In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3316

STEPHEN TOLIVER,

Petitioner-Appellant,

v.

GARY R. MCCAUGHTRY, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 C 1123—Patricia J. Gorence, Magistrate Judge.

____________

ARGUED SEPTEMBER 5, 2007—DECIDED AUGUST 27, 2008

____________

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Stephen Toliver was convicted by

a jury of first-degree intentional homicide (as a party to a

crime), in violation of sections 940.01 and 939.05 of the

Wisconsin Statutes. Mr. Toliver was sentenced to life in

prison. After exhausting his state remedies, he filed in the

district court a petition for a writ of habeas corpus. See

28 U.S.C. § 2254. The district court denied relief, and

Mr. Toliver timely appealed to this court.
2 No. 06-3316

For the reasons set forth in this opinion, the judgment of

the district court is reversed, and the case is remanded for

proceedings consistent with this opinion.

I

BACKGROUND

A. The Facts and Mr. Toliver’s Criminal Trial

Mr. Toliver’s state conviction arose out of the murder of

Tina Rogers. In 1991, Mr. Toliver and his brother, Oliver

Toliver, were living with Commosie Thompson, Jo-Etta

Foster and Tina Rogers. Thompson was selling drugs out

of the residence and discovered that $1,800 in drug proceeds was missing. Thompson told Mr. Toliver, who had

been serving as Thompson’s drug courier, about the

missing money. Mr. Toliver informed Thompson that

Rogers had taken it.

Mr. Toliver then told his brother Oliver to “strap up”;

both men grabbed firearms and went looking for Rogers.

R.30, Ex. 2 at 3. Both Foster and Thompson testified that,

from their observations that evening, they did not believe

that Mr. Toliver or Oliver intended to harm Rogers

upon finding her. Mr. Toliver testified that he had told

Oliver to “strap up” because their house had been “shot

up” several weeks after Rogers had moved into the house

and they suspected that Rogers’ boyfriend, whom Mr.

Toliver believed to be violent, had been involved in the

shooting. Id., Ex. 8 at 30.

Upon finding Rogers, Mr. Toliver and Oliver brought

her back to the residence; upon their arrival, Thompson,
No. 06-3316 3

At this point, Foster testified that she, thinking that this 1

would be a long argument, left the room to cancel a reservation

that she just had made. Foster further testified that she did not

reenter the room until after she heard the first gunshot.

Corey Henry, Darian Robinson and Foster were present.

Once inside, Mr. Toliver began questioning and arguing

with Rogers about the missing money; Rogers denied

taking it. Foster testified that Oliver, who had a TEC-9

handgun in his hand, went over to Mr. Toliver, who also

was holding a firearm, and whispered something. Mr.

Toliver then began yelling at Rogers. Mr. Toliver then 1

tossed his sawed-off shotgun next to Thompson and told

him to shoot whomever he thought had stolen the money

(including Mr. Toliver himself); Thompson did not respond, and Mr. Toliver picked up the shotgun.

At this point, Oliver moved aggressively toward Rogers,

but Mr. Toliver pushed him away. Henry testified that

Mr. Toliver had told Oliver to “chill out and sit down.” Id.,

Ex. 5 at 17. Mr. Toliver then asked Thompson what he

intended to do. Thompson responded, “Whatever is

clever.” Id., Ex. 8 at 42. Robinson testified that Mr. Toliver

had asked Thompson whether he was sure. Thompson

testified that Mr. Toliver then had stepped back. Oliver

then got up and shot Rogers once in the forehead at pointblank range.

What Mr. Toliver said next remained in dispute at trial.

Thompson and Robinson each testified that they heard

Mr. Toliver say some variation of “[k]ill that bitch, kill

her.” Id., Ex. 4 at 36; id., Ex. 6 at 56. Foster testified that,
4 No. 06-3316

Section 940.01 states: “[W]hoever causes the death of another 2

human being with intent to kill that person or another is guilty

of a Class A felony.”

