In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3235

DONCHII MALONE,

Petitioner-Appellant,

v.

J.R. WALLS, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 8008—George W. Lindberg, Judge.

____________

ARGUED JANUARY 10, 2008—DECIDED AUGUST 18, 2008

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Donchii Malone was convicted of

two counts of first degree murder in the Circuit Court of

Cook County, Illinois. After challenging his conviction in

the state courts of Illinois, Mr. Malone filed a petition for

a writ of habeas corpus in the United States District Court

for the Northern District of Illinois. The district court

dismissed Mr. Malone’s petition but granted him a certifi-
2 No. 06-3235

cate of appealability. For the reasons set forth in the

following opinion, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

I

BACKGROUND

A. Facts and State Court Proceedings

On the morning of July 22, 1986, Larry Lane, LaRoyce

Kendle and Antonio Stewart were in a car outside of

Lane’s apartment building. Michelle Davis and two men,

later identified by witnesses as Phillip Taylor and Mr.

Malone, approached the car. Davis asked the three men

in the car if they wanted to fight. Kendle and Lane exited

the car. Shots were fired, resulting in the deaths of Kendle

and Lane. Stewart, Davis, Taylor and Mr. Malone fled the

scene.

1.

Davis, Taylor and Mr. Malone were arrested and charged

with the murders of Lane and Kendle. Although all three

of the defendants were tried jointly, Mr. Malone exercised

his right to be tried by a jury, while Davis and Taylor opted

for a bench trial.

During the trial, two eyewitnesses, Stewart and Oneida

Tate, testified on behalf of the State. A third eyewitness,

Anthony Villanueva, was called by Taylor’s counsel;

Mr. Malone’s counsel chose not to call Villanueva, and,
No. 06-3235 3

therefore, Villanueva testified outside the presence of

Mr. Malone’s jury.

Stewart, who was fifteen at the time of the events in

question, testified that, while sitting in Lane’s car, Davis

approached the car. Davis asked Lane if “all three of us

did we want to box.” Tr. at 493. Lane responded that they

did not want to fight. Kendle and Lane then exited the

car, and Davis repeated her inquiry. Again, Lane responded that they did not want to fight. After some further discussion, Mr. Malone asked Lane, “[W]hat was

up.” Id. at 496. Lane responded, “What you want to be

up?” Id. at 497. At that point, Mr. Malone said, “I’m going

to show you what’s up”; Mr. Malone backed away from

the car and pulled a revolver from his waist. Id. According

to Stewart, Mr. Malone then pointed the weapon at

Lane’s head and fired twice. Stewart further stated that

Kendle attempted to re-enter the car, but Mr. Malone

also shot him twice. Stewart testified that Davis watched

this scene and laughed and that Taylor pulled a gun and

pointed it at him. At that point, Stewart turned and ran

away. As he ran, Stewart heard two additional shots

ring out.

Later, after he believed that Mr. Malone, Davis and

Taylor were out of the area, Stewart returned to the scene,

yelling “the bitch popped ‘em, the bitch popped ‘em.” Id.

at 528. When the police arrived, Officer Teddy Williams

interviewed Stewart. On cross-examination, Stewart

admitted that, upon first talking with the police, he

identified only Taylor and Davis as being involved in

the shooting. Although he knew Mr. Malone, Stewart
4 No. 06-3235

In addition to testifying about the events surrounding the 1

shooting, Stewart testified that there had been an altercation

on the evening prior to the shooting that involved all of the

parties except Mr. Malone. Specifically, he, Lane and Kendle

were together when Lane “snatched [Taylor’s] hat off” because

the hat displayed a symbol of a rival gang. Tr. at 487. Lane set

the hat on fire and gave it to Stewart. Stewart then threw the

hat into a crowd of people, and it hit Davis on the left side of

her face. Stewart testified that Davis told him that “[s]he was

going to get me.” Id. at 489.

did not identify Mr. Malone as being involved until two

o’clock that afternoon, after viewing a photo array at the

police station. He identified Mr. Malone in a lineup at

approximately 4:30 p.m.1

The jury also heard the testimony of Oneida Tate. Tate

lived in the apartment overlooking the crime scene. On the

morning of the shooting, Tate was awakened by people

talking on the street below her apartment. She described

one of the men as wearing green hospital pants and a

yellow t-shirt; Tate stated that she did not see this man’s

face. She described the second man as dark-skinned and

wearing a Chicago Cubs hat, a dark jacket and blue jeans.

Although Tate did not know personally the man in the

Cubs hat, she testified that she recognized him as being

from the neighborhood. After she had returned to bed,

Tate heard shots fired. From the window, she saw Davis

running down the street with a gun and two men

running in the opposite direction. She heard Stewart

shout “the bitch popped ‘em.” Tr. at 848. Tate called the

police immediately. She was interviewed later that after-
No. 06-3235 5

After the shooting, Villanueva spoke to Detective Jack 2

Markham. Villanueva told Markham that he had seen Davis

and Stewart running away from the scene after he heard the

gunshots.

noon, and, in the evening, picked Mr. Malone out of a

lineup as one of the individuals she had seen prior to the

shooting. At trial, Tate identified Mr. Malone as the

individual she had seen wearing the Cubs hat.

In addition to Stewart and Tate, co-defendant Taylor

called Anthony Villanueva to testify. Villanueva witnessed the events on the morning of July 22, 1986, from

his basement apartment, which looked directly out onto

the scene of the shooting. Villanueva testified that, prior

to the shooting, he had been friends with both Lane and

Kendle. He also stated that Taylor was an “associate”—someone he would speak to regularly, but whom

Villanueva did not consider to be a “friend.” Tr. at 940-41.

Finally, he testified that he knew Davis by sight as

“Michelle,” but did not know her last name. On the

morning of the shooting, Villanueva was getting ready

for school and observed Davis, Stewart, Lane, Kendle

and two other men, whom he did not know, out on the

street; Davis and Stewart were arguing. Villanueva was

able to see the other two men for approximately two to

three minutes before the shooting. After the shooting,

Villanueva heard Davis say “they got popped” and heard

Stewart say that Davis “didn’t have to do all that.” Id. at

938. Villanueva further testified that Taylor was not one 2

of the two men he had seen. On cross-examination, the

prosecutor asked Villanueva whether he knew a person
6 No. 06-3235

In addition to Villanueva’s testimony, the jury also heard

3

testimony from Officer Teddy Williams. Officer Williams

testified to his interview with Stewart following the shooting.

