                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-2340
CHRISTOPHER RAYGOZA,
                                           Petitioner-Appellant,
                                v.

DON HULICK,
                                           Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
          No. 03 C 1727—Robert W. Gettleman, Judge.
                         ____________
  ARGUED FEBRUARY 7, 2006—DECIDED JANUARY 25, 2007
                    ____________


 Before BAUER, RIPPLE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Although this case comes to us
on an appeal from a denial of collateral relief, at base it
is a “who-dun-it.” Christopher Raygoza was convicted in
state court for first-degree murder and attempted murder,
but he had an alibi. More than that, he had ten available
alibi witnesses, most of whom were not related to him, but
his attorney made little effort to investigate his alibi,
called only one of those witnesses at trial, and failed to
offer telephone records that would have corroborated
Raygoza’s defense. The state courts rejected Raygoza’s
claim that he had received constitutionally ineffective
assistance of counsel, and the district court concluded
that federal habeas corpus relief was unavailable.
2                                             No. 05-2340

We conclude that counsel failed to meet minimum perfor-
mance standards and that his actions (or lack thereof )
prejudiced Raygoza. We therefore reverse.


                            I
  On June 4, 1997, at approximately 9:45 in the evening,
two teenagers were shot at DeArco’s Pizzeria, on the
southwest side of Chicago. One of them, Miguel Macias,
was killed, and the other, Hugo Munoz, was badly injured.
According to eyewitnesses, a person flashing gang signs
and indicating that he was a “United Latino killer” entered
the pizzeria. Macias and Munoz were members of a gang
called the United Latino Organization (ULO). After that
person left the restaurant, another young man returned
with a gun and opened fire. Three members of the ULO
who were present at the time identified Raygoza as the
gunman and Leslie Matos as the person who first walked
into the pizzeria. In addition, Raul Quezada, a young
member of the rival Latin Soul street gang, to which
Raygoza and Matos belonged, testified that he was at the
pizzeria that evening serving as a lookout. Quezada
testified that Raygoza, whom he knew as “Froggy,” was the
shooter.
  Other witnesses also supported the State’s case. Accord-
ing to the facts as the Illinois Appellate Court recounted
them, Matos stood in the doorway of the pizzeria as the
violence was unfolding and shouted “kill him, kill him,
shoot him.” Three witnesses identified the shooter as
having a blond pony-tail—a description that matched
Raygoza at the time. Other people also testified that
someone who looked like Raygoza was on the scene.
Jennifer Calatayud testified that she saw Matos and
Raygoza outside a party at 62nd Street and Sacramento
Avenue around 8 pm. Matos told her that he had “some-
thing to do” and would meet her in about 15 minutes. She
No. 05-2340                                              3

waited, and he showed up about an hour later, out of
breath. He told her that “the boys” had shot someone at
the pizza place on California (DeArco’s). Later, Raygoza
and Matos were identified in photographic arrays and line-
ups as the guilty parties, and they were arrested and
charged with first-degree murder and attempted murder,
among other things.
  Raygoza’s account of his actions that evening is com-
pletely different: if true, then the police arrested the
wrong person for Macias’s murder. That evening,
Raygoza’s mother, Maria Raygoza, celebrated her 40th
birthday with friends and family at their home in the far-
north suburb of Highland Park, Illinois. According to
Mapquest (a popular internet site), Highland Park is
approximately 35 miles away from the scene of the shoot-
ing, see http://www.mapquest.com; the website estimates
that it would take 52 minutes to drive from the center of
Highland Park to West 62nd Street and South California
Avenue. A total of nine people, including Christopher,
were in the Raygoza home that evening. The next morn-
ing, on June 5, Maria took Christopher along with her to
an errand at the Daley Center in downtown Chicago; later,
he went to the southwest side, where his family had lived
until December 1996, to see his girlfriend Desiree Moyet.
In the early evening, Raygoza called his mother at her
office and told her that there had been a shooting in the
area and that he was afraid that he might be “pinpointed”
for it.
  His fears were realized two days later, on June 7, after
detectives received a tip that “Froggy” was involved in the
shooting. On June 11, a detective had a telephone conver-
sation with Attorney Wendy Morgan, who was Maria
Raygoza’s boss; Attorney Morgan identified herself as
Christopher’s attorney. On his behalf, she agreed to an
interview between Christopher and the police at her office;
the meeting was to take place on June 17. Events overtook
4                                            No. 05-2340

