Christopher Mosley v. Mike Atchison

Filing

Filed opinion of the court by Judge Hamitlon. We AFFIRM the district court's determination that Mosely has met the requirement of 28 U.S.C. 2254(d). We VACATE, however, the district court s grant of Mosley s habeas petition and REMAND for a determination of whether, based on new evidence not available to the state appellate court, Mosley s trial counsel was in fact constitutionally ineffective. William J. Bauer, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge. [6417785-3] [6417785] [12-1083]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 12-1083
C HRISTOPHER M OSLEY,
Petitioner-Appellee,
v.
M IKE A TCHISON, Warden,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cv-00248—Joan B. Gottschall, Judge.

A RGUED JUNE 5, 2012—D ECIDED A UGUST 6, 2012

Before B AUER, R OVNER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Following a bench trial,
petitioner-appellee Christopher Mosley was found
guilty of first-degree murder and aggravated arson. He
was sentenced to consecutive prison terms of 60 years
on the murder charge and 15 years on the arson charge.
After exhausting his post-conviction remedies in the
Illinois state courts, Mosley filed a habeas corpus petition in federal court alleging ineffective assistance of

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counsel at trial. The district court granted his petition
and directed the State to release Mosley unless within
30 days it either filed an appeal or announced its intention to retry him. U.S. ex rel. Mosley v. Hinsley, 2011 WL
3840332 (N.D. Ill. Aug. 26, 2011). The State has
appealed, and Mosley challenges our jurisdiction over
this appeal.
We have jurisdiction to hear this appeal, and we
agree with the district court’s determination that the
state court’s summary dismissal of Mosley’s ineffective
assistance of counsel claim was contrary to federal law
clearly established by the Supreme Court of the United
States. The district court had to make that decision based
on the record before the state courts. See Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011); 28 U.S.C. § 2254(d).
The record before the state courts consisted of the
original trial record and the affidavits of two potential
alibi witnesses whom Mosley’s defense lawyer did not
call to testify at trial. We agree with the district court
that if those affidavits are true, then Mosley’s lawyer
provided ineffective assistance.
That determination does not, however, entitle Mosley
to the grant of his petition. We also must ask whether
the affidavits are in fact true, and whether there is
other evidence relevant to the lawyer’s decision not to
call those witnesses and the prejudice that might have
resulted. The district court heard additional evidence
that contradicted the affidavits, but the court did not
make findings on the conflicting evidence. The court
believed that Cullen v. Pinholster prohibited consideration

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of that evidence in deciding whether Mosley’s conviction was actually unconstitutional. The district court
read Pinholster too broadly. Pinholster limits a district
court to consideration of the state record in deciding
under § 2254(d)(1) whether a state court’s decision was
“contrary to, or involved an unreasonable application
of, clearly established Federal law . . . .” Where a district
court properly finds that a state court’s decision was
contrary to or involved an unreasonable application
of clearly established federal law, it must still answer
the question underlying § 2254(a): whether a petitioner
is actually “in custody in violation of the Constitution
or laws or treaties of the United States.” Pinholster
does not confine a district court’s decision on that
ultimate question under § 2254(a) to a limited state
court record. A state court’s mistake in summarily
rejecting a petition, i.e., without fully evaluating conflicting evidence on disputed factual issues, does not
necessarily mean the petitioner is ultimately entitled
to relief.
The basic point is familiar from ordinary civil cases. If
a trial court has erroneously granted summary judgment to one side in a civil case, that error does not necessarily mean that the other side is entitled to judgment
in its favor. Similarly here, relevant evidence was never
presented to the state court before it summarily, and
erroneously, dismissed the petition. The new evidence
must be considered to decide the ultimate merits of the
petitioner’s claim. We vacate the district court’s grant
of Mosley’s petition and remand for an evaluation of
whether Mosley’s counsel was in fact constitutionally

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ineffective. In making that evaluation, the district court
shall consider any relevant evidence, whether it was
presented to the state court or not. The district court
should exercise its discretion in deciding whether
to review the evidence the court heard in its prior evidentiary hearing, to hold a new evidentiary hearing,
or both.

I. Appellate Jurisdiction
Before addressing the merits, we must consider our
jurisdiction over this appeal. Mosley argues that this
court lacks jurisdiction because there is actually no pending appeal to decide. When the district court granted
Mosley’s petition for a writ of habeas corpus, its opinion
ordered the State of Illinois to release Mosley from
custody unless, within 30 days from the entry of
that opinion, the State announced its intention to
retry Mosley or filed its notice of appeal. The separate
Rule 58 judgment accompanying the order, however,
omitted the 30-days language. It said only: “IT IS
HEREBY ORDERED AND ADJUDGED that the court
grants Christopher Mosley’s petition for a writ of
habeas corpus.” After the district court denied the
State’s Rule 59 motion to alter or amend the judgment,
the State filed a timely notice of appeal.
Shortly thereafter, the State noticed that the order and
the judgment did not contain the same language. On
motion by the State, we remanded the case to the
district court for the limited purpose of modifying the
judgment nunc pro tunc to bring it into line with the