During that interview, Stewart described the shooter as

wearing a “Cubs hat, T-shirt and blue jeans” and as having

“brown eyes, black hair, light complexion, [and] no scars,” Tr. at

916; Mr. Malone, however, is not light skinned. Although Mr.

Malone’s counsel did cross-examine the State’s witnesses,

counsel did not use Stewart’s earlier statements to the police

to impeach his in-court testimony.

named Donchii Malone; Villanueva responded that he

did not know him, but had heard of him. Id. at 941-42.

Villanueva further stated that he would not “know Donchii

Malone if he saw him” and would not know if the person

“who did the shooting was a person by the name of

Donchii Malone.” Id. at 942. The prosecutor then asked

Villanueva the following question: “Of the six people

that you saw out there at the time of the shooting. Would

you look around the courtroom and tell us if you see

any of those six people in here anywhere in the courtroom?” Id. at 950. In response, Villanueva pointed to

Davis; although Mr. Malone was present in the courtroom at the time, Villanueva did not identify him as one

of the individuals present during the shooting. As noted

above, Villanueva’s testimony was presented outside

the presence of Mr. Malone’s jury; after hearing this

testimony, Mr. Malone’s counsel did not seek to reopen

Mr. Malone’s case to offer Villanueva’s testimony.3

At the conclusion of the evidence and arguments, Mr.

Malone’s co-defendants were acquitted by the court. Mr.

Malone, however, was convicted by the jury.
No. 06-3235 7

During his death penalty hearing, Mr. Malone’s counsel

called Detective Markham and questioned him about

Villanueva’s account of the events surrounding the shooting. The State’s attorney objected. After an explanation

regarding the facts that Mr. Malone’s counsel sought to

elicit, the court asked the following questions:

Court: Why didn’t you go into those at trial?

Counsel: As a matter of trial strategy, I didn’t go into them

at that time but this conversation that Detective

Markham had with Anthony Villanueva, I believe, your Honor, is very relevant for the purpose of the death penalty sentencing here.

Court: Well, would it not be of assistan[ce] to the jury if

it was relevant?

Counsel: Well, as a matter of trial strategy, I didn’t ask

Detective Markham during the trial but at this

sentencing hearing, I, your Honor, would like to

put into evidence what Anthony Villanueva

told Detective Markham.

Tr. at 1139. After briefly reviewing Villanueva’s testimony,

the trial court allowed Mr. Malone’s counsel to proceed;

the court stated: “I recognize it is hearsay and I recognize

that, for whatever reason, [counsel] had an opportunity

to cross examine this witness and did not. But I will let

him proceed.” Id. at 1141.

After the hearing, the court sentenced Mr. Malone to

natural life in prison. In rendering its sentence, the court

expressed doubts about the reliability of Stewart’s testimony: “The testimony of the principal witness, Antonio

Stewart . . . is certainly a novel experience for the jury and
8 No. 06-3235

In state post-conviction proceedings, appellate counsel filed 4

an affidavit asserting that he had been ineffective for failing

to raise trial counsel’s ineffectiveness.

the judge. Here is a fellow who was mixed up with these

gangs, who was certainly high on something that night.

I couldn’t even be sure what time it was when he

saw anything.” Tr. at 1217.

Mr. Malone filed an appeal. In his appeal, Mr. Malone

did not raise any claim of ineffective assistance of trial

counsel; appellate counsel mistakenly believed that the

issue could not be raised on direct appeal. The state 4

appellate court affirmed Mr. Malone’s conviction, and the

Supreme Court of Illinois denied leave to appeal.

2.

Mr. Malone then sought post-conviction relief in state

court. Among the issues raised in the petition were ineffectiveness of trial counsel for failing to call Villanueva

and ineffectiveness of appellate counsel for failing to

raise trial counsel’s performance on direct review. The

post-conviction court ruled that appellate counsel had

not provided ineffective assistance. With respect to ineffective assistance of trial counsel, the court stated:

Now, no affidavit from Anthony Villanueva. Perhaps

had the evidence been stronger concerning the position

you assert, an affidavit would not be necessary. However, in order to accept the petitioner’s position,

I would have to infer and read between the lines and

draw inferences. And that’s not appropriate for post
No. 06-3235 9

In 1992 and again in 1995, Stewart filed affidavits recanting his 5

trial testimony and stating that the State had pressured him to

identify Mr. Malone. In a 1999 affidavit, Stewart then recanted

the earlier affidavits saying that those had been executed in

response to threats by Mr. Malone’s associates. However, when

the evidentiary hearing began, Stewart repudiated the 1999

affidavit and testified consistent with the 1992 and 1995 affidavits.

conviction. And so, given that, you should have an

affidavit and you don’t. And I’m not going to accept

that you that your arguments concerning what certain

testimony meant, inferences can be derived is appropriate for purposes of this proceeding because I don’t

think that it is.

S.A. 37. The state post-conviction court went on to deny

summarily the ineffective assistance claims and all other

post-conviction claims with the exception of the allegation that Mr. Malone’s due process rights had been violated through the State’s use of Stewart’s allegedly perjured testimony. Following an evidentiary hearing, 5

however, the court determined that Stewart’s initial

testimony implicating Mr. Malone was credible.

In the appeal following the denial of post-conviction

relief, Mr. Malone raised two issues. The first issue was

stated accordingly:

Donchii Malone was denied the effective assistance

of counsel on direct appeal where appellate counsel

failed to raise trial counsel’s ineffectiveness: (A) in not

investigating or calling Anthony Villanueva, a witness

in co-defendant’s case, as a witness in the defense case-
10 No. 06-3235

in-chief to rebut the testimony of the state’s star

witness, Antonio Stewart; and (B) in not adducing

testimony of the police officer Teddy Williams, who

also testified at co-defendant’s trial and who would

have contradicted key witness Stewart’s description of

the shooter. Where the evidence was extremely close

and where the state’s case against the defendant

hinged on the untrustworthy testimony of one witness

(Stewart), trial counsel’s lapses clearly affected the

outcome of Malone’s case before his jury.

R.19, Ex. E at I.

In resolving this issue, the appellate court noted that

Mr. Malone was contending “that he was denied the

effective assistance of counsel at trial” by failing to call

Villanueva or Williams. R.19, Ex. H at 6. The court then

observed: “Because this testimony was part of the record

on appeal, defendant could have raised this issue on direct

appeal. Generally, defendant’s failure to raise this issue

on direct appeal would result in waiver. However, the

waiver rule is relaxed when a defendant alleges that failure

to raise an issue on appeal constituted the ineffective

assistance of counsel.” Id. at 6-7 (citations omitted). The

appellate court then correctly identified Strickland v.

