Cook v. Foster, 012920 FED7, 18-2214

Docket Nº:18-2214
Opinion Judge:WOOD, Chief Judge.
Party Name:Terez Cook, Petitioner-Appellant, v. Brian Foster, Warden, Respondent-Appellee.
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

Terez Cook, Petitioner-Appellant,


Brian Foster, Warden, Respondent-Appellee.

No. 18-2214

United States Court of Appeals, Seventh Circuit

January 29, 2020

Argued October 3, 2019

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CV-989 - Nancy Joseph, Magistrate Judge.

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 (2011), if the "standard [for relief] is difficult to meet, that is because it was meant to be." Id. at 102. 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. Our task in the present case is to decide whether petitioner Terez Cook demonstrated that Wisconsin's 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 (1984). The district court thought that Cook's showing fell short, but we conclude that he is entitled to relief. We therefore reverse.


Cook's 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 Cook's basic contention has been that the state identified the wrong man as Egerson's 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: Egerson's girlfriend and accomplice to the home-invasion crimes

• Jessica Babic: Sadowski's 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 Egerson's accomplice.

• Stacy Thede: Cook's 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 Egerson's urging, Sadowski and Babic bought gloves, bandanas, and duct tape. So equipped, Sadowski drove Egerson's 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 Sadowski's 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 state's story) at a gas station in Peshtigo. The women called Hall for a ride to Babic's 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 Cook's motion had to be granted because of the cumulative effect of trial counsel's many missteps. In so ruling, the court stressed the exceptional nature of the case: You know, I've been on the bench 20 years, and I can't remember ever granting a new trial because of ineffective assistance of counsel. It may have happened, but I can't as I sit here today recall. It's a heavy decision. I understand that.

I've 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 there's 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 court's 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 Cook's 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 (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 (2003); see also Brumfield v. Cain, 135 S.Ct. 2269, 2277 (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 Cook's 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 Egerson's accomplice for the robbery. Cook's 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 state's 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 Sadowski's car. They did test for Cook's DNA but did not get a match on these items. Cook's DNA was, however, found on a cigarette in Sadowski's car. Langan was also able to put before the jury the following facts: Egerson and Hall had known each other since childhood; Hall was friends with Sadowski, Babic, and an ex-boyfriend of the Harpers' daughter; Hall had stopped by Babic's house twice on the night of the robbery; and neither Sadowski nor Babic had told the police about Hall's visits. Babic and Sadowski both denied that Hall was involved in the robbery.

But the jury never saw Hall, because Langan did not subpoena him to testify at Cook's trial. Worse, he made no effort to locate Hall. When the judge asked about this outside the presence of the jury, Langan reported that Hall was "in prison." The judge then stated, "at least you know where to find him, and you could get a writ to produce him," but...

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