Argued November 10, 2014
Appeal from the United States District Court for the Central District of Illinois, Urbana Division. No. 08-2157--Harold A. Baker, Judge.
For TESHOME CAMPBELL, Petitioner - Appellant: David J. Harth, David R. Pekarek Krohn, Truscenialyn Brooks, Attorneys, PERKINS COIE LLP, Madison, WI.
For DAN REARDON, Warden, Respondent - Appellee: Erin O'Connell, Attorney, OFFICE OF THE ATTORNEY GENERAL, Chicago, IL.
Before WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge.
Petitioner Teshome Campbell was convicted in an Illinois state court of first-degree
murder for participating in a mob-style beating that killed James Shepherd. No physical evidence linked Campbell to the crime. The State's case against Campbell hinged on the testimony of three eyewitnesses. Two of these witnesses, Damion Johnson and Steven Peete, had been charged with the murder but were granted full immunity in exchange for testifying against Campbell. Both had serious criminal histories, and both denied any involvement in the crime when they testified at Campbell's trial. The third witness, Rita Butler, testified that Campbell started the fight with the victim, but she saw the fight from inside a van that was parked around the street corner and facing away from the brawl.
In his federal habeas petition, Campbell argues that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He contends that a number of errors support his claim. For example, defense counsel failed to impeach Johnson and Peete with the full scope of their criminal histories and the details of their plea agreements with the State. Campbell also criticizes his lawyer's failure to attend the trial (or to review trial transcripts) of a co-defendant who was acquitted in a separate trial just weeks before Campbell's trial. We do not reach these issues, however, but focus instead on the core of Campbell's petition--that his counsel failed to conduct an adequate pretrial investigation by failing to interview three witnesses who would have said that Campbell played no role in the fatal attack on Shepherd.
These witnesses and at least part of the information they could provide were in police reports provided to Campbell's lawyer before trial. Toni Leonard told police that two other men--not Campbell--started the fight with the victim. This statement flatly contradicted prosecution witness Rita Butler's testimony, as well as the State's entire theory of the case that the fight began when Campbell attacked the victim. Ms. Leonard also told police that prosecution witness Damion Johnson participated in the beating, which contradicted Johnson's testimony that he was not involved. Another eye-witness, Leroy Hunter, told police that prosecution witness Steven Peete hit the victim three or four times with " some-thing that looked like a pipe, or a big stick." This statement contradicted Peete's testimony that he was also not involved. A third eyewitness, Ieca Hunter, witnessed the beating but told police that she could not identify any of the assailants. According to an affidavit that was presented to the state courts, though, she would have been able to identify Campbell as someone present at the scene who did not participate in the beating. According to her affidavit, Campbell was standing directly in front of her house, apart from the group of men who participated in the beating, and he " never touched" the victim. Neither Ms. Leonard, Mr. Hunter, nor Ms. Hunter was called to testify in Campbell's defense at trial.
The state courts assumed, as we must on appeal, that Campbell's lawyer never contacted these eyewitnesses to interview them. The state courts rejected Campbell's ineffective assistance of counsel claim anyway, holding that under Strickland (1) counsel receives wide latitude to make strategic decisions about which witnesses to call and which theory or theories to present to the jury, and (2) Campbell's lawyer reasonably declined to interview Ms. Hunter because the police report implied that such an interview would be fruitless. We hold that the state courts unreasonably applied Strickland when they rejected Campbell's ineffective assistance of counsel claim.
That determination does not entitle Campbell to a writ of habeas corpus, at least not yet, but calls for further proceedings to determine the actual facts. The state courts and the federal district court rejected Campbell's ineffective assistance of counsel claim without ever addressing key factual questions: whether Campbell's lawyer in fact interviewed these witnesses and whether they would have testified credibly and consistently with their affidavits and statements to the police. On these factual issues, we have no factual findings to review and the record is otherwise ambiguous. To be sure, affidavits from two of the three exculpatory witnesses (Mr. Hunter and Ms. Hunter) say that Campbell's lawyer never contacted them. But these affidavits, which were part of the state court record, have not been tested through the adversarial process at any kind of hearing. There also is no affidavit from the third exculpatory witness (Ms. Leonard) or the lawyer himself, let alone a record of live testimony. Accordingly, we reverse the denial of Campbell's petition and remand to the district court to resolve these factual questions, as we explain in more detail below.
I. Factual and Procedural Background
A. The Murder of James Shepherd
James Shepherd was beaten to death by a group of men in the early morning hours of Christmas Day in 1997. The beating occurred on a street in Champaign, Illinois. The State initially charged twelve men with first-degree murder, but it eventually dismissed charges against four of them. Three defendants entered plea agreements and were sentenced to varying terms of imprisonment. Two other defendants, Damion Johnson and Steven Peete, were granted full immunity in exchange for testifying against the remaining three defendants. One defendant, Theodis White, was convicted and sentenced to 45 years' imprisonment. Another, Bobby Joe Douglas, was tried and acquitted. The remaining defendant was petitioner Teshome Campbell, who was convicted and sentenced to 55 years in prison. Campbell maintains his innocence.
B. Campbell's Trial
Before trial Campbell asked the court to appoint counsel for him. In January 1998 the court appointed attorney Harvey Welch to represent him. Although Campbell was facing a first-degree murder charge, his lawyer did not record doing any work on Campbell's case until five months later, in June 1998. The first twelve entries on the lawyer's billing statement are for the preparation of a trial notebook. No entries indicate that the lawyer conducted any pretrial witness interviews. Nor is there any evidence that the lawyer hired a private investigator.