Washington, 466 U.S. 668 (1984), as the standard according

to which counsel’s performance should be measured. It

described the standard accordingly:

A defendant must show both a deficiency in counsel’s

performance and prejudice resulting from the alleged

deficiency. People v. Edwards, 195 Ill. 2d 142, 162 (2001),

citing Strickland, 466 U.S. at 687. To show a deficiency

in counsel’s performance a defendant must establish
No. 06-3235 11

that counsel’s performance fell below an objective

standard of reasonableness. Edwards, 195 Ill. 2d at 162-

63. To demonstrate prejudice a defendant must establish that there is a reasonable probability, that, but

for the alleged errors, the outcome of the proceeding

would have been different. Edwards, 195 Ill. 2d at 163.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome of the proceedings. Strickland, 466 U.S. at 694.

Id. at 7 (parallel citations omitted).

Turning to “the underlying issue” in the appeal—“whether trial counsel was ineffective for failing to

call Villanueva and Williams”—the appellate court believed that it was “appropriate to begin our analysis with

an examination of the prejudice prong of the Strickland

analysis.” Id. at 8. It stated:

We have carefully considered the testimony of

Stewart and Tate which identified defendant in light

of the testimony of Villanueva and Williams which

defendant claims was withheld from the jury as the

result of trial counsel’s ineffectiveness. We determine

that absent the alleged deficiencies the jury would

have heard testimony that tended to cast doubt on the

identification. However, we also determine that,

although this additional testimony would have affected the weight accorded the identification testimony of Stewart and Tate, the effect of the alleged

deficiencies was not so significant as to cast doubt on

the outcome of the trial. Therefore, we conclude that

defendant cannot establish that the outcome of the

trial would have been different absent the alleged
12 No. 06-3235

deficiencies of trial counsel. Accordingly, defendant

cannot establish that he was denied the effective

assistance of counsel either at trial or on direct appeal.

Therefore, the trial court did not err when it dismissed

this allegation of defendant’s postconviction petition.

Id. at 9. The Supreme Court of Illinois denied Mr. Malone’s

petition for leave to appeal.

In March 2003, Mr. Malone filed a second, pro se postconviction petition. This petition was summarily dismissed by the Cook County Circuit Court. The Illinois

appellate court affirmed the dismissal on December 23,

2004.

B. District Court Proceedings

On December 10, 2004, Mr. Malone filed a pro se petition

for a writ of habeas corpus in federal court. The district

court denied eleven of Mr. Malone’s claims, but it granted

an evidentiary hearing on the issues of whether trial

counsel was ineffective for failing to call Villanueva and

whether appellate counsel was ineffective for failing to

raise trial counsel’s failure on direct appeal. See R.27 at 7.

The State moved for reconsideration of this ruling. It

argued that the district court did not have the authority

to hold an evidentiary hearing on the claim of ineffective

assistance of trial counsel because Mr. Malone had failed

to develop the factual basis of his claim in state court;

specifically, Mr. Malone had failed to attach an affidavit

from Villanueva to his state post-conviction petition. In

response to the State’s motion, Mr. Malone offered an

affidavit from the public defender’s investigator stating
No. 06-3235 13

Mr. Malone seeks to expand the certificate of appealability to 6

include whether his trial counsel was ineffective in failing to

call Officer Williams for the purpose of impeaching Stewart’s

identification of Mr. Malone. We consider this request with

the merits of Mr. Malone’s claims. See infra at p. 37.

that she had attempted to locate Villanueva during the

state post-conviction proceedings but had been unable to

find him. The district court accepted the State’s argument:

[S]ince in this case the state courts relied on petitioner’s

failure to supply an affidavit in dismissing his ineffective assistance of counsel claim, petitioner’s explanatory affidavit here is simply too late. The court finds

that petitioner failed to develop the factual basis of

his claim in state court, and that this failure to

develop the state court record is attributable to the

petitioner’s lack of diligence.

Since petitioner failed to develop the state court

record on this issue, Section 2254(e)(2) applies. Under

that section, this Court is barred from conducting an

evidentiary hearing unless the petitioner shows that

his claim relies on a new rule of constitutional law or

previously undiscovered facts. Petitioner has not

made such a showing.

R.71 at 2-3 (citations omitted). The district court, however,

granted Mr. Malone a certificate of appealability with

respect to the issue of ineffective assistance of trial counsel

for failing to call Villanueva as a witness. See R.91.6
14 No. 06-3235

In the district court, the State argued not only that Mr. Malone 7

was not entitled to habeas relief, but also that the district court

could not hold an evidentiary hearing on Mr. Malone’s claims

because he had failed to develop the factual record in the state

court as required by 28 U.S.C. § 2254(e)(2). Section 2254 provides:

(2) 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—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient

to establish by clear and convincing evidence that but

for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added).

As noted above, the district court initially ordered an evidentiary hearing on Mr. Malone’s claim of ineffective assistance of

counsel. The State, however, urged the district court to recon-

(continued...)

II

DISCUSSION

A. Procedural Default7
No. 06-3235 15

(...continued) 7

sider its decision because Mr. Malone had not met the requirements of section 2254(e)(2); specifically, he had not attached

an affidavit from Villanueva to his state post-conviction petition (or otherwise explained his failure to do so) as required by

Illinois law. The district court agreed with the State that the

explanatory affidavit from the post-conviction investigator

filed in support of Mr. Malone’s federal habeas claim was too

late—Mr. Malone should have offered this explanation to the

state court. The court then concluded that, “since in this case

the state courts relied on petitioner’s failure to supply an

affidavit in dismissing his ineffective assistance of counsel claim,

petitioner’s explanatory affidavit filed here is simply too late.”

R.71 at 2-3. Because Mr. Malone failed to develop the state-court

record, and because he did not otherwise meet the stringent

requirements of section 2254(e), the district court vacated the

order granting the evidentiary hearing and denied the petition

on the record before it.

