219 F.3d 620 (7th Cir. 2000)
Vonaire T. Washington,    Petitioner-Appellee,v.Judy Smith, Warden,   Oshkosh Correctional Institution,  Respondent-Appellant.
No. 99-2383
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 24, 2000Decided July 6, 2000

Appeal from the United States District Court   for the Eastern District of Wisconsin.  No. 97-C-0424--Lynn Adelman, Judge. [Copyrighted Material Omitted]
Before Posner, Chief Judge, Cudahy and Evans,  Circuit Judges.
Cudahy, Circuit Judge.


1
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 Washington  appealed, and the Wisconsin Court of Appeals  affirmed his conviction in an unpublished  opinion.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.


2
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

3
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. Johnson1--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.


4
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.


5
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

6
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.


7
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.


8
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  Brown4 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.


9
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.


10
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

11
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.


12
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.


13
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:


14
Q: Now, in your preparing for this case, did you  read those two pages [of the police report]?


15
A: I did but I couldn't make out too much of what  it said because the writing is bad.    . . .


16
Q: Did you do anything to attempt to decipher the  handwriting that you find difficult to read?


17
A: I deciphered it as best I could.


18
Q: Do you feel you understand or were able to  understand the contents of that statement by Mr.  Lobly [sic]?


19
A: Not very much.    . . .


20
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?


21
A: That's right.


22
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.


23
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

24
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

25
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

26
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).


27
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.


28
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.


29
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 unreasonable5 before we can issue  a writ of habeas corpus. See id.


30
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

31
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.


32
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:


33
[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.


34
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.


35
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:


36
Q: Did [Washington] indicate to you why he thought  those fourteen people7 named there might be  important as witnesses in this case?


37
A: We didn't even have time to discuss it because  the trial started immediately thereafter.


38
Q: Did you request an adjournment based on this  potentially new information or new witnesses?


39
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.    . . .


40
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?


41
A: No.


42
Q: Did you discuss those names with him at all  during the breaks8 in the course of the trial?


43
A: No, I didn't.    . . .


44
Q: Did you ever ask him if those potential  witnesses had phone numbers that Mr. Washington  could provide to you?


45
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.


46
Q: In other words, you left it to your client to  try to get those witnesses to court?


47
A: There was no way I could have an opportunity to  contact them at that late time. I was busy trying  the case.


48
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.


49
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.


50
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

51
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.


52
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.


53
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 it9), its decision that Washington was not  prejudiced by Mr. Engle's unprofessional errors  involved an unreasonable application of that  standard.


54
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.


55
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.


56
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.


57
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.


58
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

59
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.



Notes:


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.


