467 F.3d 1022 (7th Cir. 2006), 04-3946, Goodman v. Bertrand

Docket Nº:04-3946.
Citation:467 F.3d 1022
Party Name:Warren GOODMAN, Petitioner-Appellant, v. Daniel BERTRAND, Warden, Respondent-Appellee.
Case Date:October 31, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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467 F.3d 1022 (7th Cir. 2006)

Warren GOODMAN, Petitioner-Appellant,


Daniel BERTRAND, Warden, Respondent-Appellee.

No. 04-3946.

United States Court of Appeals, Seventh Circuit.

October 31, 2006

Argued December 9, 2005

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00-C-0650—Patricia J. Gorence, Magistrate Judge.

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Robert R. Henak (argued), Milwaukee, WI, for Petitioner-Appellant.

William L. Gansner (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Fourteen years ago, an individual entered a Milwaukee convenience store, robbed the store's manager and cashier at gunpoint, and then fled in a getaway car. After a first trial ended in a hung jury, a second jury convicted Warren Goodman of armed robbery and being a felon in possession of a firearm, and he was sentenced to twenty-two years' imprisonment. Having exhausted his state court remedies, Goodman petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the effectiveness of his counsel during the second trial. The United States District Court for the Eastern District of Wisconsin denied relief. Unlike the district court, we find, under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), that the state court decision was contrary to the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further, we conclude, under AEDPA, that the state court decision was an unreasonable application of Strickland because the cumulative effect of counsel's errors constituted ineffective assistance of counsel. Therefore, we reverse the judgment of the district court and remand for the entry of an order granting the writ.


On July 28, 1992, an individual robbed Kohl's Food Store, a convenience store in Milwaukee, holding the store's cashier, Ilene Retzlaff, and manager, Daniel Kollath,

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at gunpoint. After the two complied with the gunman's demands, the assailant fled in a getaway car, driven by an accomplice. Blocks later, the men switched to a second getaway car that was driven by a third accomplice. Later that day, police stopped Mark Smith and Larry Ross, who were riding in a car matching the description of the second getaway car. Police retrieved two handguns and $200 from the car.1 Smith eventually confessed that he acted as a lookout in the robbery, and fingered Ross as an accomplice. Smith also brokered a deal with prosecutors in which, in exchange for more lenient punishment, he implicated Goodman. In a lineup, the store manager Kollath initially identified another person as the robber, but in a subsequent lineup he chose Goodman. The store cashier, Retzlaff, did not pick Goodman from the lineup, instead choosing another individual as the person who most resembled the robber.

A. Goodman's first and second trials

The case against Goodman went to trial twice. In each instance, the facts of the robbery were essentially undisputed; only the identification of Goodman as the perpetrator was at issue. In the first trial, confessed-lookout Smith and store manager Kollath both testified that Goodman robbed the store. The store cashier testified that she could not identify Goodman as the robber and that she chose another person from the police lineup. Goodman also testified on his own behalf. The court declared a mistrial after the jury was unable to reach a verdict.

Smith received six years' imprisonment for his role in the robbery, in exchange for his testimony in the first trial. Ross, who was serving a seventeen-year sentence for being the driver of the second getaway car, contacted the prosecution after the first trial and agreed to testify against Goodman at the retrial and to identify the driver of the first getaway car, in exchange for a recommendation to reduce his sentence. Ross later named Percy Sallis, who confessed that he was the first getaway car driver.

At the second trial, Goodman was represented by a different lawyer. Kollath, as well as confessed accomplices Smith, Ross, and Sallis, all testified that Goodman committed the robbery. Unlike the first trial, the store's cashier, Retzlaff, did not testify because she was on vacation and Goodman's lawyer failed to subpoena her. Goodman's counsel erroneously believed that a subpoena was unnecessary because the government would call Retzlaff as a witness. Because Goodman's counsel failed to demonstrate that Retzlaff was unavailable to testify in person, the trial court excluded portions of her prior testimony from the second trial. So in the second trial, four witnesses, including the three accomplices, identified Goodman as the robber, and Retzlaff was not present to testify.

Other problems arose for Goodman's counsel during the course of the second trial. On direct examination, Goodman's counsel asked Goodman a question that ultimately led the court to allow cross-examination on two of Goodman's previous armed robbery convictions.2 As the parties

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had earlier stipulated to Goodman's status as a convicted felon, in the normal course of proceedings the prosecution would have been precluded from raising the nature of the prior felonies.

In addition, prosecution witnesses Mark Smith and Larry Ross testified regarding threats they received concerning their participation in the Goodman trial. While the witnesses acknowledged that the threats were not made by Goodman, nor was he was present when they were made, the witnesses claimed that the threats were intended to prevent them from testifying against Goodman. Goodman's counsel objected, asserting that the witnesses' testimony impermissibly linked Goodman to the threats in the minds of the jurors. The trial court admitted the testimony on limited grounds, stating, outside the presence of the jury, that such testimony would reflect the witnesses' credibility by demonstrating that they had something to lose as well as something to gain by testifying. Goodman's counsel later failed to request a jury instruction explaining to the jury the limited manner in which they could use the testimony.

In addition, Goodman's counsel did not object after the prosecution made misleading statements on direct examination indicating that the state had not given Ross any reason to testify, when in fact Ross had agreed to do so in the hopes of receiving a reduced sentence. During closing argument the prosecutor also made false statements improperly bolstering Sallis's testimony by stating that Sallis could not have been charged or convicted without his voluntary confession while omitting the fact that Ross had named Sallis as an accomplice before Sallis confessed. Goodman's counsel did not object or request a mistrial.

The jury ultimately found Goodman guilty, and he was sentenced to twenty-two years for the robbery and for being a felon in possession of a firearm during its commission. For his testimony and at the government's recommendation, Ross's initial seventeen-year sentence was later reduced to twelve years. Sallis received probation, conditioned on six months of work release, for his part in the robbery.

B. Post-conviction proceedings

After his conviction, Goodman sought relief in state court. Goodman argued that, in violation of the Sixth Amendment, his second trial counsel was ineffective for (1) opening the door to cross-examination on Goodman's two prior convic- tions for armed robbery, (2) failing to procure copies of government witnesses' prior inconsistent testimony, (3) failing to subpoena the store's cashier to testify, and (4) being generally unfamiliar with the case. The trial court denied the motion. The Wisconsin Court of Appeals affirmed stating as follows:

[W]e, like the trial court, conclude that the record conclusively establishes that Goodman was not prejudiced within the meaning of Strickland. . . . In order to show prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional

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errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The Strickland test is not an outcome-determinative test. In decisions following Strickland, the Supreme Court has reaffirmed that the touchstone of the prejudice component is whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.

The court concluded that, even if his counsel's performance was deficient, Goodman's Sixth Amendment claim failed because "none of Goodman's counsel's alleged deficient conduct prejudiced him such that the result of the trial was unreliable."3

Goodman then presented his Sixth Amendment claim in a state habeas petition pursuant to Wis. Stat. § 974.06 and argued that his trial counsel was ineffective for (1) failing to request a limiting instruction regarding the testimony of threats, (2) failing to object regarding the denial of his right to confront witnesses against him, and (3) failing to object to prosecutorial misconduct during closing arguments. The trial court denied relief, and the appellate court affirmed. The Wisconsin Supreme Court denied habeas review.

Following these adverse rulings in state court, Goodman timely filed his federal habeas petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Wisconsin. Goodman maintained that, during direct appeal, the state court erred...

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