Argued: May 21, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 248 -- Joan B. Gottschall, Judge.
For Christopher Mosley, Petitioner - Appellee: Michael T. Brody, Attorney, Jenner & Block Llp, Chicago, IL.
For Kim Butler, Respondent - Appellant: Katherine M. Doersch, Attorney, Office of The Attorney General, Chicago, IL.
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
Rovner, Circuit Judge.
The State for a second time appeals the district court's decision granting Christopher Mosley's petition for a writ of habeas corpus, 28 U.S.C. § 2254. In the first appeal, we agreed with the district court that the state court decision denying relief on Mosley's claim of ineffective assistance of counsel rested on an unreasonable determination of facts and an analysis that was contrary to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mosley v. Atchison, 689 F.3d 838, 849-51 (7th Cir. 2012). Thus, 28 U.S.C. § 2254(d) no longer dictated that the district court defer to the state court's opinion. We remanded the case to the district court to review additional evidence, make findings of fact based on that evidence, and decide if Mosley was in custody in violation of the Constitution and, thus, entitled to a writ of habeas corpus, 28 U.S.C. § 2254(a). See Mosley, 689 F.3d at 854. We also held that, if the evidence corroborated Mosley's allegations, then his conviction was unconstitutional. Id. at 841, 852.
On remand the district court held that Mosley's trial attorney had rendered ineffective assistance under Strickland. The court again granted Mosley's petition, and the State again appeals. The State argues that the district court analyzed the state court's decision under § 2254(d), instead of analyzing independently whether Mosley was being held unconstitutionally under § 2254(a). In answer to the latter question, the State asserts that Mosley was represented by able and effective counsel at trial, and the district court's conclusion to the contrary rests on erroneous findings of fact.
Although the question is close, we affirm. Though the district court used incorrect language to describe its job on remand, it recognized its duty and correctly reviewed Mosley's Strickland claim under § 2254(a), concluding that counsel had rendered ineffective assistance in violation of Mosley's Sixth Amendment rights. As we explain below, we agree with that assessment. The district court's order to release or retry Mosley is affirmed.
We recounted the facts and history of this case in our prior decision, see Mosley, 689 F.3d at 845-846, so here we discuss only the details relevant to this second appeal.
A. State Court Proceedings
Mosley, who opted for a bench trial, was convicted of first-degree murder and arson under an accountability theory, see 720 ILCS 5/5-2, after an August 1997 apartment fire on the south side of Chicago took the life of an elderly resident. Mosley was a member of the Gangster Disciples, and the State argued that he ordered two younger gang members to set the building afire in retaliation for the actions of a different resident, Marlo Fernando, a rival gang member. Earlier, Fernando's car window was smashed when she refused to pay " taxes" to the Gangster Disciples for selling drugs out of her apartment. She asked Mosley for the repair costs but was never reimbursed, so she began calling the police whenever Mosley or other Gangster Disciples spent time outside her building.
Fernando testified that Mosley had threatened her at least five times before the fire, and that immediately before she realized her building was on fire, she heard Mosley say " burn this motherfucker down." Nailal Ledbetter, a friend of Fernando's, corroborated her testimony, agreeing that between 10:00 and 10:30 p.m. the night of the fire, Mosley ran past the window, looked up, and said " burn this motherfucker down." According to both women, within seconds the building was on fire and smoke had filled the hallways. At the close of the State's evidence, trial counsel moved for a judgment of acquittal, arguing that Fernando's testimony was incredible and therefore insufficient to convict Mosley. The trial court denied the motion. The defense then called only Ishi Coward, who testified that Mosley was in a schoolyard across the street for three hours before the fire. Coward testified that she never heard Mosley order anyone to set the fire or let the building burn. The trial court did not believe Coward and found Mosley guilty of both charges. He was sentenced to consecutive prison terms of 60 years for the murder and 15 years for the arson.
After an unsuccessful appeal, Mosley filed a post-conviction petition in state court, 725 ILCS 5/122 et seq, arguing that he was denied effective assistance of counsel at trial. He asserted that counsel should have called two witnesses to give exculpatory testimony and attached affidavits from both. The first, Keely Jones, swore that she was with Mosley and a
group of others in the schoolyard on the night of the fire from around 8:00 p.m. until the fire began at 10:30 p.m. Jones stated that when the fire broke out, Mosley and the others ran across the street and helped some of the victims. The other witness, Sharon Taylor, was a friend of Mosley's who lived in the apartment directly above Fernando. She stated that from her apartment window she saw Mosley and a group of others in the schoolyard; she never heard him say anything about burning down the building. When the fire started, Mosley and the others ran over from the schoolyard, yelling that the building was on fire, and Mosley rescued Taylor's infant son by catching him as she dropped him from the window. According to the affidavits, both Jones and Taylor unsuccessfully attempted to reach Mosley's attorney by phone, and both spoke with him in court. Counsel told both he would need them to testify, but neither was called to do so during the trial, though both were present.
The trial court reviewed the affidavits and summarily denied Mosley's petition as frivolous and without merit. The court of appeals affirmed that decision, agreeing that counsel's decision not to call the witnesses was reasonable and a matter of strategy. The court also ruled that Mosley was not prejudiced by counsel's actions because " the record shows that the outcome of the trial would not have differed if Jones and Taylor ...