On appeal, the State does not urge us to affirm the district

court’s judgment on this basis because “the last state court to

address the merits of that claim did not reject it based on

petitioner’s failure to append Villanueva’s affidavit,” and,

therefore, the failure did not work a procedural default. See

Respondent’s Br. at 21 n.3. We agree. “If the last state court to

be presented with a particular federal claim reaches the merits,

it removes any bar to federal-court review that might otherwise

have been available.” Ylst v. Nunnemaker, 501 U.S. 797, 801

(1991). In the present case, it was the state trial court that referenced the lack of affidavit from Villanueva in ruling on Mr.

Malone’s post-conviction petition. By contrast, the state

appellate court did not hold that Mr. Malone’s post-conviction

petition should have been dismissed because he had failed to

(continued...)
16 No. 06-3235

(...continued) 7

secure an affidavit from Villanueva (or otherwise explain the

absence of such an affidavit); rather, the appellate court reached

the merits of his ineffective assistance claim. Consequently,

because the state appellate court did not rely on the lack of

affidavit in ruling on Mr. Malone’s claims, the lack of affidavit

cannot operate as a procedural bar to federal habeas review.

See Hampton v. Leibach, 347 F.3d 219, 242 n.9 (7th Cir. 2003).

Although the issue of procedural default was raised in the 8

district court, it did not reach the issue because the court held

that Mr. Malone had failed to develop the factual basis for the

claims as required by 28 U.S.C. § 2254(e), and, without the

benefit of additional evidence, the court could not conclude

that a constitutional violation had occurred. See supra note 7.

1.

The State contends that Mr. Malone procedurally defaulted his claim of ineffective assistance of trial counsel

because he did not raise it as an “independent claim

during one complete round of state court review,” Respondent’s Br. at 21, namely the review of his initial state postconviction petition. Whether a party has procedurally

defaulted his claim is a question of law that we review

de novo. See Lieberman v. Thomas, 505 F.3d 665, 670 (7th

Cir. 2007).8

Section 2254 circumscribes a federal court’s ability to

grant habeas relief to prisoners in state custody. Pertinent

to the present case, a federal court may not entertain a

petition from a prisoner being held in state custody

unless the petitioner has exhausted his available state

remedies prior to seeking federal habeas relief. See 28
No. 06-3235 17

28 U.S.C. § 2254(b) provides: 9

(b)(1) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(I) there is an absence of available State corrective

process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of

the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the

requirement unless the State, through counsel, expressly

waives the requirement.

U.S.C. § 2254(b). “This so-called exhaustion-of-state 9

remedies doctrine serves the interests of federal-state

comity by giving states the first opportunity to address

and correct alleged violations of a petitioner’s federal

rights.” Lieberman, 505 F.3d at 669. “Inherent in the

habeas petitioner’s obligation to exhaust his state court

remedies before seeking relief in habeas corpus, see 28

U.S.C. § 2254(b)(1)(A), is the duty to fairly present his

federal claims to the state courts.” Lewis v. Stearnes, 390

F.3d 1019, 1025 (7th Cir. 2004) (citing Baldwin v. Reese, 541

U.S. 27, 29 (2004)). Fair presentment “contemplates that
18 No. 06-3235

both the operative facts and the controlling legal principles must be submitted to the state court.” Williams v.

Washington, 59 F.3d 673, 677 (7th Cir. 1995). It also “requires the petitioner to assert his federal claim through

one complete round of state-court review, either on

direct appeal of his conviction or in post-conviction

proceedings.” Lewis, 390 F.3d at 1025. “A habeas petitioner

who has exhausted his state court remedies without

properly asserting his federal claim at each level of state

court review has procedurally defaulted that claim.” Id.

at 1026.

2.

As noted above, the State maintains that, in his appeal

from the denial of his initial petition for state post-conviction relief, Mr. Malone did not fairly present his claim of

ineffective assistance of trial counsel as an independent

claim. We believe, however, that a fair reading of the

record reveals that Mr. Malone has met this requirement.

To determine whether Mr. Malone fairly presented his

claim, we look at the arguments contained in his brief

before the Illinois appellate court. See Dye v. Hofbauer, 546

U.S. 1, 3-4 (2005) (looking to the claim set forth in the

appellate brief to determine if the claim had been fairly

presented); Baldwin v. Reese, 541 U.S. 27, 32 (2004) (identifying the petition and brief as documents a court should

reference for determining whether the fair presentment

requirement has been met). Mr. Malone’s statement of

points in his brief to the Illinois Appellate Court specifically mentioned his appellate counsel’s ineffectiveness
No. 06-3235 19

for failing to raise his trial counsel’s ineffectiveness, but

it also specifically detailed the ways in which his trial

counsel was ineffective.

Donchii Malone was denied the effective assistance of

counsel on direct appeal where appellate counsel

failed to raise trial counsel’s ineffectiveness; (A) in

not investigating or calling Anthony Villanueva, a

witness in co-defendant’s case, as a witness in the

defense case-in-chief to rebut the testimony of the

state’s star witness, Antonio Stewart; and (B) in not

adducing testimony of the police officer Teddy Williams, who also testified at co-defendant’s trial and

who would have contradicted key witness Stewart’s

description of the shooter. Where the evidence was

extremely close and where the state’s case against the

defendant hinged on the untrustworthy testimony of

one witness (Stewart), trial counsel’s lapses clearly

affected the outcome of Malone’s case before his jury.

R.19, Ex. E at I. Furthermore, in the argument section of

his brief, Mr. Malone makes clear that he is seeking

redress of his trial counsel’s failures: “Donchii Malone

respectfully requests that this Honorable Court remand

this case for a hearing on his claim that his trial counsel

was ineffective, notwithstanding the underlying claims

could have been raised on direct appeal, because

appellate counsel was ineffective in failing to raise those

claims of trial counsel’s ineffectiveness on direct appeal.”

Id. at 11. The introduction to the argument section concludes accordingly: “For the reasons advanced below,

Mr. Malone respectfully requests that this Honorable
20 No. 06-3235

Court find ineffective assistance of both trial and

appellate counsel and reverse his case for a new trial, or

in the alternative, to remand the cause for an evidentiary

hearing.” Id. at 13. Mr. Malone then spends the next

five pages of his brief detailing the factual bases of his

claim of ineffective assistance of trial counsel under the

heading: “Trial Counsel’s Failure in Not Investigating or

Calling Anthony Villanueva, a Witness Who Would have

Severely Undermined the State’s Single Identification

Occurrence Witness Was Manifest Incompetence, Not

Sound Trial Strategy. Appellate Counsel’s Failure in Not

Raising This Meritorious Issue Denied Donchii Malone

the Effective Assistance of Counsel on Appeal.” Id. Specifically, Mr. Malone explained that his trial counsel knew,

prior to the time of trial, that Villanueva was an eyewitness and also that trial counsel had witnessed Villanueva’s

testimony on behalf of Taylor. Mr. Malone then argued that

it was “inexplicable that counsel for Mr. Malone did

nothing to present Villanueva’s crucial testimony to the

Malone jury.” Id. at 15. Mr. Malone also stated that, in the

absence of his counsel’s substandard performance, “there

[wa]s a reasonable probability that the outcome of the

proceeding would [have] be[en] different.” Id. at 17 (citing

Strickland v. Washington, 466 U.S. 668 (1984)). In short,

Mr. Malone set forth not only the factual basis for his

claim, but also the operative legal standard for evaluating

the facts presented.

The State argues that, despite setting forth the factual

basis and legal principles relevant to his claim, Mr. Malone

nevertheless procedurally defaulted his claim of ineffective assistance of trial counsel because it was imbedded
No. 06-3235 21

in his claim of ineffective assistance of appellate counsel.

The State maintains that our decision in Lewis v. Stearnes,

390 F.3d 1019 (7th Cir. 2004), precludes our consideration

of trial counsel’s ineffectiveness unless Mr. Malone

clearly identified the ineffectiveness of trial counsel as

an independent ground for relief.

We do not believe that Lewis precludes federal review

under the circumstances presented here. In Lewis, the

federal habeas petitioner sought relief based on, inter alia,

a tainted identification procedure and a violation of Batson

v. Kentucky, 476 U.S. 79 (1986). We held, however, that the

claims had been procedurally defaulted because they

had not been presented as independent claims for relief,

but only as examples of counsel’s failures. We explained:

Lewis procedurally defaulted Claims 1 (tainted identifications) and 3 (Batson violation). He did not pursue

either of these claims, as such, on direct appeal or in

the post-conviction proceeding. It is true that during

the post-conviction proceeding, Lewis cited his trial

and/or appellate counsel’s failure to pursue these

claims in support of his claims of attorney ineffectiveness. However, an assertion that one’s counsel was

ineffective for failing to pursue particular constitutional issues is a claim separate and independent of

those issues. A meritorious claim of attorney ineffectiveness might amount to cause for the failure to

present an issue to a state court, but the fact that the

ineffectiveness claim was raised at some point in

state court does not mean that the state court was

given the opportunity to address the underlying issue

that the attorney in question neglected to raise. . . .
22 No. 06-3235

Id. at 1026. Here, however, it is clear that Mr. Malone raises

ineffective assistance of appellate counsel as a means for

the court to reach the ineffective assistance of trial counsel, i.e., as the cause for failing to raise the ineffective

assistance of trial counsel claim. This intent is evident

from the opening sentences of the argument section of

his brief; he states:

Donchii Malone respectfully requests that this

Honorable Court remand this cause for a hearing on

his claim that his trial counsel was ineffective, notwithstanding that the underlying claims could have been

raised on direct appeal, because appellate counsel

was ineffective in failing to raise those claims of trial

counsel’s ineffectiveness on direct appeal.

Generally, the issue of whether a criminal defendant

was denied the effective assistance of trial counsel is

waived if not raised on direct appeal. That rule is

relaxed, however, where fundamental fairness requires, such as where the waiver stems from the

incompetency of appellate counsel. . . .

R.19, Ex. E at 11-12. Mr. Malone makes clear that he is

asking the court to redress the failure of his trial counsel,

an issue the court can reach if it determines that his

appellate counsel also was ineffective. His presentation,

therefore, does not suffer from the infirmities that we

identified in the petitioner’s submissions in Lewis.

In sum, Mr. Malone fully set out the factual and legal

bases for his claim of ineffective assistance of trial counsel.

Through his first petition for state post-conviction relief
No. 06-3235 23

and the appeal therefrom, Mr. Malone alerted the state

courts to the nature of his claim and provided the state

courts with the opportunity to address the underlying

issue. Consequently, he fairly presented his federal

claim to the state courts.

3.

Even if we were to conclude that Mr. Malone had not

fairly presented his claim of ineffective assistance of trial

counsel to the state appellate court, we nevertheless

would not be precluded from reviewing Mr. Malone’s

claim here.

Exhaustion, with its corollary requirement of fair presentment, “serves the interests of federal-state comity by

giving states the first opportunity to address and correct

alleged violations of a petitioner’s federal rights.”

Lieberman, 505 F.3d at 669. In determining whether the

fair presentment requirement has been met, “we assess

whether the petitioner alerted the state court to the

federal nature of his claim in a manner sufficient to allow

that court to address the issue on a federal basis.” Id. at

670. When there is a question as to whether a state has

been sufficiently “alerted,” we evaluate the petitioner’s

submissions to the state courts to determine if a petitioner

“has offered the operative facts and controlling legal

principles of his claim to the state courts.” Id. (citations

omitted). However, when it is clear from the state

court’s decision that it not only recognizes the petitioner’s

federal claim, but also resolves the claim on the merits,
24 No. 06-3235

engaging in our typical assessment is unnecessary. Regardless whether the petitioner has satisfied our constructs

for fair presentment, if the state resolves a claim on the

merits, the petitioner’s presentation must have been

sufficient to alert the state court to the nature of the claim.

Such is the case here. The state appellate court recognized that Mr. Malone was asserting a claim of ineffective

assistance of trial counsel: “Defendant first contends that

he was denied the effective assistance of counsel at trial

because this attorney failed to investigate the potential

testimony of, or call, Villanueva or Williams as witnesses.”

R.19, Ex. H at 6. It also recognized that Mr. Malone was

asserting his appellate counsel’s ineffectiveness as a

means to reach the errors of trial counsel. See id. at 6-7

(“Because [Villanueva’s and Williams’] testimony was

part of the record on appeal, defendant could have

raised this issue on direct appeal. Generally, [a] defendant’s failure to raise this issue on direct appeal would

result in waiver. However, the waiver rule is relaxed when

a defendant alleges that the failure to raise an issue on

appeal constituted the ineffective assistance of counsel.”

(internal citations omitted)). After reviewing the standard

for evaluating both ineffective assistance of trial and

appellate counsel, see id. at 7 (citing Strickland, 466 U.S. at

687, 694), the appellate court turned to the facts of the

ineffective assistance of trial counsel claim. The court

then stated:

We have carefully considered the testimony of Stewart

and Tate which identified defendant in light of the

testimony of Villanueva and Williams which
No. 06-3235 25

defendant claims was withheld from the jury as the

result of trial counsel’s ineffectiveness. We determine

that absent the alleged deficiencies the jury would

have heard testimony that tended to cast doubt on the

identification. However, we also determine that,

although this additional testimony would have affected the weight accorded the identification testimony of Stewart and Tate, the effect of the alleged

deficiencies was not so significant as to cast doubt on

the outcome of the trial. Therefore, we conclude

that defendant cannot establish that the outcome of

the trial would have been different absent the alleged

deficiencies of trial counsel. Accordingly, defendant

cannot establish that he was denied the effective

assistance of counsel either at trial or on direct appeal. Therefore, the trial court did not err when it

dismissed this allegation of defendant’s postconviction

petition.

Id. at 9. The opinion of the appellate court makes clear

that it understood that Mr. Malone was asserting ineffective assistance of trial counsel as a ground for relief, that

it recognized the claim as one grounded in federal constitutional law (and cited appropriate standards) and that

it resolved Mr. Malone’s claims on the merits. Because

the state appellate court took the opportunity to resolve

Mr. Malone’s federal claims on the merits, the interest

behind the exhaustion and fair presentment requirements—to provide the state with the first opportunity to

correct constitutional errors—has been served. Consequently, we may proceed to consider Mr. Malone’s
26 No. 06-3235

Before proceeding to the merits, we address one last issue 10

raised by the State in its brief. The State maintains that the

“Petitioner does not argue in his opening brief that his procedural default can be excused—notwithstanding respondent’s

assertion of procedural default in the district court—and he has

thus forfeited the point.” Respondent’s Br. at 27. In support of

this argument, the State cites Aliwoli v. Gilmore, 127 F.3d 632

(7th Cir. 1997). In Aliwoli, the district court had determined

that the petitioner had procedurally defaulted a claim; in his

opening brief on appeal, however, the petitioner did not argue

that his default should be excused. We, therefore, held: “As in

the district court, Aliwoli does not present any arguments in

his appellate brief relating to cause for his default in state court

or any prejudice resulting therefrom, and he has failed to

establish the necessary prerequisite to our reviewing the merits

of his claim.” Id. at 634-35. Aliwoli has no application to the

case before us. As noted above, the district court did not reach

the State’s exhaustion argument. Because the district court did

not reach the question of exhaustion, there was no reason for

Mr. Malone to argue in his brief on appeal that his alleged

failure to exhaust state remedies should be excused.

claim of ineffective assistance of trial counsel on the

merits.10

B. Ineffectiveness of Trial Counsel

Mr. Malone argues that the state appellate court erred

in determining that his trial counsel was not constitutionally ineffective. Section 2254 of Title 28 sets forth the

standards according to which we must evaluate Mr.

Malone’s claim. Specifically, we cannot grant the writ

to a petitioner in State custody
No. 06-3235 27

with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States . . . .

28 U.S.C. § 2254(d). Mr. Malone maintains that, in evaluating his ineffective assistance claim, the state appellate

court’s decision was contrary to clearly established federal law and also constituted an unreasonable application

of clearly established federal law.

1.

Mr. Malone first argues that the Illinois appellate court’s

adjudication of his ineffective assistance of trial counsel

claim was contrary to clearly established federal law

because the court applied a prejudice standard at odds

with the standard set forth in Strickland v. Washington, 466

U.S. 668 (1984). According to Mr. Malone, the Illinois

appellate court required him to prove that the outcome

of his trial would have been different if Villanueva had

testified, see R.19, Ex. H at 9; however, Strickland only

requires that the petitioner establish a reasonable probability that the outcome would have been different, see

Strickland, 466 U.S. at 694.

We believe that Mr. Malone’s argument rests on a

cramped reading of the Illinois appellate court’s decision.

The appellate court correctly recited Strickland as the
28 No. 06-3235

standard to be applied and also stated that “[t]o demonstrate prejudice a defendant must establish that there is a

reasonable probability, that, but for the alleged errors, the

outcome of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings.” R.19,

Ex. H at 7 (citations omitted). Because the defendant had

to establish both deficient performance and prejudice,

the appellate court proceeded directly to the prejudice

prong of the Strickland standard—an approach that we

often have followed in our own application of Strickland.

See, e.g., Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir.

2001) (“We need not determine the first, or ‘performance,’

prong of the Strickland test, if we find that counsel’s alleged

deficiency did not prejudice the defendant.” (citing Strickland, 466 U.S. at 697)). After evaluating the evidence, the

court determined that,

although this additional testimony would have affected the weight accorded the identification testimony

of Stewart and Tate, the effect of the alleged deficiencies was not so significant as to cast doubt on the

outcome of the trial. Therefore, we conclude that the

defendant cannot establish that the outcome of the

trial would have been different absent the alleged

deficiencies of trial counsel. . . .

R.19, Ex. H at 9.

The language of the state appellate court here mirrors

that employed by the state court in Stanley v. Bartley, 465

F.3d 810 (7th Cir. 2006). In that case, the state appellate

court had quoted correctly the standard from Strickland,
No. 06-3235 29

but in its conclusion had stated that “Stanley was not so

prejudiced by any of the alleged mistakes that the outcome of the trial would have been any different.” Id. at

813. We noted that this statement was an incorrect recitation of the standard. We held, however, that “[h]aving

expounded the well-known standard correctly on the

previous page of its opinion, it is more likely that the court

stated its conclusion imprecisely than that it applied a

different standard,” and the state court was “entitled to

the benefit of the doubt.” Id.

Here, given that the state appellate court correctly

referenced Strickland, recited the Strickland standard

correctly, and employed the methodology outlined in

Strickland, we believe, as we did in Stanley, that “it is

more likely that the court stated its conclusion imprecisely

than that it applied a different standard.” Id. at 813; cf.

Uttecht v. Brown, 127 S. Ct. 2218, 2228 (2007) (noting that a

state court does not have to recite repeatedly a standard

in order to establish that it applied the correct standard

to each alleged constitutional violation). We therefore

reject Mr. Malone’s argument that the state appellate

court’s decision was “contrary to” the ineffective assistance standard articulated in Strickland.

2.