these plans when the police arrested Raygoza on the
evening of June 12 at his home in Highland Park, without
notifying Morgan.
  After his arrest, Raygoza was subjected to a marathon
interrogation by the detectives, who refused his requests
to consult with his mother or with counsel. Notes from
the state’s attorney indicate that Raygoza initially said
that he was at home on the evening of June 4 with family
and friends, but that later he admitted that he had been
present at the shooting and that “Lucky” had done it. His
story changed again, twice: first he asked if he could say
that “Shadow” was the shooter, and eventually, at 10:55
the next morning (some 13 hours into the interrogation),
he signed a statement written out by the state’s attorney
confessing that he was the guilty party. The state trial
court suppressed this confession on the ground that the
detectives had violated Raygoza’s Sixth Amendment right
to counsel. The trial proceeded nevertheless. Raygoza,
represented by Attorney Thomas Brandstrader, waived
his right to a jury.
  At the trial, the state called several witnesses who
identified Raygoza as the shooter, although they had not
known him before the incident. Quezada testified that he
was acting as a lookout, and that “Froggy” (Raygoza) had
told him to watch for police. Quezada did not witness the
shooting itself; when he heard shots from inside the
pizzeria, he ran away. Although Calatayud testified that
she had seen Raygoza at a party near the pizzeria that
evening, police reports indicate that she initially told
the police that he had not been there. She changed her
story two years later—a fact Brandstrader knew.
  Brandstrader conducted almost no cross-examination of
the state’s witnesses, including Calatayud. He did not
call any of the other people who had been at the party,
even though their names were in the police report. Al-
No. 05-2340                                              5

though, when it came time for the defense case, Brand-
strader raised the defense of alibi, he said only that
Raygoza was at home in Highland Park at the time “with
his mother, Maria Raygoza . . ., Desiree Moyet . . ., and
Noemi Cordova.” He never mentioned any of the other
guests, nor did he mention the fact that Morgan had
called Maria’s house during the evening to talk to her
and Christopher had answered the telephone. Brand-
strader called only one defense witness, Moyet. In his
closing argument, the prosecutor hammered on the
skimpiness of the evidence supporting Raygoza’s alibi:
“[W]here is Alexis? Where is mom? Where is his brother?
Where is the blond lady? Where is the sister?” The trial
court found Raygoza guilty. In doing so, the judge too
commented on the fact that Raygoza had only one alibi
witness, and a biased one at that (his girlfriend).
  After the verdict but before sentencing, Raygoza hired
a new lawyer. This attorney filed a motion for new trial
based on ineffective assistance of counsel, and attached
affidavits of seven alibi witnesses who had been avail-
able to testify at trial but had not been called. New coun-
sel also submitted other corroborating evidence, including
telephone records and train tickets. The trial judge held
a hearing on the motion, but even before the hearing be-
gan he expressed skepticism about the value of the
proceeding. Seven witnesses testified, all supporting
Raygoza’s alibi. They were (1) Maria Raygoza, (2) Vincent
Raygoza, Christopher’s 15-year-old brother, (3) Crystal
Raygoza, his 13-year-old sister, (4) Noemi Cordova, a
friend of Maria’s who had spoken to Christopher several
times before arriving at the home and then had seen him
there, (5) Luisi Paredes, Cordova’s 14-year-old son, (6)
Wendy Morgan, and (7) Rodney Adams, Morgan’s hus-
band, who confirmed that Morgan had spoken on the
telephone at 9:15 pm on June 4 to Christopher (a fact he
knew because he recognized Christopher’s voice when he
6                                             No. 05-2340

answered the telephone). Other witnesses to the murder
testified that Eduardo Lerma (“Lucky”) was the one who
shot Macias and Munoz, to retaliate for an earlier shooting
of Lerma, a Latin Souls member, by a ULO member.
Lerma and Raygoza bore a strong physical resemblance
to one another.
  The State responded with evidence about a woman
named Chloe Gavin, who was a former friend and land-
lord of Maria Raygoza, who turned out to be a con artist.
Gavin was also at the birthday party at the Raygoza home.
Morgan had helped an investigator put together a time-
line of events relating to Gavin. The prosecutor believed
that this timeline was a disguised script for the alibi
witnesses. The timeline stretched from October 17, 1996,
to June 1, 1998, and thus covered a great deal of territory
beyond June 4, 1997.
  Attorney Brandstrader explained his decision to call
only one alibi witness at the hearing. The first time he
ever spoke to Moyet was on the day she testified. He did
not want to call Maria because “mothers are always alibis.”
Although he met with Maria Raygoza approximately
30 times prior to the trial, he somehow never asked her
about her activities around the time of the shooting, and
so he never learned that June 4 was her birthday, that
she had invited friends over, and that she had taken
Christopher to the city the next day. Cordova, he thought,
would be unreliable, and he failed in his three efforts to
serve her with a subpoena. He found other problems with
Raygoza’s siblings, Vincent and Crystal. As for the tele-
phone records, he learned only in September of 1997
about Morgan’s conversation with Christopher. His trial
strategy instead, he said, was to attack the identifica-
tion witnesses. But he never attempted to interview any
of the three eyewitnesses who had identified Raygoza, nor
did he interview Calatayud or the others at the party. The
trial court rejected Raygoza’s motion for a new trial and a
No. 05-2340                                                7

