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Jones v. Calloway

United States Court of Appeals, Seventh Circuit

November 15, 2016

Cortez Jones, Petitioner-Appellee,
v.
Victor Calloway, Respondent-Appellant.

          Argued January 19, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 4429 - James B. Zagel, Judge

          Before Easterbrook, Rovner, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         After a bench trial in Cook County Circuit Court, Cortez Jones was convicted of murder for the 1999 shooting death of Friday Gardner. In his federal habeas petition, see 28 U.S.C. § 2254, Jones alleged that his trial counsel was constitutionally ineffective in violation of the rule of Strickland v. Washington, 466 U.S. 668 (1984). The factual basis for this claim was his attorney's failure to present the testimony of Michael Stone, a codefendant who was tried separately. Stone confessed to the crime and has consistently maintained that he-and he alone-shot Gardner. Stone's story matched the physical evidence and some (though not all) of the eyewitness testimony. Indeed, a jury convicted Stone of murdering Gardner before Jones's bench trial began, and Stone was willing to testify for Jones had he been asked.

         But Jones fumbled his Strickland claim in state court by failing to submit an affidavit from Stone, as Illinois law requires. The state appellate court found the claim procedurally defaulted but also rejected it on the merits based on the existing record, holding that the failure to call Stone was a matter of "trial tactics or strategy" and thus immune from constitutional scrutiny.

         Ruling on Jones's § 2254 petition, the district court excused the procedural default based on new evidence of Jones's actual innocence-namely, Stone's testimony. After an evidentiary hearing, the judge concluded that the state appellate court unreasonably applied Strickland and that trial counsel's failure to present Stone's testimony was constitutionally ineffective representation. The judge accordingly granted the petition and ordered Jones retried or released.

         We affirm. The judge's decision to excuse the procedural default was sound, as was his merits ruling. Trial counsel's failure to call Stone cannot reasonably be classified as a mere matter of trial strategy within the range of objectively reasonable professional judgments. Omitting the available testimony of the man who admits to being the lone shooter was both constitutionally deficient performance and prejudicial.

          I. Background

         A. The Murder of Friday Gardner

         Around midday on September 12, 1999, three men wearing masks broke into a second-floor apartment at 6102 South May Street on Chicago's south side. Michael Stone shared the apartment with his cousins Latonya Cheeks, Felicia Anderson, and Michella Anderson. Corey Grant, Felicia's fiance, also lived there. Grant and Michella were home when the break-in occurred, and one of the masked men beat Grant with a baseball bat. The intruders then stole some jewelry, a bag of marijuana, and $200 in cash before fleeing the apartment.

         Stone and Felicia Anderson arrived home soon after the assault and robbery. Stone called Michael Carter, his half-brother, and told him what happened. Carter, whose nickname is "Junior, " was upset by the news. Driving in his car not far from the May Street apartment, Carter spotted his friend Cortez Jones, the petitioner, and told him about the robbery. Jones hopped into the car with Carter and the two men drove to the May Street apartment.

         Carter introduced Jones to the others and the group discussed the identity of the assailants. Suspicion fell on Friday Gardner, a cousin and frequent houseguest of Rena Phillips, who lived in the apartment across the hall. It's not clear who first suggested that Gardner was involved-Carter, Felicia, Michella, or Jones-but everyone assumed the perpetrators came from the neighborhood. And they all knew that Gardner kept a van parked on the street outside the May Street apartment.

         Carter and Jones then left the apartment, located Gardner's van, broke into it, and stole the radio. This was apparently an effort to lure Gardner onto the street. Jones denies participating in this theft, but it's undisputed that he and Carter then left the neighborhood together and did not return until around nine or ten o'clock that evening in response to a page from Stone.

         At about ten o'clock, Gardner appeared on the street outside the May Street apartment. Carter and Jones approached him and got into an argument so heated that Stone, who was still in the second-floor apartment, heard the commotion from the window. The argument also drew the attention of many neighbors.

         Stone kept a .380-caliber pistol in the basement of the apartment building. As the situation on the street intensified, he retrieved the gun and went outside to watch the argument from the alley. Stone maintains that he saw Gardner draw and aim a handgun at Carter and Jones, so he approached from the alley and fired his .380 pistol at Gardner three times. He says he shot Gardner to protect Carter, his half-brother. Two shots hit their mark: Gardner died at the scene with two .380-caliber bullets in his abdomen. Three .380-caliber shell casings were found near the body. No gun was found on Gardner's person, but trial testimony suggested that someone may have removed one from his hand after the shooting.

         Stone, Carter, and Jones fled the scene. Carter and Jones were arrested the next day, and Stone turned himself in to Chicago police the following day. Stone immediately confessed to shooting Gardner using his .380-caliber handgun. He said he did it in defense of his half-brother. The .380 pistol was never recovered; Stone said he threw it in some bushes as he fled the scene.

         B. Trial and State Postconviction Proceedings

         All three men were charged with first-degree murder. The charges against Stone and Carter were tried jointly to a jury. The prosecution's theory was that both Stone and Carter fired shots at Gardner. As an alternative theory against Carter, the prosecutor argued that if Stone alone shot Gardner, then Carter was responsible under an accountability theory because he planned the crime with Stone and helped lure Gardner onto the street. Stone testified in his own defense, telling the jury that he shot Gardner with his .380 handgun to prevent him from shooting Carter. The jury found both defendants guilty. They were sentenced to 30 years in prison. See Carter v. Duncan, 819 F.3d 931, 935-37 (7th Cir. 2016).

         Jones's case was tried separately, and he opted for a bench trial. The prosecution's sole theory at his trial was that Jones was the shooter; accountability theory played no part. The prosecution's case rested on testimony from several eyewitnesses, but their accounts diverged in significant respects.

         As we've noted, Gardner's cousin Rena Phillips lived in the apartment across the hall from Stone and his cousins. Her son Antonio lived with her, and both Phillipses testified that they saw Jones shoot Gardner at very close range. Antonio said he watched the argument from his apartment window and saw Jones pull out a gun; he said Carter also had a gun. He testified that Jones was so close to Gardner that he had to take a step back in order to extend his arm and fire the first shot. He estimated that Jones's gun was only about an inch away from Gardner when he pulled the trigger. Antonio testified that after the first shot was fired, he ran down the stairs and heard two more shots as he ran. When he reached the street, he saw Carter and Jones running away from the scene.

         Rena Phillips said she and her boyfriend Paul Calmese had just pulled up outside the building when the confrontation started. Tommy Gaston, a friend of Gardner's, was also on the street that night. Rena testified that she saw Jones shoot Gardner twice at close range. She also said Carter had a gun and fired shots at Gardner.

         Gaston's version of events was quite different. He said he didn't see a gun in Jones's hand but thought he might have had one in his coat pocket and may have fired a shot through his coat. Gaston's testimony conflicted with the account he gave on the night of the shooting. Back then he told the police that he saw Stone emerge from the alley and ...


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