948 F.3d 896 (7th Cir. 2020), 18-2214, Cook v. Foster
|Citation:||948 F.3d 896|
|Opinion Judge:||Wood, Chief Judge.|
|Party Name:||Terez COOK, Petitioner-Appellant, v. Brian FOSTER, Warden, Respondent-Appellee.|
|Attorney:||Erin M. McGinley, Attorney, JONES DAY, Chicago, IL, Parker Andrew Rider-Longmaid, Esq., Attorney, Eric Cheung Hall, Attorney, Sarah Levine, Attorney, JONES DAY, Washington, DC, for Petitioner-Appellant. Daniel J. OBrien, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Madison, WI, fo...|
|Judge Panel:||Before Wood, Chief Judge, and Barrett and Scudder, Circuit Judges.|
|Case Date:||January 29, 2020|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Argued October 3, 2019
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Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CV-989 — Nancy Joseph, Magistrate Judge
Erin M. McGinley, Attorney, JONES DAY, Chicago, IL, Parker Andrew Rider-Longmaid, Esq., Attorney, Eric Cheung Hall, Attorney, Sarah Levine, Attorney, JONES DAY, Washington, DC, for Petitioner-Appellant.
Daniel J. OBrien, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Madison, WI, for Respondent-Appellee.
Before Wood, Chief Judge, and Barrett and Scudder, Circuit Judges.
Wood, Chief Judge.
Federal courts do not lightly grant petitions for a writ of habeas corpus brought by state prisoners. As the Supreme Court put it in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), if the "standard [for relief] is difficult to meet, that is because it was meant to be." Id. at 102, 131 S.Ct. 770. Nonetheless, "difficult" does not mean "impossible," as the Court reaffirmed in Richter : "The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law." Id. at 91, 131 S.Ct. 770. Our task in the present case is to decide whether petitioner Terez Cook demonstrated that Wisconsins court of appeals unreasonably assessed his contention that he did not receive the effective assistance of counsel guaranteed by the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court thought that Cooks showing fell short, but we conclude that he is entitled to relief. We therefore reverse.
Cooks criminal case arose out of a home invasion that took place in Peshtigo, Wisconsin, in May 2005. The state charged Cook and another man, John Egerson, with armed robbery, armed burglary, false imprisonment, battery, theft, and mistreatment of an animal causing death. The jury convicted Cook on all counts, as a party to the crimes and as a repeat offender. Throughout these proceedings Cooks basic contention has been that the state identified the wrong man as Egersons accomplice.
We begin with an overview of the trial, to provide a framework for the particular ways in which Cook contends that he received constitutionally ineffective assistance of counsel. We then address each error individually, and finally we consider whether, taken as a whole, they add up to a Sixth Amendment violation.
First, we provide the cast of key characters: • Terez Cook: defendant accused of the home-invasion crimes; possibly the same person as "BN" or "Rex"
• John Egerson: co-defendant, tried separately and convicted
• Ashley Sadowski: Egersons girlfriend and accomplice to the home-invasion crimes
• Jessica Babic: Sadowskis friend, and accomplice to the home-invasion crimes
• David Hall: long-time friend of Egerson, and also friends with Sadowski, Babic, and an ex-boyfriend of the victims daughter; Cook alleges that Hall, not he, was Egersons accomplice.
• Stacy Thede: Cooks girlfriend
• Jimmy and Margaret Harper: the victims
The events underlying this case unfolded as follows. Egerson and Sadowski believed that there was marijuana in the Harpers garage, and they wanted to steal it. Around midnight on May 22, 2005, Sadowski and Babic met up with Egerson and Cook. At 2:30 a.m. or so Sadowski, Babic, Egerson, and another man (Cook or "Rex," according to the state; Hall, according to Cook) went to Walmart; there, at Egersons urging, Sadowski and Babic bought gloves, bandanas, and duct tape. So equipped, Sadowski drove Egersons car past the Harpers home; she tapped the brakes when she reached the front of the house in order to signal to the men, who were following in Sadowskis car, which house to target. The women then waited nearby for the men to do the job.