motion to reconsider. The Illinois Appellate Court af-
firmed, and the Supreme Court of Illinois denied leave to
appeal.
   This habeas corpus petition followed. In denying relief,
the district court commented “I don’t think I have the
discretion to grant your request for an evidentiary hearing.
I think it would be futile. If I’m wrong, the Court of
Appeals will tell me I’m wrong. I think this is a closer
case than most that we see. I’m obviously disturbed by
it.” Although the state judge had not said anything
about the credibility of the witnesses at the post-trial
proceeding, the district court assumed that the judge
had not believed them. No other reason, in his view,
could explain why the judge did not order a new trial.


                             II
  Aficionados of habeas corpus law are familiar with the
standards the Supreme Court has established for claims
of ineffective assistance of counsel, but we review them
here briefly to set the stage for our discussion. The leading
case is Strickland v. Washington, 466 U.S. 668 (1984),
where the Court summarized the two components of such
a claim as follows:
    First, the defendant must show that counsel’s perfor-
    mance was deficient. This requires showing that
    counsel made errors so serious that counsel was not
    functioning as the “counsel” guaranteed the defendant
    by the Sixth Amendment. Second, the defendant
    must show that the deficient performance prejudiced
    the defense. This requires showing that counsel’s
    errors were so serious as to deprive the defendant of
    a fair trial, a trial whose result is reliable.
Id. at 687. In assessing counsel’s performance, “a court
must indulge a strong presumption that counsel’s con-
8                                              No. 05-2340

duct falls within the wide range of reasonable pro-
fessional assistance,” id. at 689. See also Berkey v. United
States, 318 F.3d 768, 772 (7th Cir. 2003). “[S]tragetic
choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchal-
lengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the
extent that reasonable professional judgments support
the limitations on investigation.” Strickland, 466 U.S. at
690-91. With respect to prejudice, the Supreme Court
clarified that it is not enough to show that the attorney
erred, or that the error had “some conceivable effect on
the outcome.” Id. at 693. But, importantly, “the defendant
need not show that counsel’s deficient conduct more
likely than not altered the outcome in the case.” Id.
Instead, “the defendant must show that there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome.” Id. at 694.
The Supreme Court has reaffirmed this framework
repeatedly. See, e.g., Rompilla v. Beard, 545 U.S. 374, 380-
81 (2005); Wiggins v. Smith, 539 U.S. 510, 521 (2003).
  Because this case reaches us as a collateral attack from
a state court conviction, we do not apply Strickland
directly. Our consideration is mediated by the standards
set forth in 28 U.S.C. § 2254(d)(1) (“AEDPA”), under which
a federal court may issue a writ of habeas corpus only
if the state court reached a decision that was either
contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme
Court. See Williams v. Taylor, 529 U.S. 362, 404-06 (2000).
Here, it is the Illinois Appellate Court’s application of
Strickland to Raygoza’s claim that concerns us. This
requires us to ask, as the Supreme Court held in Williams,
“whether the state court’s application of clearly estab-
No. 05-2340                                                9

lished federal law was objectively unreasonable.” 529 U.S.
at 409. As we have noted before, to be unreasonable is
more than to be incorrect in some absolute sense of the
term. It means instead a conclusion “lying well outside
the boundaries of permissible differences of opinion.”
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002).
With both the standards established by Strickland and
the restrictions imposed by AEDPA in mind, we turn to
the merits of Raygoza’s arguments.


