because of his
prior convictions. The impact of three more
witnesses corroborating Washington’s alibi would
not have been "cumulative" as the Wisconsin Court
of Appeals believed./10 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 Pickens had
already testified to facts consistent with
Washington’s alibi did not render additional
testimony cumulative. Indeed, the additional
testimony of Gola Richardson, Sharon Brown and
David Brown--none of whom could have been
impeached as having a criminal record--would have
added a great deal of substance and credibility
to Washington’s alibi. See Montgomery v.
Petersen, 846 F.2d 407, 411-15 (7th Cir. 1987)
(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"). Rather than one
direct alibi witness with a criminal record,
Washington could have had three potentially more
credible witnesses, all of whom would have
supported his claim that he was at Gola
Richardson’s when the Jolly Skot was robbed.
Plus, the jury surely wondered where these people
were, especially Ms. Richardson who had been
named on Washington’s notice of alibi and who Mr.
Engle specifically mentioned at least at voir
dire. There was a negative inference against
Washington based on their absence. See Harris v.
Reed, 894 F.2d 871, 879 (7th Cir. 1990) (holding
that counsel’s failure to produce witnesses
referred to in opening statement was
prejudicial). Given the absence of these
witnesses, the jury had good reason to find
Washington’s alibi dubious.

  Also, if Mr. Engle had read Detective Hudlet’s
report, he would have known both to cross-examine
the reporting officer and to produce Leother
Lobley as a witness. Not only would Lobley have
corroborated Washington’s alibi by confirming
that he picked Washington up at 24th and Vine at
about 5:45, but his testimony also would have
distanced Washington from the shotguns by
explaining that Shorty G. put the guns in the car
and that Washington knew nothing about them. The
shotguns were the State’s only physical evidence
linking Washington to the robbery, and they were
a key part of the State’s case against him. At
trial, only Washington testified that the
shotguns were not his, so Lobley’s testimony to
the same effect could have helped a great deal.
The Wisconsin Court of Appeals believed that,
because Lobley’s testimony could have been
contradicted by Clifford Beasley--Beasley had
told the police that the shotguns were
Washington’s--Lobley’s absence was not
prejudicial. But, the mere fact that some
negative evidence would have come in with the
positive does not eliminate the prejudicial
effect of leaving corroborative evidence
unintroduced.

  Evaluated individually, these errors may or may
not have been prejudicial to Washington, but we
must assess "the totality of the omitted
evidence" under Strickland rather than the
individual errors. See Williams, 120 S. Ct. at
1515. Considering the "totality of the evidence
before the . . . jury," Strickland, 466 U.S. at
695, Engle’s unprofessional errors were
prejudicial to Washington. Engle did not just
botch up one witness or one argument or one
issue--he repeatedly demonstrated a lack of
diligence required for a vigorous defense.
Engle’s performance "so undermined the proper
functioning of the adversarial process that the
trial cannot be relied on as having produced a
just result." Strickland, 466 U.S. at 686. All
Washington needed to do was establish a
reasonable doubt, and having additional, credible
alibi witnesses would have covered a lot of
ground toward that goal. The Wisconsin Court of
Appeals looked at the mass of evidence that
Washington could have produced but for Mr.
Engle’s errors, and it unreasonably concluded
that its absence did not cause prejudice.
Although questions of this kind do not lend
themselves to the mathematical certainty of an
acquittal, the proper application of Strickland
should have left the Wisconsin Court of Appeals
with the belief that acquittal was reasonably
probable if the jury had heard all of
Washington’s evidence. Therefore, we find that--
in addition to being "contrary to" Strickland--
the decision of the Wisconsin Court of Appeals
"involved an unreasonable application of"
Strickland’s prejudice component to the facts of
this case.
III.   Conclusion

  Accordingly, the judgment of the district court
to grant Washington’s application for a writ of
habeas corpus under sec. 2254(d)(1) is Affirmed.
The State shall retry Washington within 120 days,
or failing that, Washington is entitled to be
released.


/1 James L. Johnson was Washington’s codefendant, so
to avoid any confusion between the bar owner and
the codefendant, this opinion will refer to James
D. Johnson simply as "the bar owner" and will
refer to James L. Johnson as "codefendant
Johnson" or just "Johnson."

/2 Johnson had been apprehended on July 17, 1990.
When the police searched him, they found a .25
caliber handgun, .25 caliber shells and Jane
Dornuff’s Wisconsin driver’s license and
identification card.

/3 Mr. Engle did cross-examine a police officer
about the lineup at the police station, of which
Washington was not a member. But he never clearly
impeached the bar owner. Nonetheless, Washington
does not pursue this issue here.

/4 Sharon Brown is occasionally referred to as
"Sharon Richardson" in some transcripts and
materials. This is not an important detail, so we
will just refer to her as "Sharon Brown."

/5 We think it safe to assume that there is no such
thing as a correct, yet unreasonable, application
of federal law.

/6 Washington disputed this, claiming that he gave
this list of witnesses to Engle well before
trial. However, we need not address this
disparity because we would reach the same
conclusion under either version of the facts.

/7 As mentioned before, this list included
Washington’s former counsel (who had been
replaced by Mr. Engle), Gola Richardson, Sharon
Brown, David Brown, Jerome Pickens, Sandra Blue
and Leother Lobley, as well as others not
relevant here.

/8 There was at least one sizable break in the
trial. The trial did not begin on the third day,
Wednesday June 12, until 2:00 in the afternoon.
(The attorneys and the court had agreed the
previous day to delay the beginning on Wednesday
so that Ms. Heard, the prosecutor in the case,
could attend her son’s graduation from
kindergarten. See Ex. Q at 23-24.) Mr. Engle did
not attempt to speak with his client on that free
Wednesday morning.

/9 The Wisconsin Court of Appeals did make one brief
mention of "the two-part Strickland test," see
Washington, 1994 WL 51649, at *2, but this
reference was made more in passing than as a
citation to a legal standard or to authority. For
each of its prejudice rulings, the court clearly
cited Lockhart, and only Lockhart, as authority.

/10 Neither Sharon Brown nor Leother Lobley testified
at the post-conviction hearing, but, by finding
that their testimony would have been cumulative,
the Wisconsin Court of Appeals assumed that their
testimony would have been consistent with
Washington’s alibi. We do too.