Around 4:00 a.m., Egerson called Sadowski and told her that he had crashed her car after stealing cash and speakers from the Harpers home. The women picked up Egerson and his companion and drove to a hotel in Green Bay. About six hours later, Egerson dropped Sadowski and Babic (but not Cook, it seems, who disappears at that point from the states story) at a gas station in Peshtigo. The women called Hall for a ride to Babics house. There they were greeted by the police, who arrested Hall and took the women into custody for questioning. After initially denying any involvement in the crime, Sadowski and Babic admitted their involvement and named Egerson as one of the robbers.
Putting together evidence from these interviews, along with cell tower evidence, the state obtained an information charging Cook and Egerson with the crimes. They were tried separately, though by the same judge. In a trial that the presiding judge later characterized as unworthy of confidence, the jury convicted Cook and the judge sentenced him to 40 years in prison and 18 years of extended supervision. His conviction was affirmed on direct appeal in the Wisconsin courts. At that point Cook (acting pro se ) filed a petition for postconviction relief pursuant to Wis. Stat. § 974.06; in it, he alleged ineffective assistance of his trial counsel, Alf Langan, and his appellate counsel, Milton Childs. The court appointed postconviction counsel for Cook and ultimately held evidentiary hearings over the course of three days. It concluded that Cooks motion had to be granted because of the cumulative effect of trial counsels many missteps. In so ruling, the court stressed the exceptional nature of the case: You know, Ive been on the bench 20 years, and I cant remember ever granting a new trial because of ineffective assistance of counsel. It may have happened, but I cant as I sit here today recall. Its a heavy decision. I understand that.
Ive given it a lot of thought. And the bottom line is that the deficiencies are so big that I would have to conclude if it had been tried correctly, that theres a probability of a different result and that confidence of the Court has been shaken as to the results because of the deficient performance.
Doc. 62-10 at 153-54.
The state appealed from the trial courts decision, and the Wisconsin Court of Appeals reversed. Cook then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, which a magistrate judge, proceeding by consent of the parties under 28 U.S.C. § 636(c), denied. Despite its conclusion that the state appellate court, in resolving some of Cooks claims, had unreasonably applied Strickland or unreasonably determined the facts, the district court thought that there was enough to squeak by under the deferential standard that applies to these cases. Because of the disagreement between the state trial and appellate courts, however, it granted Cook a certificate of appealability. See 28 U.S.C. § 2253(c).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court is not authorized to issue a writ of habeas corpus on a claim rejected by a state court on the merits unless the state-court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or was "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d). A state court unreasonably applies federal law if it correctly identifies the governing Supreme Court precedent but unreasonably applies its holding to the facts of the case. See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). A state-court decision involves an unreasonable determination of the facts if the court finds that "the factual premise was incorrect by clear and convincing evidence." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also Brumfield v. Cain, __ U.S. __, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356 (2015) (facts may not be set aside if "reasonable minds reviewing the record might disagree about the finding in question").
With these principles in mind, we turn to the specifics of Cooks case. At this stage of the proceedings, with the assistance of able recruited counsel, Cook has identified six respects in which Langan rendered ineffective assistance of counsel. He has not raised any argument about the lawyer who represented him in his direct appeal, and so we have nothing to say about that. We address each specific contention of defective performance separately. We then turn to the question of prejudice, which we assess by evaluating the trial as a whole, not one slip at a time.
1. Failure to locate and produce Hall at trial
Hall, as we noted, is the person who Cook insists was Egersons accomplice for the robbery. Cooks theory of defense was that he backed out of the robbery at the last minute. He did not contest the fact that he was with Egerson, Sadowski, and Babic on the morning of the crime. He maintained, however, that he "decline[d] to go along" with the break-in, and Hall took his place. Calling Hall the "biggest hole" in the states case, Langan argued that the police failed adequately to investigate his involvement. Despite arresting Hall with the women the morning after the robbery,
officers did not test for his DNA on a headwrap and glove found in Sadowskis car. They did test for Cooks DNA but did not get a match on these items. Cooks DNA was, however, found on a cigarette in Sadowskis car. Langan was also able to put before the jury the following facts:...
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