Cortez Jones v. Victor Calloway
2016 U.S. App. LEXIS 20500
| 7th Cir. | 2016Background
- On Sept. 12, 1999 Friday Gardner was shot and killed; three masked intruders had earlier assaulted residents of an apartment. Michael Stone later confessed to firing three .380 shots; two .380 bullets killed Gardner and three .380 shell casings were recovered.
- Stone and Corey Carter were tried jointly; Stone testified that he alone shot Gardner in defense of Carter and both were convicted. Cortez Jones was tried separately in a bench trial; the prosecution argued Jones was the shooter based largely on conflicting eyewitness accounts. Jones was convicted and sentenced to 30 years.
- Jones’s postconviction petition in Illinois faulted trial counsel for not calling Stone as an exculpatory witness; the petition was summarily dismissed because Jones failed to include an affidavit from Stone as required by Illinois law. The Illinois Appellate Court also held the omission was trial strategy and not ineffective assistance.
- In federal habeas proceedings under 28 U.S.C. § 2254, the district court excused the state procedural default based on newly presented testimony from Stone and other witnesses (actual-innocence gateway per Schlup), held the Illinois court unreasonably applied Strickland, found counsel deficient for not calling Stone, found prejudice, and granted relief (retrial or release).
- The Seventh Circuit affirmed: credited Stone’s consistent confession and testimony, concluded the new evidence raised reasonable doubt such that no reasonable juror would convict, and held the state appellate court unreasonably applied Strickland by treating omission as unquestionable strategy and misapplying the prejudice standard.
Issues
| Issue | Jones's Argument | Illinois's Argument | Held |
|---|---|---|---|
| Procedural default — can Jones get merits review? | Jones argued actual-innocence gateway (new, reliable evidence: Stone’s testimony) excuses default. | Illinois contended state procedural bar (no Stone affidavit) precludes federal review. | Court held Stone’s new, consistent testimony met Schlup’s gateway; merits review excused. |
| Whether state court unreasonably applied Strickland by treating failure to call Stone as strategy | Counsel’s omission was not a reasoned strategic choice and lacked justification; summary treatment was unreasonable. | State court characterized omission as trial tactics immune from review. | Court held the appellate court unreasonably applied Strickland; presumption of strategy inapplicable without record support. |
| Deficiency of counsel’s performance | Dosch offered no objectively reasonable reason; he admitted Stone’s testimony would be helpful and knew its contents. | Illinois implied counsel acted strategically or prudently given police-report inconsistencies. | Court held counsel’s failure to call a known, material, exculpatory witness was constitutionally deficient. |
| Prejudice under Strickland (and §2254(d)) | Stone’s confession/testimony, consistent with physical evidence and some witnesses, created a reasonable probability of a different outcome. | Illinois argued prior convictions and jury rejection of Stone’s defense show Stone would not have helped; accountability theory could still convict Jones. | Court held prejudice established: reasonable probability of acquittal; accountability theory unsupported for Jones; §2254(d) satisfied and relief warranted. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance test: deficient performance and prejudice)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence gateway to overcome procedural default requires new, reliable evidence and that no reasonable juror would convict)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (actual-innocence showing can excuse procedural default or statute-of-limitations defenses)
- House v. Bell, 547 U.S. 518 (2006) (federal courts must assess overall record, old and new, when considering actual-innocence gateway)
- Williams v. Taylor, 529 U.S. 362 (2000) (clarifies Strickland prejudice versus standards for federal habeas review)
- Mosley v. Atchison, 689 F.3d 838 (7th Cir. 2012) (court cannot label omissions strategic without record support; §2254(d) review of state-court Strickland rulings)
- Coleman v. Lemke, 739 F.3d 342 (7th Cir. 2014) (discusses limits on credibility of codefendant testimony and standards for excusing procedural default)