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

No. 03-1611
WILLIE HARRIS,
                                              Petitioner-Appellant,
                                  v.


ZETTIE COTTON, Superintendent,
                                             Respondent-Appellee.

                            ____________
          Appeal from the United States District Court for the
          Northern District of Indiana, South Bend Division.
                  No. 02 C 323—Allen Sharp, Judge.
                            ____________
      ARGUED FEBRUARY 9, 2004—DECIDED APRIL 2, 2004
                     ____________



    Before BAUER, MANION, and EVANS, Circuit Judges.
  BAUER, Circuit Judge. Petitioner-Appellant brought
this action for a writ of habeas corpus claiming a Brady1
violation and ineffective assistance of counsel under
Strickland.2 We begin and end on the latter. The district
court denied the writ.




1
    Brady v. Maryland, 373 U.S. 83 (1963).
2
    Strickland v. Washington, 466 U.S. 668 (1984).
2                                                No. 03-1611

                      I. Background
  On February 4, 1993, Willie Harris and his wife started
to the home of Essie Johnson, a friend, to help her move
from the house which she shared with one Leslie Jones.
When Harris could not find Johnson’s house, he stopped at
a pay phone near a bar to get directions. While Harris was
on the phone, Leslie Jones came out of the bar, yelled at
Harris in a hostile manner, and intentionally bumped into
him. Harris and his wife walked away from this encounter
and headed to Johnson’s house. Unfortunately, Jones ended
up at the house too.
   At Johnson’s house Jones continued to make various hos-
tile remarks and began to harass Harris. Harris and his
wife tried to leave but their car would not start. When
Harris attempted to jump-start his car, Jones snatched the
cables from his hand and refused to give them back. The
altercation ended when Harris shot Jones in the head.
Jones died minutes later with the jumper cables in his hand
and a fully loaded handgun in his pocket. (The neigh-
borhood seems to be exciting, although safety is iffy, at
best.)
  The county coroner’s office performed an autopsy and
blood, bile, and urine were submitted for a toxicology report.
The report showed that Jones was under the influence of
alcohol and cocaine when he died. The toxicology report was
not sent to the prosecution nor disclosed to the Defendant.
Although he knew that such a report existed, the Defen-
dant’s attorney said that he failed to obtain the toxicology
report and that the failure was “an oversight.”
  During the trial, Harris attempted to question the pa-
thologist who performed the autopsy about Jones’s alcohol
use. The trial court refused to allow this line of questioning,
apparently because there was no evidence that the victim
was, or appeared to be, drinking or intoxicated.
No. 03-1611                                                 3

  A jury convicted Harris of murder and he was sentenced
to 40 years in prison. After exhausting his state remedies,
Harris filed the instant petition for a writ of habeas corpus.
The district court denied the petition.


                      II. Discussion
A. Standard of Review
  The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) governs our review of Harris’s petition for a
writ of habeas corpus. Under AEDPA, a writ is not available
on any claim that was adjudicated on the merits in state
court unless such adjudication resulted in a decision that is
contrary to, or involves, an unreasonable application of
clearly established federal law. 28 U.S.C. § 2254(d). “A rule
is ‘clearly established’ only if it is compelled by existing
Supreme Court precedent.” Henry v. Page, 223 F.3d 477,
480 (7th Cir. 2000). A state court decision results in an
“unreasonable application of clearly established federal law”
when that court “identifies the correct governing legal rule
from [Supreme Court precedent] but unreasonably applies
it to the facts of the particular state prisoner’s case.”
Williams v. Taylor, 529 U.S. 362, 407 (2000). We review the
mixed fact and law question of “contrary to” or “unreason-
able application” de novo. Henry, 223 F.3d at 480. We do,
however, give deference to a reasonable state court decision.
Anderson v. Cowan, 227 F.3d 893, 896-97 (7th Cir. 2000).


B. Ineffective Assistance of Trial Counsel
  The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to effective as-
sistance of counsel as discussed by the Supreme Court’s
decision in Strickland v. Washington, 466 U.S. 668, 686
(1984). A successful claim of ineffective assistance of
counsel under Strickland requires the defendant to make a
4                                                No. 03-1611

two-part showing. First, the defendant must show that
counsel’s performance fell below an objective standard of
reasonableness as determined by prevailing professional
norms. Strickland, 466 U.S. at 687-88. Second, the defen-
dant must show that the deficient performance of counsel
served to prejudice his defense. Id. at 687. Prejudice will be
found when there is a reasonable probability that, but for
the deficient performance of counsel, the outcome of the
proceeding would have been different. Id. at 694. A rea-
sonable probability is a probability sufficient to undermine
confidence in the outcome of the proceedings. Id.


    1. Ineffective Assistance of Trial-Counsel-Reasonable
       Performance
  Turning to the first prong of the Strickland test, whether
counsel’s performance fell below an objective standard of
reasonableness, we start with a presumption that choices
made by an attorney as to what evidence should be pre-
sented, what issues deserve the most focus, and so on, are
strongly presumed to be tactical decisions and therefore,
objectively reasonable. Id. at 689. In this case however,
Petitioner’s attorney admitted that his failure to obtain the
toxicology report was an “oversight” and that he had “no
explanation that could justify [his] not having [the toxi-
cology report].” (Supp. App. at 63.) While, an inadvertent
omission does not automatically equal constitutionally
deficient performance, Yarborough v. Gentry, 124 S. Ct. 1,
6 (2003), the Supreme Court has repeatedly held that a
failure to conduct a reasonable investigation may satisfy
the performance prong of Strickland, Wiggins v. Smith, 123
S. Ct. 2527, 2535 (2003); Williams, 529 U.S. at 371.
  Harris was charged with murder and his defense was self-
defense. The behavior of the victim was therefore extremely
important to Harris’s case.
  From the perspective of a defense attorney, an affirmative
defense of self-defense against a drunk and cocaine-high
No. 03-1611                                                 5