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district court’s opinion. On February 3, 2012, the district
court entered an amended judgment nunc pro tunc to
conform the judgment to the opinion. Nunc pro tunc is a
Latin phrase that means “now for then.” A judge can
issue a nunc pro tunc order to change records to reflect
what actually happened, though not to rewrite history.
Justice v. Town of Cicero, 682 F.3d 662, 664 (7th Cir. 2012).
Although the State had filed a timely notice of appeal
from the district court’s original judgment, it did not
file a new notice of appeal from the February 3, 2012 judgment. Mosley argues that Circuit Rule 57 requires that
a new notice of appeal be filed under these circumstances. Circuit Rule 57 provides:
A party who during the pendency of an appeal has
filed a motion under Fed. R. Civ. P. 60(a) or 60(b),
Fed. R. Crim. P. 35(b), or any other rule that permits
the modification of a final judgment, should
request the district court to indicate whether it is
inclined to grant the motion. If the district court so
indicates, this court will remand the case for
the purpose of modifying the judgment. Any party
dissatisfied with the judgment as modified must file
a fresh notice of appeal.
Mosley argues that the State is still “dissatisfied with
the judgment as modified” and should have filed a
new notice of appeal, so that its failure to do so bars our
jurisdiction over this appeal. Fogel v. Gordon & Glickson,
P.C., 393 F.3d 727, 733 (7th Cir. 2004) (to challenge an
amended judgment, appellant must file a new notice of
appeal); Fed. R. App. P. 12.1 advisory committee note

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(“When relief is sought in the district court during the
pendency of an appeal, litigants should bear in mind
the likelihood that a new or amended notice of appeal
will be necessary in order to challenge the district
court’s disposition of the motion.”).
The State responds that because the district court
amended its judgment nunc pro tunc, the original notice
of appeal remains effective. The State relies on Johnson
v. Acevedo, 572 F.3d 398 (7th Cir. 2009), and the
related district court proceedings following a Circuit
Rule 57 remand in that case. In Johnson, the district
court’s Rule 58 judgment was defective because it
stated only that the writ of habeas corpus was “conditionally granted” without specifying the condition. Id. at 400.
Upon learning of this jurisdictional issue, we “put the
appeal in stasis while the parties returned to the
district court and obtained a proper final judgment.” Id.
To cure the jurisdictional defect in Johnson, the State
filed in the district court a motion requesting an order
stating the court’s inclination to correct its judgment
nunc pro tunc, which the district court granted. We
granted the State’s Circuit Rule 57 motion and remanded
for the limited purpose of allowing the district court
to correct the judgment nunc pro tunc. The State filed
its motion to correct the judgment nunc pro tunc. The
district court granted the motion and then entered
an amended judgment. With the conclusion of that
process, the parties had “obtained a proper final judgment” and the appeal could proceed.
The same procedure was followed here, and under the
reasoning of Johnson, we have jurisdiction over this

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appeal. As in Johnson, the district court’s judgment in
this case was inconsistent with its opinion because the
judgment failed to include the conditions that could
delay or prevent Mosley’s release. After we had already
taken jurisdiction of its appeal, the State noted the
error and brought it to our attention. The district court
stated its inclination to correct its judgment nunc
pro tunc, that is, to retroactively amend its judgment
through its inherent power, and we remanded for
the limited purpose of allowing it to do so, but
retained jurisdiction, as permitted by Rule 12.1(b) of the
Federal Rules of Appellate Procedure. See Fed. R. App. P.
12.1 advisory committee note (“The court of appeals
may instead choose to remand for the sole purpose of
ruling on the motion while retaining jurisdiction to proceed with the appeal after the district court rules on the
motion . . . .”). The district court’s February 3, 2012 judgment thus had retroactive legal effect back to August 26,
2011, and this appeal remained pending. A new notice
of appeal was unnecessary. The State’s January 12, 2012
notice of appeal was therefore effective, and this Court
has jurisdiction over this appeal.

II. The Merits of the Petition
Our determination that we have jurisdiction over
this appeal brings us to the merits: Mosley’s petition for
a writ of habeas corpus. The statutory authority of
federal courts to issue habeas corpus relief for persons
in state custody is provided by 28 U.S.C. § 2254, as

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amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Section § 2254(d) states:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to
any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the
claim —
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.
This provision means that on habeas review, federal
courts are usually limited to a deferential review of the
reasonableness, rather than the absolute correctness, of
a state court decision. E.g., Harrington v. Richter, 131 S. Ct.
770, 785 (2011). For purposes of reasonableness review,
“a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was
so lacking in justification that there was an error
well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Id. at 786-87.
Where the state court’s decision is “contrary to” federal
law, that decision is not entitled to the usual AEDPA

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deference and is therefore reviewed de novo with the
reviewing court applying the correct legal standard.
Martin v. Grosshans, 424 F.3d 588, 592 (7th Cir. 2005). A
state court’s decision is “contrary to” clearly established
federal law where it is “substantially different from
the relevant precedent” of the Supreme Court. Williams
v. Taylor, 529 U.S. 362, 405 (2000).
Federal review of a claim governed by § 2254(d)(1) “is
limited to the record that was before the state court
that adjudicated the claim on the merits.” Pinholster, 131
S. Ct. at 1398. “It would be strange to ask federal courts
to analyze whether a state court’s adjudication resulted
in a decision that unreasonably applied federal law to
facts not before the state court.” Id. at 1399. Thus, under
§ 2254(d)(1), “evidence later introduced in federal court
is irrelevant.” Id. at 1400. If § 2254(d) does not bar
relief, then an evidentiary hearing may be needed. Id. at
1412 (Breyer, J., concurring in part and dissenting in part).1

