Montgomery v. Petersen

• Decision Date: 04 May 1988
• Docket Number: No. 87-2302,87-2302
• Parties: Carl William MONTGOMERY, Petitioner-Appellee, v. Dale PETERSEN, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 407

846 F.2d 407

Carl William MONTGOMERY, Petitioner-Appellee, v. Dale PETERSEN, Respondent-Appellant.

No. 87-2302.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 1987.

Decided May 4, 1988.

Nathan P. Maddox, Ill. Atty. Gen. Office, Springfield, Ill., for respondent-appellant.

William E. Harris, Springfield, Ill., for petitioner-appellee.

Before CUDAHY, COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Carl Montgomery petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He challenged the constitutionality of his state conviction for residential burglary on the ground that he was denied the effective assistance of counsel guaranteed by the sixth amendment. The Honorable Richard Mills of the Central District of Illinois reviewed the petition and granted the writ. The state appeals. We agree with Judge Mills that the petitioner was denied effective assistance of counsel and therefore affirm.

I BACKGROUND

A. Facts

The petitioner was arrested and charged with the commission of two separate burglaries occurring on the same day, one in Moultrie County, Illinois and the other in Macon County, Illinois. He was tried in Moultrie County in March 1984. The jury found him guilty, and he received a seven-year prison sentence. In April 1984, following the Moultrie County conviction, the petitioner was tried in Macon County for the second offense. The Macon County jury acquitted the petitioner. The only difference between the evidence presented in the two trials was the testimony--presented in the Macon County trial but not in the Moultrie County trial--of a disinterested witness who placed the petitioner in Springfield on the day of the burglaries. The following is a brief synopsis of the testimony at both trials taken from the state appellate court opinion in Mr. Montgomery's post-conviction petition for a new trial: ¹

Testimony at the Moultrie County trial held on March of 1984 was elicited as follows: The State's first and primary witness, defendant's half-brother Wayne (Butch) Montgomery, testified that the defendant drove down from Springfield and met him at his father's cabin in Beardstown at about 8:30 or 9:00 the morning of September 9, 1983. The two men discussed a possible burglary in Arcola. Wayne's wife, Mary Lou, was present during part of that discussion. She later testified that she overheard their burglary plans, and that she observed the two men drive away in defendant's car. Wayne stated that he and the defendant later drove around, but abandoned their Arcola burglary plans because too many people were present in the area. Instead, they eventually burglarized a home in Moultrie County and a home in Macon County. They then drove back to defendant's residence in Springfield Wayne also testified that he pleaded guilty to this burglary as well as others, but he did not expect to gain any favoritism based on his testimony in the present case. On cross-examination, Wayne admitted that he had prior convictions for burglary and battery.

arriving there about 8:30 or 9:00 that evening. At this point, defendant made several telephone calls to two people, John Mardis and Orville Bartells, whom he and his half-brother though [sic] might be able to "move" the merchandise. According to Wayne Montgomery, he and defendant drove to the home of Orville Bartells in Chandlerville, leaving around 10:00 p.m.

Defendant's brother Dale Montgomery and his girlfriend Betty Simons both testified that they were at defendant's Springfield residence the evening of September 9, 1983, when they observed defendant and Wayne arrive at the house together. Dale and Betty stated they left defendant's home at about 9:00 p.m.

An exhibit was admitted into evidence containing a record of telephone calls made from the defendant's home the night of September 9. The itemized phone bill listed long-distance calls made to Mardis' home at 9:33 and 9:50 p.m., and a phone call to Bartells' residence at 9:43 p.m. The phone bill also showed numerous other calls made to these two people over a period of time; defendant stated they were his friends.

Defendant's wife, Carol Montgomery, testified for the defense. She stated that the events of September 9, 1983, stuck out in her mind because it was their son's birthday. She stated that she and defendant went to the Sears store in Springfield that afternoon to purchase a bicycle as a present for their son. She also testified that defendant was around the house most of the day working on a car. She further stated that a group of family and friends came to the house that evening for a birthday party. She denied that Dale Montgomery and Betty Simons had stopped by the evening of September 9, recalling that they came over the next night instead.

In all, some 12 witnesses testified on behalf of the defendant that they had observed him in and around Springfield September 9. Many also testified that they were present for the birthday party in the evening, but that Wayne Montgomery, Betty Simons, and Dale Montgomery were never at the defendant's home. Significantly, all of these witnesses were either relatives or close friends of the defendant's family.