                            III
  It is counsel’s performance as a whole that matters, and
so it is to that we turn. As an abstract matter,
Brandstrader was surely correct to think that it is hard
to win on an alibi defense. He may also have been cor-
rect to conclude that a defendant is in a weak spot if the
only alibi witness he can offer is his mother, or perhaps
just a mother and a girlfriend. But generalities fall away
when we are dealing with an “n” of one: it is the facts
of the particular case, and the particular alibi defense,
that matter. And here, counsel’s general impressions
about alibi defenses affected both his preparation for
trial and his presentation of Raygoza’s case at trial, all to
Raygoza’s detriment.
  Had Brandstrader gleaned the information from Maria
about the evening party that was easily available for the
asking, he would have learned that this was not a case
where only the mother was willing to vouch for a defen-
dant’s alibi. To the contrary, witnesses both related
and unrelated to Raygoza could have been called. A
consistent story from all of them would have forced the
trier of fact to confront the possibility that Raygoza had
been mistaken for another young Hispanic male with a
blond ponytail. Perhaps the prosecutor would have re-
sponded by attempting to impeach the alibi witnesses’
10                                            No. 05-2340

testimony with the “timeline” that Morgan created for
Gavin. The idea there was that the timeline (which was
created for Gavin and which covered the 20-month period
from October 1996 through June 1998) was a “script” for
the alibi witnesses for the night of June 4, 1997. Quite a
few inferences must be drawn before that timeline de-
stroys the testimony of all or most of the alibi witnesses,
however, even if (as the trial judge remarked), the events
of June 4 were recorded in “excruciating” detail. It is
certainly not such strong rebuttal evidence that our
confidence in the outcome of Raygoza’s trial is restored
because of it.
  In a first-degree murder trial, it is almost impossible
to see why a lawyer would not at least have investigated
the alibi witnesses more thoroughly. As the Supreme
Court said in Strickland, “strategic choices made after
less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments
support the limitations on investigation.” 466 U.S. at 690-
91. Perhaps Brandstrader had formed an opinion about
Raygoza’s guilt in his own mind and thought that an
alibi would be futile. This, however, would hardly distin-
guish him from legions of defense counsel who undoubt-
edly do the same every day, yet who conscientiously
investigate their clients’ cases before coming to a final
decision about trial strategy. At the post-conviction
hearing, Brandstrader’s explanations for his decision not
to call any of the seven additional alibi witnesses
Raygoza’s new counsel identified were reminiscent of the
children’s verse “And then there were none.” Maria was
Raygoza’s mother; Vincent, Crystal, and Luis were
minors; Cordova could not be specific enough; Wendy
Morgan and Rodney Adams might have been impeached
by their relationship with Gavin. Even if, however, each of
these witnesses might have had vulnerabilities in cross-
examination, Brandstrader does not seem to have consid-
No. 05-2340                                               11

ered what impact they would have cumulatively. Instead,
he picked off each one and wound up leaving Raygoza (as
the prosecutor pointed out) with no one but his girlfriend
to corroborate his account.
  Although we do not lightly conclude that a state court
has unreasonably applied controlling Supreme Court law,
we note that the inquiry we must conduct is an objective
one. As the Supreme Court wrote in Williams v. Taylor,
supra,
    a federal habeas court making the “unreasonable
    application” inquiry should ask whether the state
    court’s application of clearly established federal law
    was objectively unreasonable. The federal habeas
    court should not transform the inquiry into a subjec-
    tive one by resting its determination instead on the
    simple fact that at least one of the Nation’s jurists has
    applied the relevant federal law in the same manner
    the state court did in the habeas petitioner’s case. The
    “all reasonable jurists” standard would tend to mis-
    lead federal habeas courts by focusing their attention
    on a subjective inquiry rather than on an objective one.
529 U.S. at 409-10. The fact that our inquiry must be
objective has another consequence that is important in
cases like this one, where the original state trial judge
also presided over the post-conviction (or here, new trial)
proceeding. It means that we cannot accept as conclusive
the judge’s statement that the new evidence would not
have made any difference to the outcome of the case. See
Hall v. Washington, 106 F.3d 742, 752 (7th Cir. 1997)
(holding that even when a judge who presided over the
original trial asserts in a post-conviction proceeding that
“[petitioner]’s additional evidence would not have changed
his mind . . . [t]his cannot, however, be conclusive”). That
said, we naturally give great weight to the judge’s assess-
ments, particularly on matters relating to the credibility
12                                               No. 05-2340

of the witnesses who appeared. In the end, however, we
have an obligation to take a fresh look at the case and
apply the standards set forth in AEDPA.
  An objective inquiry into the basis for the court’s guilty
verdict in Raygoza’s original trial reveals that the trial
judge was heavily influenced by Raygoza’s lack of evidence
supporting his alibi. The judge highlighted the fact that
“defense presents one witness, the girlfriend. . . . Her
testimony is certainly one of a biased witness. . . . I don’t
have any trouble saying I don’t believe that testimony at
all.” The judge then pointed to the testimony of the prosecu-
tion’s three witnesses, comparing the original two sets of
witnesses in the course of reaching his guilty verdict. At
the conclusion of the hearing on the motion for a new trial,
the judge summarized the problems he saw with each of
the additional witnesses. He did not, however, pay par-
ticular attention to the possibility that in the aggregate,
they may have provided powerful evidence for Raygoza’s
alibi, even though individually each one might have been
impeached. In short, the record shows that the lack of
credible alibi witnesses was a significant, if not dispositive,
factor in both the original guilty verdict and the denial of
the motion for new trial. That makes this case similar to
Stanley v. Bartley, 465 F.3d 810 (7th Cir. 2006), in which
we found that a lawyer’s failure to interview and call
substantially all of the available alibi witnesses resulted
in a performance that did not meet the minimum standard
guaranteed by the Sixth Amendment. Id. at 813. As we
did there, we conclude here that Raygoza did not receive
constitutionally adequate representation.
  Raygoza is not entitled to relief, however, unless he also
can establish that he was prejudiced by his attorney’s
deficient performance. In order to do so, he must “show
that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceed-
ing would have been different. A reasonable probability is
No. 05-2340                                              13

a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. We find this test
met as well, even taking into account both the AEDPA
standard of review and the fact that the trial judge
subjectively believed that the array of additional alibi
witnesses would not have swayed his judgment. The
State’s case against Raygoza was not particularly strong.
The only evidence apart from the suppressed confession
linking him to the crime was eyewitness identification
from rival gang members John Ribota, Hugo Munoz, and
Leo Dorado, and a passerby who did not see the shooter’s
face but was able to give a general description of the
clothing the perpetrators were wearing as they fled from
the pizzeria. (As we noted recently, social science research
has revealed serious problems with eyewitness testimony
from a stranger, when it is based only on a fleeting
glance. See United States v. Brown, 2006 WL 3720245, *1-
2 (7th Cir. Dec. 19, 2006). We do not know here whether
the shooter was a stranger or Raygoza; the witnesses,
however, were nothing like the trained law enforcement
officers whose identification we found reliable in Brown.)
There was nothing so distinctive about Raygoza’s clothing
to allow the witnesses to rule out countless other suspects.
On the other side, Raygoza’s alibi witnesses included
both family members and unrelated people; their stories
were corroborated by telephone records and train tickets.
Obviously, a trier of fact approaching the case with fresh
eyes might choose to believe the eyewitnesses and to reject
the alibi evidence, but this trier of fact never had the
chance to do so. This undermines our confidence in the
outcome of the proceedings so seriously that we con-
clude that there is a reasonable probability that the result
would have been different had Raygoza’s attorney pre-
sented the testimony of all or most of his alibi witnesses.
14                                             No. 05-2340

                            IV
   We note, prior to concluding, that Raygoza has also
argued that his trial counsel was ineffective for failing to
conduct a better cross-examination of Jennifer Calatayud.
If this had been counsel’s only slip, we would have found
no reason to criticize the Illinois courts’ application of
the Strickland test. Under the circumstances, however,
we see no need to analyze this argument separately: we
have found that counsel’s performance taken as a whole
was deficient, and we have found that Raygoza was
prejudiced as a result. Although the Illinois courts identi-
fied the correct governing Supreme Court cases, their
application of that law was objectively unreasonable. We
therefore REVERSE the judgment of the district court. The
writ of habeas corpus is GRANTED unless the State of
Illinois elects to retry Raygoza within 120 days of issuance
of this Court’s final mandate, or of the Supreme Court’s
final mandate.




  BAUER, Circuit Judge, dissenting. I respectfully dissent.
  I cannot agree that the Illinois Courts, particularly the
opinion of the Illinois Appellate Court, was wrong, either
by State or Federal standards. And that, I believe, keeps
us from second guessing. I would affirm the district court’s
denial of the writ. The recitation of the facts and the
rulings are sufficiently outlined in the majority opinion
and that of the state trial court, appellate court, and
the district court to make any further discussion unneces-
sary for purposes of this dissent.
No. 05-2340                                        15

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—1-25-07