1

Before the Supreme Court decided Pinholster, the district
court in this case had already held a two-day evidentiary
hearing. After Pinholster was decided, the State brought the
decision to the district court’s attention, arguing that for
purposes of § 2254(d), the district court had to determine
whether the state court’s decision was contrary to or an unreasonable application of federal law based only on the evidence
available to the state court when it made its decision. The
district court agreed with the State and disregarded the evidentiary hearing when conducting its § 2254(d) analysis.
Mosley, the State, and we agree that after Pinholster, the
district court was correct to limit its review.

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A. Factual and Procedural Background
Mosley’s claim is that his trial counsel was constitutionally ineffective, which requires him to show that counsel’s performance fell below an objective standard of reasonableness and he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (establishing
the familiar two-part “performance” and “prejudice” test
for ineffective assistance of counsel claims). Because
Mosley’s claim relates to the effectiveness of his trial
counsel, we begin by summarizing the State’s case
against Mosley and the details of his bench trial, then
the post-conviction state court proceedings, and then
the district court proceedings.

1. State Court Conviction
Mosley was a member of the Gangster Disciples
street gang and sold drugs from the corner of 71st and
Rhodes on the south side of Chicago. Marlo Fernando, a
competitor of Mosley’s, lived in an apartment building
located at 7108 S. Rhodes and sold drugs out of her
second-floor apartment. In June or July 1997, Mosley told
Fernando that she would have to pay “taxes” to the
Gangster Disciples since she was selling drugs out of the
building. After Fernando refused, her car window
was smashed. Fernando demanded reimbursement for
replacing the window from Mosley, who told her she
would be paid but only if she stopped selling drugs.
When Fernando did not receive money for her window,
she began calling the police every time she saw Mosley
and his friends in front of her building.

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On August 15, 1997, at around 10:30 p.m., fire was set
to Fernando’s apartment building. The fire killed one
resident of the building, Zulean Wilson. The fire was
arson, so Wilson’s death was murder. Expert testimony
at trial established that gasoline was poured on stairwell
doors located on the building’s second floor and was lit
with a match or a cigarette lighter. Mosley was arrested
and charged with murder and arson based on a theory
of accountability. Under Illinois law, Mosley was “accountable” for the murder and arson if, either before
or during the commission of the offense, he solicited,
aided, abetted, agreed, or attempted to aid another in
the planning or the commission of the offense. 720 ILCS
5/5-2; People v. Perez, 725 N.E.2d 1258, 1264 (Ill. 2000).
The State’s theory was that Mosley had ordered two
younger gang associates, then 14 and 13 years old, to
set the building on fire.
At Mosley’s trial, Fernando testified that after she
began calling the police about two weeks before the fire,
she heard Mosley say on at least five occasions that he
was going to kill her. Earlier on the day of the fire,
Fernando testified, she heard Mosley say he was going
to “kill that B.” Then immediately before she realized
her building was on fire, she heard Mosley say “burn this
motherfucker down.” Nailal Ledbetter, a friend of
Fernando’s, testified that she was at Fernando’s apartment on the evening of the fire. According to Ledbetter,
when the fire started between 10:00 and 10:30 p.m.,
Mosley ran past the window, looked up and said, “burn
this motherfucker down.” Officer Robert Tovar testified that Mosley, after being brought into the police

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station the day after the fire, admitted that he said “let
it burn” before he saw people being injured as a result
of the fire.
The sole defense witness was Ishi Coward. She testified
that on the evening of the fire, she, Mosley, and a group
of people were in the schoolyard at 70th Street and
Rhodes Avenue between 7:00 and 7:30 p.m. She testified
that Mosley was in the schoolyard the entire time until
the fire occurred at about 10:30 p.m. When she, Mosley,
and the others saw a fire at the building, they all ran
across the street. Coward testified that she never heard
Mosley tell anyone to burn the building down or to let
the building burn.
The judge found Mosley guilty of first-degree murder
and aggravated arson based on accountability, and sentenced him to consecutive prison terms of 60 and
15 years, respectively. Mosley appealed his convictions,
which were affirmed on February 6, 2002. Mosley did
not seek further direct review of his convictions.

2. Post-Conviction State Court Proceedings
Five years after the fatal fire, on September 5, 2002,
Mosley filed a post-conviction petition in state court,
pursuant to the Illinois Post-Conviction Hearing Act of
1998, 725 ILCS 5/122 et seq., claiming that he was denied
the effective assistance of trial counsel. Mosley alleged
that his counsel was ineffective for failing to present
the testimony of two alibi witnesses, Keely Jones and
Sharon Taylor. In support of his petition, Mosley attached affidavits from Jones and Taylor.