Campbell went to trial in October 1998. No physical evidence linked Campbell to the crime. The prosecution's case rested almost entirely on the testimony of three eyewitnesses: Damion Johnson, Steven Peete, and Rita Butler. Johnson and Peete had been charged initially with Shepherd's murder and testified against Campbell in exchange for full immunity. Both had extensive criminal histories.
Butler was with Shepherd before his death on the night of the beating.
1. Rita Butler's Testimony
Rita Butler testified that she was walking home early Christmas morning when Shepherd pulled up beside her in a van and asked her to get in. She agreed. Shepherd asked Butler if she knew where they could buy some crack cocaine. Butler directed him to the 200 block of Bellefontaine Street. When they arrived, Butler saw a man on the street from whom she had bought drugs before. She did not know the man by name but recognized his face, and she later identified Campbell as that man. She took money from Shepherd, approached the man on the street, and bought a $20 bag of what she believed to be crack cocaine and returned to the van. Butler and Shepherd then drove to another location to smoke it.
When Shepherd tried to smoke it, he discovered that the substance was fake. Intent on getting his money back, Shepherd drove back toward Bellefontaine Street and parked the van around a corner, facing away from where Butler had initially bought the fake drugs from the man standing on Bellefontaine Street. Shepherd got out of the van. Butler stayed in the passenger seat. From inside the van, she looked back toward the corner of Bellefontaine Street and watched what happened next.
Butler testified that there were " a lot of people standing out" on the street. Butler saw Shepherd approach the man who had sold her the fake cocaine and demand his money back. The man shouted back at Shepherd, and the two men began to fight. She did not see who threw the first blow. As the two men fought, eight or nine other people joined in and began hitting and kicking Shepherd. Shepherd fought back but eventually fell to the ground. The last time Butler saw Shepherd, there was " a crowd" of men beating him as he lay in the middle of the street. She ran away.
2. Damion Johnson's Testimony
The prosecution's next eyewitness was Damion Johnson. He was arrested in late January 1998. Upon his arrest, he gave police a taped statement about what he saw on the night of the incident. According to this original taped statement, Shepherd approached Campbell in the street. Shepherd yelled at Campbell, demanding his money back. Campbell and Shepherd then began fighting. Bobby Joe Douglas jumped into the fight, but Campbell fought his way out of the melee and walked over to the sidewalk. From there he watched the fight escalate, but he never rejoined it. According to Johnson's statement, Douglas, Lamarcus Townsend, Juanchez Booker, and Theodis White were the primary participants in the fatal beating.
In April 1998, though, Johnson changed his story. In exchange for full immunity on the first-degree murder and related charges, he agreed to testify against Campbell. At trial Johnson testified that on the night of the incident, he was inside a cousin's residence until he heard gunshots. He walked outside and saw a van driving down Bellefontaine Street. The man driving the van was yelling that he wanted " the real thing or his money back." The driver parked the van and approached Campbell on foot. A fight broke out. Johnson testified that Campbell, Booker, Townsend, White, and Douglas all participated in the beating. According to Johnson, Shepherd did not fight back.
At Campbell's trial, Johnson denied any participation in the fatal beating. He said
he witnessed the incident while standing on a sidewalk, away from the fight. He also testified that he did not see Steven Peete kick or punch Shepherd. When Johnson heard police sirens, he fled the scene.
3. Steven Peete's Testimony
The prosecution's final eyewitness to the murder was Steven Peete. He testified that on the night of the incident he was asleep in his house when his fiancé e woke him up, saying that she had heard gunfire. He opened the front door and looked outside. He saw a man being beaten directly in front of his house, about 10 feet away. Peete testified that when he first saw the man, he was already on the ground, trying to fight back. Seven or eight people had surrounded him and were kicking and punching him.
Peete testified that there was a streetlight near his house, and he could see several of the men's faces. He identified White, Douglas, Booker, Townsend, and Campbell as participants in the beating. He testified that Johnson was in front of his bushes outside of his house, and that he was not part of the crowd beating Shepherd. Peete yelled at the crowd to get away from his house, and the men dispersed. After the crowd dispersed, Peete went inside his house and back to sleep. Like Johnson, he denied any participation in the beating.
4. The Defense Trial Strategy
Defense counsel did not call any witnesses on Campbell's behalf. The only evidence he put on was a stipulation that during the investigation, police seized several items of clothing from Douglas and White that had Shepherd's blood on them.
During cross-examinations of Johnson and Peete, defense counsel did not impeach them with the full scope of their criminal histories or the details of their plea agreements with the State. In particular, counsel did not impeach Johnson with a prior juvenile adjudication for felony aggravated battery. Nor did he impeach Peete with a prior juvenile adjudication for felony mob action--a crime that took place less than three years before Shepherd's beating. Both of these crimes were among the charges against Campbell.
Defense counsel also failed to elicit testimony that at the time Johnson agreed to testify against Campbell, he was facing prison time for two reasons separate and apart from the dropped first-degree murder charges: (1) he had been conditionally discharged on an adult felony conviction for unlawful use of a weapon in 1997, only one year before Shepherd's murder, and (2) there was a pending petition to revoke his probation for a domestic battery incident. Both of these facts gave Johnson an even stronger incentive to cooperate with the State. The jury never heard these details.
During closing argument, Campbell's lawyer offered four ...