If the state court has identified correctly the governing

law, the habeas petitioner must show that the state court

applied the governing law—in this case Strickland—in

an unreasonable manner. See Hough v. Anderson, 272 F.3d
30 No. 06-3235

878, 889-90 (7th Cir. 2001). To satisfy this statutory requirement, the petitioner must establish that “[t]he state

court’s application of Strickland [was] objectively unreasonable and not merely erroneous.” Julian v. Bartley, 495

F.3d 487, 494 (7th Cir. 2007) (citing Yarborough v. Gentry,

540 U.S. 1, 5 (2003)). Mr. Malone maintains that the

Illinois appellate court’s application of the Strickland test

to the facts of his case was, in fact, objectively unreasonable.

a.

We evaluate, therefore, whether the Illinois appellate

court’s conclusion that Mr. Malone was not prejudiced by

his counsel’s failure to call Villanueva is a reasonable

one. “In assessing whether [Mr. Malone] has demonstrated

prejudice, this court must consider the evidence in its

totality.” Wright v. Gramley, 125 F.3d 1038, 1042 (7th Cir.

1997). A verdict supported by weak evidence “is more

likely to have been affected by errors than one with

overwhelming record support.” Williams v. Washington, 59

F.3d 673, 684 (7th Cir. 1995) (internal quotation marks

and citations omitted).

Given the nature of the evidence against Mr. Malone, as

well as his counsel’s failures, we are persuaded not only

that there is a reasonable probability that the outcome

of the trial would have been different had Mr. Malone’s

counsel called Villanueva, but also that the state appellate

court’s decision to the contrary was an unreasonable one.

The state’s case against Mr. Malone was far from iron-clad.

His conviction was not supported by any physical evi-
No. 06-3235 31

dence; it rested wholly on the testimony of two eyewitnesses: Stewart and Tate. Of the two eyewitnesses,

Stewart, a member of a rival gang whose weaknesses as a

witness were noted by the trial court, was the only witness to identify Mr. Malone as the shooter. Although he

knew Mr. Malone at the time that the crime occurred, he

did not immediately identify Mr. Malone as the perpetrator, or even as being present at the scene; he first identified Mr. Malone in a photo array later that afternoon.

Tate, on the other hand, only placed Mr. Malone at the

scene; she did not witness the shooting, and, therefore, she

could not identify the shooter. Tate testified that, after the

shooting occurred, she heard Stewart shout “the bitch

popped ‘em,” she saw Davis running down the street with

a gun, and she saw two other men (one of whom she

later identified as Mr. Malone), running in the opposite

direction. Tate picked Mr. Malone out of a lineup at

approximately 10:15 on the evening of the shooting.

Although Tate recognized Mr. Malone as being from

the neighborhood, she did not know him personally.

Under circumstances similar to the present case, we

have held that a defendant was prejudiced by his attorney’s failure to investigate and call potentially exculpatory

witnesses. In Hampton v. Leibach, 347 F.3d 219 (7th Cir.

2003), the defendant was convicted in state court of sexual

assault, attempted rape, robbery and aggravated battery

based on the eyewitness testimony of the victims and of a

security guard. The assault had occurred in a dark,

crowded theater during a general melee. Furthermore,

none of the witnesses knew Hampton, had seen him

prior to the incident or had seen him for more than a
32 No. 06-3235

few minutes in the confused atmosphere of the theater.

Nevertheless, the state appellate court determined that

the defendant was not prejudiced by his counsel’s failure

to investigate and call other witnesses who would have

testified that Hampton was sitting with them during the

time of the events in question. In considering this determination upon habeas review, we stated:

Given the central role that eyewitness testimony

played in this case, the vulnerabilities in the testimony

of the State’s eyewitnesses, and the shortcomings in

human perception that so frequently render eyewitness

testimony less reliable than other types of evidence, we

are more than satisfied that the failure to investigate

exculpatory eyewitnesses likely affected the outcome

of Hampton’s trial. The eyewitnesses that Hampton

has identified, and whose testimony the district court

found credible, would have given the jury a powerful reason to doubt Hampton’s culpability.

Id. at 253 (internal quotation marks omitted). We noted

additionally that “[t]wo separate acquittals len[t] support

to this notion.” Id. First, the jury had acquitted Hampton

of the attempted rape of another woman who, “according

to a written report of a line-up[,] . . . had picked Ezra

Garner rather than Hampton as her assailant.” Id. We

noted that “[t]he jury’s decision to acquit Hampton on

that charge, but not others, suggests that the report gave

it reason to doubt the reliability of Martha N.’s identification in a way that it did not doubt the other witnesses

against Hampton.” Id. Second, Ronald Mallory, who had

been identified by one of the victims as an assailant,
No. 06-3235 33

11 Villanueva affirmatively testified that Taylor, a person whom

he knew, was not present at the scene. Villanueva, however, did

not know Mr. Malone and did not state affirmatively that Mr.

Malone had not been present at the scene. Instead, when asked

if any of the individuals present at the shooting were in the

courtroom, Villanueva did not identify Mr. Malone. See supra

at 5-6. 

“ultimately was acquitted of all charges. . . . In his defense,

Mallory had testified that he did not participate in the

attack, and he called three additional witnesses who said

the same thing (a fourth witness confirmed that he was

not a gang member).” Id. We concluded that “Mallory’s

acquittal demonstrate[d] the importance of exculpatory

eyewitness testimony and suggests that Hampton’s jury

might have been swayed by such testimony.” Id.

The present case bears important similarities to

Hampton. First, eyewitness testimony was the crux of the

prosecution’s case. Additionally, there were “vulnerabilities in the testimony of the State’s eyewitnesses,” id. at

253—at least with respect to identifying Mr. Malone’s role

in the events surrounding the shooting. Finally, as in

Hampton, the record strongly suggests that counsel’s

failure to call Villanueva influenced the jury’s verdict:

Villanueva testified on behalf of Taylor; Taylor was

acquitted. Although Villanueva’s testimony concerning

Mr. Malone was not as compelling as his testimony

concerning Taylor, we believe that there is a reasonable 11

probability that the missing testimony made a difference.