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Jones stated that on August 15, 1997, she arrived at the
schoolyard at about 7:45 or 8:00 p.m. and met with
several people, including Mosley. The group had been
there a couple of hours when they heard someone
shouting about a fire and they saw the building was
on fire. Everyone ran across the street to the building to
see if they could help, and Mosley assisted some of
the people in the fire to safety. When Jones learned a
couple of days after the incident that Mosley was
arrested in connection with the fire, she went to visit
him and was told he was accused of telling someone
to burn the building down or of saying to let the
building burn. Jones told Mosley that she would testify
on his behalf, and Mosley gave Jones his attorney’s
contact information. Jones was unable to reach the
attorney by phone but spoke with him on three separate
occasions in the courtroom, telling him that she would
testify for Mosley. Mosley’s attorney told her that he
would need her to testify, but he never contacted Jones
and never called her as a witness even though she was
present for Mosley’s trial.
Sharon Taylor’s apartment was directly above
Fernando’s. Taylor stated in her affidavit that she was
in her apartment sitting on a couch by an open window
with her son. She saw Mosley and a group of people
running from the schoolyard yelling that the building
was on fire, but she never heard Mosley tell someone
to burn down the building. Mosley helped people to
safety, including her son, whom Taylor dropped into
Mosley’s arms from her window. Taylor later learned
that Mosley was arrested for the fire and that he was

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accused of telling someone to burn down the building or
saying to let the building burn. Taylor stated that the
allegations were not true because she witnessed
Mosley run across the street from the schoolyard with
other people. Taylor suggested to Mosley that she testify
on his behalf, and he gave her his attorney’s contact information. She was unable to reach the attorney by
phone, but approached him in court and told him that
she would like to testify for Mosley. The attorney
assured Taylor that she would be called as a witness,
but she was never called to testify even though she was
present during Mosley’s trial.
After reviewing the trial record and the affidavits of
Jones and Taylor, the Illinois trial court summarily
denied Mosley’s post-conviction petition as frivolous
and without merit, finding that Mosley’s attorney did
not call Jones and Taylor as a matter of trial strategy
and that if they had been called to testify, the result of
the trial would not have been different.
Mosley appealed that ruling, and, after reviewing
de novo the ineffective assistance of counsel claim, the
Illinois Appellate Court affirmed. On the performance
prong, the appellate court found that the trial attorney’s
decision not to call Taylor and Jones as alibi witnesses
was reasonable and a matter of trial strategy. The
appellate court also found that Mosley had failed to
satisfy the prejudice prong of Strickland, “as the record
shows that the outcome of the trial would not have
differed if Jones and Taylor had testified.” Mosley’s
petition for leave to appeal to the Illinois Supreme
Court was denied without opinion.

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3. Federal Habeas Proceedings
Mosley then filed a petition for writ of habeas corpus
in the federal district court, again asserting ineffective
assistance of counsel, and the district court held an evidentiary hearing. Shortly after that hearing, the Supreme
Court issued Cullen v. Pinholster, 131 S. Ct. 1388 (2011),
which the State argued required the district court to
confine its review to the record before the state court.
The district court accepted this argument and disregarded the evidence from the evidentiary hearing,
limiting its analysis to the state trial record and the affidavits from Jones and Taylor, for that was the evidence
available to the state court when it reviewed Mosley’s
ineffective assistance of counsel claim. Mosley, 2011 WL
3840332, at *1 n.2.
Based on that review, the district court determined
that Mosley’s claim met the requirements of § 2254(d) in
two ways. On the performance prong of Strickland, the
district court determined that it was unreasonable for
the state court to find that trial counsel’s decision not
to call Jones and Taylor was a matter of trial strategy.
On the prejudice prong, the district court found
that the state court’s decision was contrary to established Supreme Court precedent because it required
Mosley to show that the outcome would have been different, rather than only a “reasonable probability” of a
different outcome required under the Strickland standard. Thus, the district court conducted a de novo review of
the prejudice inquiry and determined that there was a
reasonable probability that, but for the unprofessional

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errors of counsel, the outcome of the trial would have
been different.
The State has
Mosley’s habeas
court’s decision
630 F.3d 685, 690

appealed the district court’s grant of
petition. We review de novo the district
to grant habeas relief. Suh v. Pierce,
(7th Cir. 2011).

B. § 2254(d)
Our first task is to determine whether the Illinois Appellate Court’s rejection of Mosley’s ineffective assistance
of counsel claim was either “contrary to, or involved
an unreasonable application of” the federal law clearly
established by the Supreme Court in Strickland v. Washington. See 28 U.S.C. § 2254(d)(1). To demonstrate ineffective assistance under Strickland, a prisoner must
show both that counsel’s performance was deficient
and that the prisoner was prejudiced as a result. 466 U.S.
at 687.