At the conclusion of all the evidence, the jury found the defendant guilty of residential burglary. This court affirmed his conviction on appeal.

During the Macon County trial in April of 1984, Barry Holtkamp, a Sears employee in the Springfield store, was called to testify. He stated that defendant and his wife had purchased a bicycle from him at about 1:15 or 1:30 the afternoon of September 9, 1983. Holtkamp testified that he remembered the defendant because it was the only bicycle sale he made that day. Holtkamp further recalled that defendant had joked about the bike being "junk," but because it was cheap, he would buy it anyway.

People v. Montgomery, 141 Ill.App.3d 428, 95 Ill.Dec. 733, 736-37, 490 N.E.2d 206, 209-10, cert. denied, --- U.S. ----, 107 S.Ct. 224, 93 L.Ed.2d 151 (1986).

B. Procedural History

After the Appellate Court of Illinois affirmed his Moultrie County conviction on direct appeal, People v. Montgomery, 125 Ill.App.3d 1175, 89 Ill.Dec. 817, 481 N.E.2d 368 (Ill.App.Ct.1984), Mr. Montgomery filed a state petition for post-conviction relief. In this petition, he raised for the first time a claim of ineffective assistance of counsel. A hearing on the petition was held before the Moultrie County circuit court on April 8, 1985. The transcript of the Sears clerk's Macon County trial testimony was introduced. In addition, G. Ronald Kesinger, the petitioner's counsel for both trials, testified that

defendant and his wife had given him a receipt for the Sears purchase on September 9 and requested he investigate "I was given just a receipt. I wasn't given a name so I didn't know who to interview until I found out who the witness was. But at that point, I simply didn't believe the defendant so I didn't think it happened."

this potential witness, but that he failed to do so. Kesinger stated this was merely due to "inadvertence" on his part, as he was busy interviewing other potential witnesses. Kesinger further stated:

Kesinger noted that the sales receipt had an employee code number on it, which defendant's wife and mother-in-law, on their own initiative, used to locate the witness.

Montgomery, 95 Ill.Dec. at 737, 490 N.E.2d at 210. Upon hearing all testimony, the trial court denied relief. Mr. Montgomery subsequently filed a motion for reconsideration that also was denied.

Mr. Montgomery then appealed. The Appellate Court of Illinois held that the totality of the circumstances did not support a finding of attorney incompetence and affirmed the state trial court's denial of the petition. Id. 95 Ill.Dec. at 738, 490 N.E.2d at 211. The court stressed that Mr. Kesinger interviewed several potential witnesses in preparing a defense and, in fact, put on twelve alibi witnesses: "Mindful of the admonition that attorney performance should not be distorted by the benefit of hindsight, we fail to see how the addition of one more witness would, as a reasonable probability, have changed the outcome of the trial." Id. Commenting on the different outcomes of the Macon County and Moultrie County trials, the court stated that: "Any number of trial factors may have differed beyond the addition of Holtkamp's testimony, including the attitudes of the jurors and the relative credibility of the witnesses. Indeed, all trials are sui generis--no two may be presented in exactly the same manner." Id. (citing People v. Gharst, 122 Ill.App.3d 1, 77 Ill.Dec. 509, 512, 460 N.E.2d 813, 816 (1984)). In this state post-conviction appeal, Mr. Montgomery was represented by the same counsel who represented him in both the Moultrie County trial and the Macon County trial. Id. 95 Ill.Dec. at 735, 490 N.E.2d at 208. ² The Appellate Court of Illinois, in its opinion, remarked: "We appreciate the candor of counsel in pursuing this matter and giving his opinion as to his own incompetence." Id. 95 Ill.Dec. at 739, 490 N.E.2d at 212. On June 3, 1986, the Illinois Supreme Court denied the petitioner leave to appeal. Following the Illinois courts' denial of a state remedy and the United States Supreme Court's denial of certiorari, Montgomery v. Illinois, --- U.S. ----, 107 S.Ct. 224, 93 L.Ed.2d 151 (1986), the petitioner sought federal habeas relief in the district court.

II DISTRICT COURT OPINION

Judge Mills began his analysis of the ineffective assistance issue with an explication of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court set out a two-prong test for evaluating an ineffective assistance of counsel claim. The first prong requires the reviewing court to examine the performance of counsel. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth...