Stephen Toliver v. Gary McCaughtry
2012 U.S. App. LEXIS 16262
7th Cir.2012Background
- Toliver imprisoned for 1992 first-degree intentional homicide as a party to a crime; district court granted habeas relief on ineffective-assistance, denied on Brady claim.
- On prior appeal (Toliver I), court found trial counsel's omissions prejudicial but remanded for factual development on objective reasonableness and on whether prosecutor received an exculpatory letter.
- Affidavits from Angeal Toliver and Harvey Toliver claimed they would testify to Oliver acting alone; Toliver argued counsel failed to interview them.
- Affidavit from Cornell Smith described a letter claiming Toliver urged Oliver not to kill Rogers; Wisconsin courts had not resolved whether prosecutor received it.
- Evidence hearing on remand examined counsel’s rationale for not calling Angeal/Harvey and whether Smith’s letter was received; counsel’s death limited live testimony.
- District court found deficient performance for failing to call Angeal/Harvey; could not prove Smith’s letter was received, so no Brady violation found.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was trial counsel deficient for failing to call Angeal and Harvey? | Toliver: witnesses would corroborate defense; bias not curing lack of testimony. | Pollard: strategic choice; family relationship justified not calling; no prejudice shown. | Deficient performance established; prejudice shown on remand. |
| Did the district court correctly address Brady/non-disclosure of Smith's letter? | Toliver: letter was exculpatory; State may have received it and hidden it. | Pollard: no proof State received letter; record ambivalent. | No clear proof State received letter; no Brady violation established. |
| Should the evidentiary hearing on remand be allowed under AEDPA and Pinholster? | Toliver: hearing necessary to develop facts not addressed by state court. | Pollard: Pinholster limits federal fact-finding; hearing improper for d1 claims. | Evidentiary hearing proper; remand proceeding permitted. |
| Does Harrington deference limit our review of prejudice under AEDPA? | Toliver: de novo review appropriate for unreasonable prejudice finding. | Pollard: Harrington restricts de novo review; apply AEDPA standard. | We apply AEDPA deference; previous prejudice ruling remains valid. |
| What is the governing standard for evaluating ineffective assistance on remand? | Toliver: new evidence demonstrates deficient performance and prejudice. | Pollard: limited new evidence cannot overturn prior determinations without showing unreasonable conduct. | Under Strickland, deficiency shown; prejudice established by corroboration gap. |
Key Cases Cited
- Toliver v. McCaughtry, 539 F.3d 766 (7th Cir. 2008) (ineffective assistance; remand for fact-finding)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA deference clarified; limits de novo review)
- Pinholster v. Cullen, 131 S. Ct. 1388 (2011) (limits federal evidentiary review to state-court record on d1 claims)
- Wiggins v. Smith, 539 U.S. 510 (2003) (evidentiary development under Strickland)
- Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006) (federal evidentiary standards on remand)
- Newell v. Hanks, 335 F.3d 629 (7th Cir. 2003) (diligence requirement for developing facts; opening clause 2254(e)(2))