1. Performance
The performance standard provides significant
latitude for permissible attorney conduct, and a
prisoner “must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689
(internal quotation marks omitted). If the prisoner has
identified specific errors or omissions, the court must
determine “whether, in light of all the circumstances,

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the identified acts or omissions were outside the wide
range of professionally competent assistance.” Id. at 690.
In its post-conviction review of Mosley’s case, the
Illinois Appellate Court concluded that trial counsel’s
decision not to call Taylor and Jones as alibi witnesses
was reasonable and a matter of trial strategy because
(1) their testimony would have been cumulative to that
of Ishi Coward and (2) their testimony would have bolstered the state’s case against Mosley on a theory of
accountability by reinforcing the fact that he was across
the street when the fire began.
The state court’s analysis was an unreasonable application of Strickland for two reasons. First, on the limited
record before the state courts, it was unreasonable to
find summarily that trial counsel chose not to call Jones
and Taylor as a matter of strategy. According to their
affidavits, which were treated as true for purposes of
the state courts’ summary disposition, Mosley’s lawyer
never even interviewed them to learn what they might
say. On that limited record before the state courts, the
courts had to assume the lawyer was not aware of
the specifics of their potential testimony. To avoid the
inevitable temptation to evaluate a lawyer’s performance
through the distorting lens of hindsight, Strickland establishes a deferential presumption that strategic judgments made by defense counsel are reasonable. 466 U.S.
at 690-91. But the presumption applies only if the
lawyer actually exercised judgment. See id. (“strategic
choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on in-

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vestigation”). The consequences of inattention rather
than reasoned strategic decisions are not entitled to the
presumption of reasonableness. Rompilla v. Beard, 545
U.S. 374, 395-96 (2005); Wiggins v. Smith, 539 U.S. 510, 53334 (2003). If, as Jones and Taylor claimed in their affidavits, Mosley’s lawyer never found out what their
testimony would be, he could not possibly have made
a reasonable professional judgment that their testimony would have been cumulative or bolstered the
State’s case and could not have chosen not to call Jones
and Taylor as a matter of strategy.
It was also unreasonable to find that Jones’s and
Taylor’s testimony would have been cumulative and
bolstered the State’s case on a theory of accountability.
Evidence is cumulative when it “goes to prove what has
already been established by other evidence.” Smith v.
Secretary of New Mexico Dep’t of Corrections, 50 F.3d 801,
829 (10th Cir. 1995); Watkins v. Miller, 92 F. Supp. 2d 824,
837 (S.D. Ind. 2000). Whether evidence is cumulative or
not is a particular type of problem in evaluating the
probative value of evidence, and it requires judgment.
Evidence that provides corroborating support to
one side’s sole witness on a central and hotly contested factual issue cannot reasonably be described as
cumulative. See, e.g., United States v. Vickers, 442 Fed.
App’x 79, 84 (5th Cir. 2011); United States v. Stevens, 277
Fed. App’x 898, 900-01 (11th Cir. 2008); Vasquez v. Jones, 496
F.3d 564, 576 (6th Cir. 2007); see generally Arizona v.
Fulminante, 499 U.S. 279, 299 (1991) (second defendant’s
confession was not merely cumulative of first defendant’s
confession where they could reinforce and corroborate
each other).

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Here, Mosley’s location when the fire was started was
the critical issue in the case. Fernando testified that
Mosley was underneath her window, ordering the two
younger boys to burn down the building. According to
their affidavits, Jones and Taylor would have testified
that Mosley was in the schoolyard across the street.
That testimony would not have been cumulative to the
testimony of Ishi Coward, who was confused by the
trial judge’s questioning and seemed to testify (incorrectly) at one point that no one from the schoolyard,
including Mosley, ever left to go to the burning building.
“[T]estimony of additional witnesses cannot automatically be categorized as cumulative and unnecessary.”
Crisp v. Duckworth, 743 F.2d 580, 585 (7th Cir. 1984).
Where, as here, the location of the defendant is critical
to the case and there were problems with the testimony
of the sole alibi witness, additional witnesses may well
be critical for effective representation. See, e.g., Washington
v. Smith, 219 F.3d 620, 634 (7th Cir. 2000) (finding
counsel’s failure to investigate and call additional witnesses was deficient due in part to the fact that the one
alibi witness who was called had questionable credibility
because of prior convictions); Montgomery v. Petersen,
846 F.2d 407, 411-15 (7th Cir. 1988) (finding counsel
ineffective for not calling additional, disinterested alibi
witnesses not subject to the same impeachment as
family members).
The state court said that Jones’s and Taylor’s testimony
“would have reinforced that defendant was across the
street from the fire at the time that it occurred, thereby
strengthening the State’s case against him based on

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accountability.” That determination was not reasonable.
As the district court correctly noted, it is exactly the
ability of Jones and Taylor to place Mosley across the
street (and not under Fernando’s window ordering the
boys to set the fire) that could have made a difference.
The lynchpin of the prosecution’s case, tying Mosley to
the actions of the younger boys, was the “burn this
motherfucker down” comment that Fernando and
Ledbetter claimed to have heard. To say that the state
trial judge relied heavily on that comment would be an
understatement — he quoted it numerous times in pronouncing guilt and sentencing Mosley. When discussing
defense counsel’s assertion that any statement made
by Mosley was made after coming upon a fire already
set, the judge specifically found that Mosley was
below Fernando’s window before the fire was set and
that the comment was indeed a directive to the two
boys. Additional witnesses placing Mosley across the
street and not in front of the building at the time the
fire was set would have bolstered the defense’s theory,
not the prosecution’s.
Because, according to the affidavits that had to be
taken as true in the state courts’ summary disposition,
trial counsel failed even to interview Jones and Taylor
to learn the content of their potential testimony, it
was unreasonable for the state appellate court to find
summarily that trial counsel made a strategic decision
not to call them as witnesses. In addition, it was unreasonable for the state appellate court to find summarily
that their potential testimony would have been cumulative or would have bolstered the state’s case.

