In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-1005

ANTHONY D. LEE, SR.,

Petitioner-Appellant,

v.

KEVIN KINK, Warden, Lawrence Correctional Center,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 C 00183 — Edmond E. Chang, Judge.

____________________

ARGUED OCTOBER 22, 2018 — DECIDED DECEMBER 21, 2018 —

AMENDED ON DENIAL OF REHEARING JANUARY 25, 2019

____________________

Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.

EASTERBROOK, Circuit Judge. After a bench trial, Anthony 

Lee was convicted of kidnapping and rape. He is serving 

sentences that add to 100 years’ imprisonment. The statecourt judge found that Lee and his friend Burlmon Manley 

forcibly abducted L.M. about 1 A.M. one day, dragging her 

into their blue Cadillac while she kicked and screamed. Both 
2 No. 18-1005

Manley and Lee struck and raped L.M. When L.M. resisted,

Lee retrieved a pistol from the car’s trunk to make her more 

cooperative. About 3 A.M. L.M. escaped and ran naked to a 

nearby house. Police took pictures of L.M.’s bloody face. Lee, 

the only defense witness, said that L.M. entered the car voluntarily and that he did not touch her sexually—though before trial Lee said that he and L.M. had consensual oral sex. 

The state judge found that L.M.’s testimony about her ordeal 

was “very credible” and stated that the pictures showing her

injuries, and the testimony of the person who opened the 

door to L.M., negated the defense of consent. Lee’s convictions were affirmed on direct and collateral review. See People v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).

Lee’s federal petition under 28 U.S.C. §2254 contends that 

he did not receive effective assistance of counsel. He asserts 

that before trial his lawyer received five affidavits that corroborated Lee’s story or provided exculpatory details, but 

that counsel did not interview the affiants. In Lee’s postconviction proceedings the state judiciary did not hold an 

evidentiary hearing. The appellate decision concluded that 

none of the five affidavits is necessarily inconsistent with 

Lee’s guilt, while the evidence against him is strong, so the 

absence of these witnesses at trial was not prejudicial. The 

federal district judge held that the state court’s decision was 

not unreasonable, and he denied Lee’s petition. Lee v. Lamb, 

2017 U.S. Dist. LEXIS 198451 (N.D. Ill. Dec. 4, 2017).

The state court’s decision includes the text of the affidavits, and the district court’s decision summarizes them. It is 

enough for current purposes to give the flavor of how those 

courts treated the affidavits. Here is the district court’s dis-
No. 18-1005 3

cussion of affidavits signed by Brian and Gayland Massenburg:

[T]he Massenburgs stated that they witnessed a white woman 

get into a blue Cadillac. If the woman was indeed L.M., this testimony would have contradicted L.M.’s assertion that she was 

dragged kicking and screaming into the car, and would have 

supported Lee’s testimony that L.M. willingly joined him and 

Manley. But, as the [Illinois] Appellate Court noted, there are 

some problems with the proposed testimony. First, the Massenburgs identified the wrong date in their affidavits, stating that 

the event they witnessed was on April 16, when the crime in fact 

happened on April 15. Even without the date mix-up, the Illinois 

Appellate Court reasoned that still the Massenburg’s [sic] testimony would not have affected the outcome because their affidavits do not clearly identify L.M., Lee, or Manley. The affidavits 

state only that the Massenburgs saw a white woman get into a 

blue Cadillac with two men, but did not provide names or detailed descriptions. Of course, if defense counsel had called these 

witnesses at trial, then he might have been able to elicit more detail to establish the likelihood that the individuals the Massenburgs saw were the victim and the defendants. But this testimony was not developed (and still has not been developed), and the 

Appellate Court was limited to the affidavits alone. It was not 

unreasonable for the Appellate Court to conclude, on the limited 

record available, that the Massenburg’s [sic] testimony had ambiguities that would diminish its exculpatory value.

2017 U.S. Dist. LEXIS 198451 at *16–17 (footnote and citations 

omiqed). This analysis would be convincing, if the law prevented a court from going beyond the affidavits on collateral 

review. But it does not; a federal court may hold an evidentiary hearing if, through no fault of petitioner’s, the statecourt record lacks essential facts. 28 U.S.C. §2254(e)(2).