victim stands a better chance than the same defense
against a stone-cold-sober victim. Common sense tells us
that an individual under the influence of cocaine and
alcohol may look and act in a strange manner—an observa-
tion supported by expert testimony in the post-conviction
proceedings. Harris’s attorney was aware that Jones had
been drinking and was further aware that a toxicology re-
port had been requested. He also knew how to request the
report, as he had done so on other occasions. Finally, he
knew that the victim’s behavior prior to the shooting was
“critical, absolutely critical.” (Supp. App. at 54.) Counsel’s
subjective belief of the importance of evidence related to
Jones’s behavior is mirrored by the state court’s assertion
that “[u]ndoubtedly, Jones’ behavior was critical to Harris’
defense.” (App. at 12.) Therefore, it is clear that Harris’s
attorney should have the toxicology report for use at trial.
Because his failure to obtain and present the report was a
mistake, and not a calculated strategic decision, we find
that his performance fell below the objective standard of
reasonableness required by Strickland.


  2. Ineffective Assistance of Trial-Counsel-Prejudice
  Having established the first prong of the Strickland
test, Harris must now show that, but for counsel’s deficient
performance, there is a reasonable probability that the
outcome of the proceeding would have been different.
Strickland, 466 U.S. at 687. Under relevant state law, a
“person is justified in using reasonable force against an-
other person to protect [himself] from what [he] reasonably
believes to be the imminent use of unlawful force.” Ind.
Code § 35-41-3-2(a). To sustain a claim of self-defense, the
jury must find that a reasonable person in the shoes of the
defendant would have felt fear or apprehension of death or
great bodily harm. Shepard v. State, 451 N.E.2d 1118 (Ind.
Ct. App. 1983). Under such a standard, it is clear that the
victim’s behavior is extremely relevant.
6                                                  No. 03-1611

  The state court decision points out that evidence of
Jones’s behavior prior to the shooting was admitted into
evidence; “[h]owever, with the exception of Harris’ claim
that Jones was pulling a gun on him, there was no dispute
as to the behavior of Jones.” (App. at 20.) That court further
stated, “[t]he presence or absence of alcohol and drugs in
Jones’ system does not change the testimony concerning
Jones’ behavior that evening.” (App. at 20). While it is true
that the evidence does nothing to change the substance of
the testimony regarding Jones’s behavior, it creates, in the
words of the dissenting state court judge, a “ ‘reasonable
probability’ that [the jurors’] collective perception regarding
Harris’ conduct would have changed.” (App. at 15.)
The state court majority said it slightly differently when
it said, “[h]ad the jurors known of Jones’ blood alcohol
level and his use of cocaine, they may have credited Harris’
claim of Jones’ hostile and erratic behavior.” (App. at 12.)
Finally, as Harris states in his brief to this court, “[t]he fact
that Jones had been drinking and using cocaine is evidence
that his behavior at the time was altered and erratic. That
evidence directly corroborates Harris’s contentions about
how he perceived Jones’s behavior at the time.” (Br. of
Petitioner-Appellant at 31.) Clearly, the state court and the
Petitioner were on the same page as to what effect the
failure to obtain and present the toxicology report might
have had on the jury’s credibility findings. Despite this
agreement, they do not agree as to whether such an effect
is sufficient to create prejudice under Strickland.
  We recognize, as did the state court, that there is little or
no evidence which goes to show that Harris knew that Jones
was under the influence of cocaine and alcohol. We do not
however find such a distinction dispositive. In fact, the lack
of evidence admitted regarding Jones’s state of intoxication
leads to the opposite conclusion than the one arrived at by
the state court. When defense counsel tried to question the
No. 03-1611                                                        7

coroner3 as to whether Jones’s body smelled of alcohol, his
line of questioning was disallowed. Therefore, the jury was
left with the impression that the decedent was not intoxi-
cated when, in fact, he was quite inebriated. If the jury
believed that Jones was sober, there is a reasonable
probability that they would not have believed Harris’s
version of events as it related to Jones’s behavior.
  We find that there is a reasonable probability that
the outcome of the proceedings would have been different
if the toxicology results were presented. Harris’s Sixth
Amendment right to effective assistance of counsel was
violated.
  The Indiana state court identified the correct legal
standard—that of Strickland—but unreasonably applied it.
Despite recognizing the critical importance of the victim’s
behavior, the state court did not find prejudice. Our analy-
sis of their opinions leads us to believe that the court failed
to apply the “reasonable probability” standard despite citing
to that standard.


                        III. Conclusion
  We find that Harris’s right to effective assistance of trial
counsel was violated. We further find that the state court’s
treatment of Harris’s Strickland claim constitutes an un-
reasonable application of clearly established federal law.
We REVERSE the denial of the writ by the district court and
REMAND with directions to grant the writ unless the State
elects to retry the Defendant within 120 days.




3
  The coroner performed the autopsy itself. That office was not
responsible for testing the blood, bile, and urine for intoxicants
and thereafter, generating a report as to the findings of such tests.
8                                        No. 03-1611

A true Copy:
      Teste:

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




               USCA-02-C-0072—4-2-04