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2. Prejudice
To succeed on a Strickland ineffective assistance of
counsel claim, Mosley must also show that he suffered
prejudice as a result of his counsel’s poor performance.
The state court found that Mosley had not satisfied the
prejudice prong. The problem is that the state court
repeatedly misstated the controlling constitutional standard under Strickland. For example, citing Strickland
itself, the Illinois Appellate Court set out the prejudice
prong as “he must show that . . . he was prejudiced, that
is, the result of the proceedings would have differed but
for defense counsel’s deficient performance.” App. 32
(emphasis added). Later, the court reiterated: “As the
trial court stated, had defense counsel called Taylor and
Jones to testify, the result of the trial would not have differed,
as they merely would have placed defendant across the
street at the time of the offense.” App. 36 (emphasis
added).
The district court found that the state appellate court’s
decision was, in the terms of § 2254(d)(1), “contrary to”
Strickland because it required Mosley to show that the
result would have been different. We agree. Strickland’s
prejudice prong actually requires that the defendant
show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694 (emphasis added). This is not a mere detail or a
quibble over word-smithing. The Supreme Court has
used this precise discrepancy to illustrate how a state
court’s decision may be “contrary to” clearly established
federal law under § 2254(d)(1):

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A state-court decision will certainly be contrary to
our clearly established precedent if the state court
applies a rule that contradicts the governing law set
forth in our cases. Take, for example, our decision
in Strickland v. Washington, 466 U.S. 668 (1984). If a
state court were to reject a prisoner’s claim of ineffective assistance of counsel on the grounds that
the prisoner had not established by a preponderance
of the evidence that the result of his criminal proceeding would have been different, that decision
would be “diametrically different,” “opposite in
character or nature,” and “mutually opposed” to
our clearly established precedent because we held
in Strickland that the prisoner need only demonstrate a “reasonable probability that . . . the result
of the proceeding would have been different.” Id.
at 694.

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The state
court’s formulation in this case is also nearly identical
in wording to one we have found “contrary to”
Strickland: “but for defense counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Martin v. Grosshans, 424 F.3d 588, 592 (7th
Cir. 2005).
The State argues that this case is similar to Sussman
v. Jenkins, 636 F.3d 329 (7th Cir. 2011), where we found
that a state court’s omission of the “reasonable probability” language was not contrary to Strickland. Id. at 35960. As the State points out, the state courts here and
in Sussman cited cases that in turn cited the proper stan-

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dard, but that is where the similarities end. In Sussman,
we held that it was clear from the state court’s opinion
that the state court did not believe that the evidence
in question had a reasonable probability of altering the
jury’s verdict because it would have added little to the
information received by the jury and would have been
insignificant in impeaching the victim’s credibility. Id.
at 360. As a result, we found the use of a “shorthand”
version of the Strickland prejudice test did not suggest
that the state court employed the wrong standard. Id.
In this case, though, the State’s case against Mosley was
far from unassailable, and “a verdict or conclusion
only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 696.
The state appellate court did not merely recite the
wrong standard or use an inapt shorthand expression of
the standard. It applied an incorrect and more onerous
standard, and the difference may well have been decisive. Because the state appellate court’s analysis was
contrary to Strickland, this court reviews the prejudice
prong de novo. Grosshans, 424 F.3d at 592.
So now we examine whether there was a reasonable
probability the outcome would have been different,
again limiting our review to the evidence before the
state court. A reasonable probability is “a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. “In weighing the effect of counsel’s errors, the court must consider the totality of the
evidence before the judge or jury. Consequently, a
verdict or conclusion that is overwhelmingly supported

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by the record is less likely to have been affected by
errors than one that is only weakly supported by the
record.” Hough v. Anderson, 272 F.3d 878, 891 (7th Cir.
2001); see also Stanley v. Bartley, 465 F.3d 810, 814 (7th
Cir. 2006) (“For the issue is not whether [petitioner]
is innocent, but whether if he had had a competent
lawyer he would have had a reasonable chance (it needn’t
be a 50 percent or greater chance) of being acquitted . . . .”)
(internal citation omitted).
Given the importance of Jones’s and Taylor’s potential
testimony, at least according to their affidavits, and
given that the evidence against Mosley was not overwhelming, we agree with the district court that if the
Jones and Taylor affidavits are taken at face value, Mosley
was prejudiced by his counsel’s failure to call the
two witnesses. Fernando, the primary witness against
Mosley, had a clear motive to lie. She admitted she
was involved in an ongoing dispute with Mosley
over the sale of illegal drugs in the neighborhood. She
also claimed that he and his fellow gang members were
threatening her as a result of her refusal to pay the
gang’s “tax,” and she called the police every time they
gathered on the corner. Fernando had a strong motive
for wanting Mosley incarcerated, so her credibility was
suspect.
Further, Fernando’s testimony regarding the “burn
this motherfucker down” comment leads to more
questions than answers. According to her testimony at
trial, Fernando was in her apartment doing her hair
with her friend. She went to her bathroom to get condi-