However, it is not sufficient that the Illinois appellate

court erred; in order to be entitled to habeas relief, the
34 No. 06-3235

Illinois appellate court’s determination also must be

unreasonable. As in Hampton, we believe that the appellate court here “turned a blind eye” both to the nature of

the State’s case and to the importance of Villanueva’s

testimony. 347 F.3d at 256. As noted above, the key

witness for the State was Stewart. However, the state

appellate court either failed to mention or glossed over

Stewart’s principal weaknesses as a witness, namely that

he knew Mr. Malone but failed to identify him at the

scene, and that his contemporaneous utterances (“the

bitch popped ‘em”) suggest that someone other than

Mr. Malone was the perpetrator. As well, although

Villanueva’s testimony in support of Mr. Malone was not

as strong as that for Taylor, Villanueva’s testimony still

would have provided the jury with further doubt as to

Mr. Malone’s involvement and may have provided “the

jury a reason to acquit.” Id. Consequently, we must conclude that the state appellate court’s determination that

Mr. Malone was not prejudiced by his counsel’s failure

to call Villanueva was not a reasonable one.

b.

Because we conclude that Mr. Malone was prejudiced by

his counsel’s failure to call Villanueva, we also must

address whether the performance prong of the Strickland

standard has been met, that is, whether counsel’s performance “fell below an objective standard of reasonableness.” 466 U.S. at 688. Because the Illinois appellate court

did not reach the question of counsel’s performance, “our

review is not circumscribed by a state court conclusion”
No. 06-3235 35

with respect to this issue, Wiggins v. Smith, 539 U.S. 510,

534 (2003), and we may consider the matter de novo.

We have discussed at length the importance of presenting eyewitness and alibi testimony to counter similar

evidence offered by the prosecution. See Hampton, 347

F.3d at 250 (collecting cases). Especially when there are

vulnerabilities in the prosecution’s identification testimony, “[o]pposing testimony from other eyewitnesses . . .

give[s] the jury a qualitatively different and more powerful reason to believe that the State’s witnesses [a]re mistaken in their identifications.” Id. Despite the importance

of the evidence, however, the record does not suggest a

concrete reason why Mr. Malone’s counsel chose not to

call Villanueva. Indeed, when the trial court questioned

Mr. Malone’s counsel during sentencing concerning his

failure to call Villanueva, Mr. Malone’s counsel merely

stated, without elaboration, that the decision was a

matter of trial strategy.

Villanueva did not appear to have any potential bias or

serious credibility issues that should have given counsel

pause. Additionally, Villanueva’s testimony would not

have opened the door to other potential lines of questioning that may have been damaging to Mr. Malone. Cf. Burger

v. Kemp, 483 U.S. 776, 791-92 (1987) (noting that “an

experienced trial lawyer could properly have decided not

to put either petitioner or the psychologist” on the stand

when cross-examination would have exposed damaging

evidence concerning the petitioner).

The State maintains that there are several reasons why

trial counsel, as a matter of sound strategy, could have
36 No. 06-3235

decided not to call Villanueva. The State argues that, if

counsel had called Villanueva, “counsel risked having

Villanueva testify in front of the jury that he was merely

unable to say whether petitioner was present,” and it was

legitimate for counsel not to “reopen the proofs” to

“introduce potentially unhelpful evidence.” Respondent’s

Br. at 33. We believe that the State significantly underestimates the “helpfulness” of Villanueva’s testimony.

Villanueva was a disinterested witness who observed the

events of the morning of July 22 at close distance. Even if

his testimony concerning Mr. Malone were somewhat

equivocal, it still would have been relevant and probative

evidence that tended to cast doubt on Mr. Malone’s

participation in the shooting. See Fed. R. Evid. 401 (“ ‘Relevant evidence’ means evidence having any tendency to

make the existence of any fact that is of consequence to

the determination of the action more probable or less

probable than it would be without the evidence.”).

The only other reason, suggested by the State, as to why

counsel may have decided not to call Villanueva is that

“the prosecution could have impeached Villanueva’s

account of the shooting with his prior statement, given

to the police shortly afterthe shooting, in which Villanueva

claimed to have been sleeping at the time of the shooting.”

Respondent’s Br. at 33. However, whether Villanueva

arrived at his window immediately before or immediately

after shots were fired does not affect his testimony concerning Mr. Malone—that he did not recognize Mr.

Malone as one of the individuals present at the scene.

As set forth above, in situations where the State’s case

rests on eyewitness testimony, eyewitness testimony on
No. 06-3235 37

behalf of the defendant effectively diffuses the State’s

case and provides the trier of fact with a reason to acquit. Neither Mr. Malone’s counsel nor the State has

offered a compelling reason why such testimony was not

offered in the present case. However, it does not appear

that, at this point in the litigation, there has been an opportunity for the parties to explore fully whether the first

prong of the Strickland analysis has been met. There is

some evidence of trial counsel’s ineffectiveness; Villanueva

testified that he could identify only one person in the

courtroom as a perpetrator, Michelle Davis, even though

Mr. Malone was sitting there. Faced with this record and

the reality that even wavering testimony by Villanueva

would be helpful to Mr. Malone, the State is left with

conjectural possibilities as to the reasons for counsel’s

failure to call Villanueva. The petitioner, Mr. Malone, has

the ultimate burden of establishing trial counsel’s ineffectiveness, and the record already contains some evidence

of that ineffectiveness. Whether Mr. Malone ultimately

can meet his burden is an issue that should be addressed

in the first instance by the district court after it has ensured that both sides have had a full and fair opportunity

to develop the record.

Mr. Malone also faults his counsel for failing to use

Officer Williams’ report to impeach Stewart and for

failing to call Officer Williams to point out the inconsistencies in Stewart’s statements. The key discrepancy

that Mr. Malone seeks to expose is that Stewart described

the shooter as having a light complexion; however, Stewart

later identified Mr. Malone as the shooter, and Mr. Malone

has a dark complexion. The remaining description given
38 No. 06-3235

by Stewart to Officer Williams—that the shooter wore a

Cubs hat, a t-shirt and jeans—is consistent with that

given by Tate.

Counsel’s failure to impeach Stewart on this one variation, standing alone, does not rise to the level of ineffective

assistance, nor is there a reasonable probability that it

affected the outcome of the trial. However, “[w]e previously have pointed out that prejudice may be based on

the cumulative effect of multiple errors. Although a

specific error, standing alone, may be insufficient to

undermine the court’s confidence in the outcome,

multiple errors together may be sufficient.” Hough, 272

F.3d at 891 n.3 (internal citations omitted). On remand,

the district court certainly should consider whether counsel’s cumulative errors rise to the level of ineffective

assistance of counsel and whether, as a result of those

errors, there is a reasonable probability that the outcome

of the trial would have been different.

Conclusion

For the reasons set forth above, the judgment of the

district court is reversed, and the case is remanded for

further proceedings consistent with this opinion.

REVERSED and REMANDED

8-18-08