district court decision, granting habeas relief on review of unpublished Wis COA opinion (2000AP-2460-CR); on remand from Toliver v. McCaughtry, 539 F.3d 766 (7th Cir.2008)
for Toliver: Brian P. Mullins; Toliver BiC; Wis. Resp.; Reply
Habeas – Ineffective Assistance – Deficient Performance
Counsel performed deficiently in failing to call two potential witnesses who would have supported Toliver’s theory of defense that, though present with his brother when the latter shot and killed the victim, Toliver didn’t encourage or otherwise assist his brother in that act. The fact that both witnesses were related to Toliver (thus arguably biased in his favor) wouldn’t have been an objectively reasonable basis for not calling them to testify. And, counsel’s failure even to interview one of the witnesses was itself unreasonable.
In Rolan v. Vaughn, 445 F.3d 671 (3d Cir. 2006), the petitioner sought a writ of habeas corpus on the ground that his trial counsel was ineffective for several reasons, including that the attorney failed to investigate and call two potential witnesses to testify in support of the petitioner’s self-defense claim. Similar to this case, the petitioner’s trial counsel died before the habeas petition was filed. In addition, one of the potential witnesses that the trial counsel did not investigate also had passed away.
When determining whether the trial counsel’s performance was unreasonable, the court recognized that “counsel’s strategic decisions will not be second-guessed by post-hoc determinations that a different trial strategy would have fared better.” Id. at 682. However, the court found that “only choices made after a reasonable investigation of the factual scenario are entitled to a presumption of validity.” Id. (citing Strickland, 466 U.S. at 690-91). Therefore, the court assessed whether the trial attorney’s failure to interview the two potential witnesses was objectively reasonable. The court found that “[f]ailure to conduct any pretrial investigation is objectively unreasonable.” Id. While the attorney’s decision not to pursue a self-defense claim may be a strategic decision entitled to the presumption of validity, the court found that the attorney’s decision “cannot be accorded the normal deference to strategic choices because it was uninformed.” Id. (citing United States v. Kauffman, 109 F.3d 186, 190 [3d Cir. 1991]).
In this case, a review of the record shows that the petitioner’s trial counsel told the petitioner that he was not going to call Angeal Toliver to testify because “they wouldn’t believe her because she was the mother of [his] children.” (Hearing Tr. at 55). He also told the petitioner that he had not met with Harvey Toliver because “Harvey was related to [the petitioner] and might not be believable.” (Hearing Tr. at 53). As the appellate court found, in light of the defense and the testimony these witnesses would have provided, their “possible bias does not provide a basis for counsel’s failure to call them.” Toliver, 539 F.3d at 775. Moreover, counsel could not have made a reasonable strategic decision that Harvey’s testimony would be unhelpful or unbelievable because counsel did not even interview Harvey. See Strickland, 466 U.S. at 690-91; Rolan, 445 F.3d at 682. The failure to interview Harvey not only means that counsel was unable to make a strategic decision as to the helpfulness or credibility of Harvey’s testimony, it also means that counsel was unable to “determine whether [Harvey] might have other information potentially valuable to the defense” beyond that which the petitioner had communicated to counsel. Rolan, 445 F.3d at 682. Therefore, the presumption of validity does not apply to counsel’s decision not to call Harvey because that decision was uninformed. See id. Under these circumstances, this court finds that the petitioner’s trial counsel’s performance was insufficient.
Toliver was convicted of first-degree intentional homicide in 1992. That’s right: 1992. Whether he’s exceptionally unlucky (because vindication required two decades) or freakishly lucky (because the odds of obtaining 2254 procedural relief two decades after conviction are probably less than the odds of beating Watson at Jeopardy) is unanswerable. The litigation history, though it illuminates the situation, can’t be recited in any detail in a short post, save a detail or two. After losing a pro se direct appeal in state court, Toliver induced a federal judge in 1999 to rewind the appeal clock, Wisconsin ex rel. Toliver v. McCaughtry, 72 F. Supp. 2d 960 (E.D. Wis. 1999). On the reinstated appeal, the state court held, in brief, that the evidence of Toliver’s guilt was so overwhelming that the two witnesses at issue wouldn’t have affected the outcome. The court didn’t discuss whether counsel should have investigated them more thoroughly or called them as witnesses, whether that is counsel performed deficiently, because Toliver couldn’t show prejudice anyway. Another 2254 petition. The district court initially denied relief, but the 7th reversed. The state court’s omission of a deficient-performance holding freed up the 7th to draw its own conclusion on that question, without deference to the state court’s denial of relief. That task was undoubtedly made easier still by counsel’s failure to investigate one of the witnesses at all. (Counsel had died along the way and thus his version was never heard.) Worth noting, though, are these observation’s from that decision:
Nothing in the record before us suggests how Angeal Toliver’s and Harvey Toliver’s testimony could have harmed Mr. Toliver’s defense. On this record, the only reason that we can discern for not calling Angeal and Harvey was their relationship with Mr. Toliver and the resulting possibility of bias. Harvey is Mr. Toliver’s cousin and Angeal is his wife and the mother of his children. Consequently, the jury might have dismissed their testimony. Nevertheless, given the nature of Mr. Toliver’s defense, which we discuss in more detail below, and the probative and corroborative testimony that Angeal and Harvey would have provided, these witnesses’ possible bias does not provide a basis for counsel’s failure to call them. See, e.g., United States ex rel. Hampton v. Leibach, 347 F.3d 219, 249-50 (7th Cir.2003) (noting, in a case in which eyewitness testimony was critical, that bias “certainly is a circumstance that a factfinder would consider in weighing [the witness’] credibility, but it is not so impeaching that one can wholly discount the import of their testimony and the effect that it might have had on [a] jury”). Even more fundamentally, counsel could not have made a reasonable strategic decision not to call Harvey without interviewing him in order to evaluate his proposed testimony, his credibility or his demeanor. See Davis v. Lambert, 388 F.3d 1052, 1063-64 (7th Cir.2004); Washington v. Smith, 219 F.3d 620, 629-30 (7th Cir.2000); see also Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Angeal’s and Harvey’s testimony provided unique information, available from no other witnesses, that was corroborative of Mr. Toliver’s claim that he had not urged Oliver to kill Rogers but actually had attempted to dissuade him from doing so.
The 7th’s discussion on prejudice is worth a look in its own right, but won’t be summarized here, except to say that neither Wisconsin’s natural-and-probable consequence theory of liability nor its first-cousin, the substantial-factor test of causation, makes an appearance. Toliver’s brother intentionally shot and killed someone over a drug dispute. Toliver “strapped up” and went looking for the victim with his brother. Toliver was with his brother when he killed her. Read the two witnesses’ versions closely and draw your own conclusions about just how strongly they refute the idea Toliver knowingly assisted his brother in committing acts the natural and probable consequence of which was the intentional murder. For that matter, why isn’t one of the witness’s account of what Toliver and his brother said the next day simply hearsay (if, at least, Oliver didn’t testify, which appears to be the case)? Puzzling.