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tioner for her hair when, she claimed, she heard Mosley
say “burn this motherfucker down.” This comment was
the State’s key piece of evidence for holding Mosley
accountable for the younger boys’ starting of the fire.
She then testified that she walked from the bathroom to
her living room, looked out an open window, and
saw Mosley standing outside alone. She then looked
up and saw a group of individuals running from the
schoolyard on the corner yelling that the building was
on fire. She opened her front door, saw smoke in the
hallway, and saw the two younger boys running
down the hall. The district court described the problem
persuasively:
Fernando’s testimony presents an almost impossible
factual scenario. First of all, if Fernando’s version of
events is to be believed, the following must have
happened: in the time it took her to walk from her
bathroom (where she allegedly heard Mosley say
“burn the motherfucker down”) to her living room,
the two boys who lit the fire ran from below her
window (where they were allegedly getting the directive from Mosley to start the fire) into the apartment building, ran up the stairs to the second floor,
poured gasoline in the opening to the second floor
hallway, and lit the fire. Fernando claimed that when
she looked out her living room window and identified
Mosley, she saw a group of people running towards
her building from the schoolyard yelling that the
building was on fire. So, in the time it took Fernando
to walk from her bathroom to her living room,
Mosley gave the directive, the boys ran into the build-

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ing, threw the gasoline, lit the fire, and the fire progressed so that smoke was visible to the crowd of
people across the street in the schoolyard.

2011 WL 3840332, at *4. Not even Ledbetter’s testimony
supports this version of the events: She testified that she
noticed “people were yelling fire, fire, fire,” and then she
went to the window and saw Mosley standing below
“yelling burn this down.”
The State argues that Mosley was not prejudiced by
trial counsel’s decision not to call Jones and Taylor
because their evidence was not exculpatory — it could
not negate Mosley’s guilt on an accountability theory.
Essentially, the State seems to be arguing that even if
Mosley had not made the statement at issue and was
indeed across the street at the time the fire was set, he
still would have been found guilty. We agree that if
the judge had rejected Fernando’s and Ledbetter’s testimony, it still would have been possible to find Mosley
guilty under that reasoning, at least in theory. But the
theoretical possibility does not defeat Mosley’s showing
of prejudice under Strickland. The trial judge gave
detailed reasons for finding Mosley guilty. Those comments show that two findings were central to the
verdict: (1) Mosley was in fact under Fernando’s window
before the fire was set, and (2) he in fact told the
two younger boys to “burn this motherfucker down.”
The State also reiterates its argument that the testimony of Jones and Taylor would have been merely cumulative to that of Ishi Coward. As explained above
regarding the performance prong, Jones’s and Taylor’s

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substantially similar testimony, at least as set out in
their affidavits, would not have been cumulative.
Coward’s testimony was confused and was not corroborated. It is clear from the transcript that Mosley’s location at the time the fire was set was the key issue to the
judge. Additional alibi witnesses can add “a great deal
of substance and credibility to [the defendant’s] alibi.”
Washington, 219 F.3d at 634. Thus, if the Jones and
Taylor affidavits are taken at face value, we agree with
the district court that there is a reasonable probability
that the result of the trial would have been different
with the addition of two alibi witnesses to contradict Fernando’s testimony and support Coward’s. We
affirm the district court’s holding that, based on the
state court record, Mosley has met the requirements of
§ 2254(d).

C. §2254(a)
Mosley argues that the inquiry should end there: based
on the evidence available to the state court, his counsel
was ineffective and thus his habeas petition should
be granted to give him a new trial. Mosley further
argues (and the district court agreed) that the State
waived its right to ask the district court to examine the
evidence from the evidentiary hearing when it cited
Pinholster for the proposition that new evidence could not
be considered in deciding under § 2254(d) whether
the state court’s decision had been contrary to or an
unreasonable application of clearly established federal
law. The State did not mention in that filing that it

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thought the new evidence should be considered if the
district court found that Mosley had met the requirements of § 2254(d).
We disagree with this finding of waiver. Mosley’s
waiver theory assumes that the State needed to think
through every possible implication of Pinholster to avoid
waiver on any of the possible permutations and errors that
might be made in the district court’s ultimate decision.
We believe that the theory expects too much of lawyers.
The State’s lawyers certainly did not invite or encourage the critical error that was made here. The State
simply made no mention of considering the testimony
from the evidentiary hearing if the district court found
that the state court decision was contrary to or an unreasonable application of federal law.
Where a habeas petitioner shows that a state court’s
decision denying relief was contrary to or an unreasonable application of federal law, that will often show
that the petitioner is entitled to relief, but the critical
point here is that it will not do so always and automatically. Whether the petitioner is actually entitled to relief — whether under § 2254(a) he is in custody in
violation of the Constitution or laws or treaties of the
United States — is a separate question.
The procedures the state court used in reaching its
erroneous decision must be considered in deciding how
far the federal court’s § 2254(d) finding reaches toward
a final decision to grant or deny relief. Where a state
court considered conflicting evidence and made factual
findings, a district court may be able to decide the § 2254(a)

