January 19, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 08 C 4429 - James
B. Zagel, Judge
Easterbrook, Rovner, and Sykes, Circuit Judges.
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.
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.
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.
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.
The Murder of Friday Gardner
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.
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.
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.
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.
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
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
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.
Trial and State Postconviction Proceedings
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).
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
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.
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.
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 ...