The district judge was right to observe that, “if defense 

counsel had called these witnesses at trial, then he might 

have been able to elicit more detail to establish the likelihood 
4 No. 18-1005

that the individuals the Massenburgs saw were the victim 

and the defendants.” At trial the Massenburgs may have 

avoided the date error and positively identified L.M., Lee, or 

Manley. Yet there are many blue Cadillacs in the world, so

the Massenburgs also might have stated that they did not see 

L.M., Lee, or Manley. Perhaps Lee’s lawyer interviewed 

them and they told him these things, which if so would explain why he did not call them at Lee’s trial. Counsel told 

the state judge at a pretrial conference that “I just have not 

had time to meet with all these people”, but we don’t know 

what, if anything, he did to investigate their potential testimony between then and trial. Perhaps he tried to interview

the Massenburgs but could not find them. We just don’t 

know.

The state judiciary’s conclusion that the Massenburgs’ 

testimony would not have helped Lee depends on an unstated belief that, if called at trial, they would have parroted 

their affidavits and refused to say another word. That’s unlikely. They might have provided exculpatory testimony, 

and then, if counsel neglected to contact them (another issue 

on which the record is short of evidence), a finding of ineffective assistance could follow. See, e.g., Washington v. 

Smith, 219 F.3d 620, 631, 635 (7th Cir. 2000); Hall v. Washington, 106 F.3d 742, 749–50 (7th Cir. 1997).

After oral argument we invited counsel for both sides to 

file supplemental briefs addressing whether Lee sought an 

evidentiary hearing in state court, what evidence he proposed to present, and (if Lee asked) why the state judiciary 

declined to hold a hearing. Counsel representing Illinois did 

not respond to this invitation, but Lee responded with enthusiasm and, more important, details. The state-court rec-
No. 18-1005 5

ord contains more than a dozen express requests for evidentiary hearings—and, as far as we could see, no explanation 

by any state judge why these requests were denied. (Indeed, 

most of the requests do not appear to have been ruled on.)

Section 2254(e)(2) begins: “If the applicant has failed to 

develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the 

claim unless the applicant shows that ... .” The “unless” 

clause does not apply, so if Lee “has failed to develop the 

factual basis of [his] claim” he cannot receive an evidentiary 

hearing. Yet the affidavits, plus the multiple requests for 

hearings, show that he did try to develop a record in state 

court.

What one can say against this is that Lee did not articulate in state court, as clearly as his lawyers have articulated 

in this appeal, the subjects that a hearing would have covered: what the affiants would have said, had they been 

called at trial (and whether trial counsel ever met with them 

to learn what they would have said, if called). Yet by asking 

for a hearing to explore an ineffective-assistance theory—a 

theory supported by multiple affidavits—Lee strongly implied what topics would be covered at a hearing. This makes 

it impossible to say that Lee has “failed to develop [in state 

court] the factual basis of” his claim. He did what he could, 

and the absence of evidence about what the trial would have 

been like, had these affiants testified, must be aqributed to 

the state judiciary’s failure to afford him a hearing. He is entitled to one in federal court, and the case is remanded so 

that one can be held and we can learn what his aqorney did 

(or omiqed) and what the affiants would have said on the 

stand at trial. Only once that information has been gathered 
6 No. 18-1005

can the district court make a reliable decision about the ineffective-assistance claim.

Our analysis has an additional implication: By deciding 

the merits without receiving the evidence that Lee sought to 

have considered, the state judiciary acted unreasonably. Illinois observes that Cullen v. Pinholster, 563 U.S. 170, 180–86 

(2011), holds that, when 28 U.S.C. §2254(d)(1) requires a federal court to reject a collateral challenge, the court may not 

hold an evidentiary hearing and consider evidence not presented to the state judiciary. Illinois wants us to treat this as 

equivalent to a rule that state courts may insulate their decisions from federal review by refusing to entertain vital evidence. Yet a state court’s refusal to consider evidence can 

render its decision unreasonable under §2254(d)(2) even 

when its legal analysis satisfies §2254(d)(1).

Section 2254(d)(2) provides that “a decision that was 

based on an unreasonable determination of the facts in light 

of the evidence presented in the State court proceeding” 

lacks the shelter of §2254(d) as a whole. If the affidavits were 

all Lee had offered to the state judiciary, then its decision 

may have been a reasonable application of the law to a reasonable determination of the facts. But Lee wanted to introduce more, and the state barred the door. Pinholster concerns 

the application of §2254(d)(1) to a state court’s legal reasoning; it does not prevent a federal court from finding factual 

aspects of a state court’s decision unreasonable under 

§2254(d)(2). See 563 U.S. at 184–85 & n.7. By assuming that

the language of the five affidavits would have been the totality of the witnesses’ testimony had they been called at trial, 

the state made an unreasonable factual determination under 
No. 18-1005 7

§2254(d)(2), which permits a federal evidentiary hearing under §2254(e)(2).

VACATED AND REMANDED