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question based on its analysis of the state court’s
decision under § 2254(d). What happened here was
very different. The state courts rejected Mosley’s postconviction petition summarily, assuming that the Jones
and Taylor affidavits are true. The district court and we
agree that the state courts erred in that decision, but
that does not mean the Jones and Taylor affidavits are
actually true or that they provide the complete picture
of the facts relevant to Mosley’s claim of ineffective
assistance of counsel.
The situation here is similar to that when a trial court
erroneously grants a defendant’s motion for summary
judgment. An appellate court will assume that the plaintiff’s evidence was true and will reverse the summary
judgment if there are genuine issues of material fact. The
appellate court’s reversal, though, usually will not order
that a final judgment be entered in favor of the plaintiff,
but will remand for a trial to resolve those disputed
issues of fact.
In this case, the district court heard extensive evidence that could lead a reasonable finder of fact to
reject many of the important elements of the Jones and
Taylor affidavits. Pinholster did not instruct lower courts
to ignore such evidence after determining that a state
court’s denial of relief was erroneous under the strict
standards of § 2254(d)(1). In fact, in his separate opinion
in Pinholster, Justice Breyer explained this problem and
its correct solution:
For example, if the state-court rejection assumed
the habeas petitioner’s facts (deciding that, even if

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those facts were true, federal law was not violated),
then (after finding the state court wrong on a (d)
ground) an (e) hearing [under § 2254(e)] might be
needed to determine whether the facts alleged were
indeed true. Or if the state-court rejection rested on
a state ground, which a federal habeas court found
inadequate, then an (e) hearing might be needed
to consider the petitioner’s (now unblocked) substantive federal claim. Or if the state-court rejection
rested on only one of several related federal
grounds (e.g., that counsel’s assistance was not “inadequate”), then, if the federal court found that the
state court’s decision in respect to the ground in
deciding violated (d), an (e) hearing might be
needed to consider other related parts of the whole
constitutional claim (e.g., whether the counsel’s
“inadequate” assistance was also prejudicial). There
may be other situations in which an (e) hearing is
needed as well.

131 S. Ct. at 1412 (Breyer, J., concurring in part and dissenting in part). Mosley’s situation fits neatly within
Justice Breyer’s first hypothetical. The state court
evaluated Mosley’s claim as supported by the Jones
and Taylor affidavits and decided that even if those
affidavits were true, Mosley had not stated a claim for
ineffective assistance of counsel. The district court
correctly found that the state court was wrong on two
(d) grounds. (The state court’s performance analysis
was unreasonable and its prejudice analysis was
contrary to clearly established federal law.) So Mosley
cleared the § 2254(d) hurdle. That leaves Justice Breyer’s

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final and most basic question: are the facts alleged in
the affidavits indeed true? To answer that question,
the district court needed to hold an evidentiary hearing,
as it did, but also to make findings on the disputed
facts, which it did not.2
We thus vacate the district court’s grant of Mosley’s
petition for habeas corpus. The district court already
held an evidentiary hearing, and in light of Pinholster, it
properly did not rely on that evidence in its § 2254(d)
analysis. The State now urges that we consider the evidence presented at that hearing and make a § 2254(a)
determination as to whether the allegations in the affidavits were true and, by extension, whether petitioner is in
custody in violation of federal law (and urges that the
answer to that question is no). Mosley, likewise, argues
that if we were to consider the evidence presented at
the evidentiary hearing, we would find that it supports
his claim that he is entitled to habeas relief.
We decline the invitations to review the testimony
from the evidentiary hearing and to make a § 2254(a)

2

We agree with Mosley that “[t]he power of a court to grant
a petition without an evidentiary hearing is unchanged by
the Court’s ruling in Pinholster.” But that is beside the point. It
is not Pinholster that compels the evidentiary hearing, but
the fact that evidence relevant to the merits of Mosley’s
claim, and tending to undermine it, was never presented to
the state court because of its summary dismissal of
the claim. The district court is obliged to consider such
evidence, like all other relevant evidence, before ruling on
the merits of the claim.

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determination ourselves. That would require the judges
of this court to resolve issues of credibility and to act
as triers of fact. We could not do that job on the basis of
a written transcript. We instead remand the matter to
the district court. Reviewing new evidence and making
findings of fact is properly the responsibility of the
district court. We must remand and direct the district
court to consider the evidence presented in the
evidentiary hearing, to hold a new hearing, or both, to
determine whether Mosley’s trial counsel was in fact
constitutionally ineffective such that Mosley’s petition
for habeas corpus should be granted under § 2254(a).

III. Conclusion
The state appellate court’s decision that Mosley
was not denied effective assistance of counsel was
contrary to and an unreasonable application of clearly
established federal law. We affirm the district court’s
determination that Mosley has met the requirements
of 28 U.S.C. § 2254(d). We vacate, however, the district
court’s grant of Mosley’s habeas petition and remand for
a determination of whether, based on new evidence not
available to the state appellate court, Mosley’s trial
counsel was in fact constitutionally ineffective. The
district court may rely on the evidentiary hearing held
July 29 and August 3, 2010, or may hold a new evidentiary hearing, or both.
V ACATED AND R EMANDED
8-6-12