219 F.3d 620 (7th Cir. 2000), 99-2383, Washington v. Warden

Docket Nº:99-2383
Citation:219 F.3d 620
Party Name:Vonaire T. Washington, Petitioner-Appellee, v. Judy Smith, Warden, Oshkosh Correctional Institution, Respondent-Appellant.
Case Date:July 06, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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219 F.3d 620 (7th Cir. 2000)

Vonaire T. Washington, Petitioner-Appellee,


Judy Smith, Warden, Oshkosh Correctional Institution, Respondent-Appellant.

No. 99-2383

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

July 6, 2000

Argued February 24, 2000

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

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[Copyrighted Material Omitted]

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 Washington appealed, and the Wisconsin Court of Appeals affirmed his conviction in an unpublished opinion.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

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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. 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.

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]

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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 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

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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...

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