Section 939.05, in relevant part, reads: 3

(1) Whoever is concerned in the commission of a crime is a

principal and may be charged with and convicted of the

commission of the crime although the person did not

directly commit it and although the person who directly

committed it has not been convicted . . . .

(2) A person is concerned in the commission of the crime

if the person:

. . . . 

(b) Intentionally aids and abets the commission of it. . . .

after hearing the first gunshot, she reentered the room and

saw both Mr. Toliver and Oliver standing by Rogers, who

was slumped on the floor bleeding profusely; Oliver had

his gun pointed at Rogers’ head. Foster testified that she

then heard Mr. Toliver say, “shoot the bitch.” Id., Ex. 7

at 80. Mr. Toliver, however, testified at trial that he had

said, “you done killed the bitch.” Id., Ex. 8 at 44. After

Mr. Toliver’s comment, Oliver again shot Rogers in the

head.

B. Wisconsin State Court and District Court Proceedings

On January 30, 1992, Stephen Toliver was convicted by

a jury in the Milwaukee County Circuit Court of firstdegree intentional homicide (as a party to a crime), in

violation of sections 940.01 and 939.05 of the Wisconsin 2 3

Statutes. The court sentenced him to life imprisonment.

After sentencing, Mr. Toliver filed a pro se appeal.
No. 06-3316 5

On direct appeal to the Court of Appeals of Wisconsin,

Mr. Toliver brought, inter alia, a sufficiency of the evidence claim. Mr. Toliver argued that the evidence

against him was circumstantial and insufficient. The

Wisconsin appellate court rejected this characterization

of the evidence, explaining that

[w]e need not belabor the facts further to determine

that they overwhelmingly establish that Stephen

instigated the homicide, enlisted his brother Oliver’s

assistance, and intended to cause Rogers’ death.

Although Oliver immediately caused Rogers’ death,

it was Stephen who intentionally directed it and

assisted in it.

Stephen argues that the evidence was circumstantial. It was not. Four eyewitnesses testified to Rogers’

bloody and merciless execution-style murder at the

hands of the Tolivers.

State v. Toliver, No. 93-0510, at 5 (Wis. Ct. App. May 10,

1994) (R.19, Ex. C). The Wisconsin appellate court also

stated: “The facts . . . overwhelmingly establish Toliver’s

culpability, indeed his leadership, for this savage murder.

Four eyewitnesses’ evidence, the murder weapon and

Toliver’s shotgun, the wrappings for Rogers’ body and a

plethora of other evidence were presented or described to

the jury.” Id. at 14. The court affirmed Mr. Toliver’s

conviction.

One judge concurred in the court’s judgment but did

“not join in the reasoning of the majority in all respects.”

Id. at 17. Although he did not state whether he agreed with

the majority’s characterization of the evidence against
6 No. 06-3316

Wisconsin law allows a convicted defendant to file a post- 4

conviction motion in the trial court as part of his or her

direct appeal. See Wis. Stat. § 974.02.

Mr. Toliver, the concurring judge noted, “On several

issues, I am troubled by the way in which the majority

seems to ignore or inadequately address Toliver’s arguments.” Id.

After the Supreme Court of Wisconsin denied Mr.

Toliver’s petition for review, he proceeded under, and

exhausted, his Wisconsin state habeas remedies.

Mr. Toliver then filed a habeas petition under 28 U.S.C.

§ 2254 in the United States District Court for the Eastern

District of Wisconsin. On November 9, 1999, the district

court granted conditionally Mr. Toliver’s petition on the

ground that he had been deprived of his right to

counsel during his pro se direct criminal appeal in Wisconsin state court. Wisconsin ex rel. Toliver v. McCaughtry,

72 F. Supp. 2d 960, 979 (E.D. Wis. 1999). The district court

ordered that Mr. Toliver be released or that the state

court permit him to refile his direct appeal with the

assistance of counsel.

The state chose the latter course, and Mr. Toliver,

represented by counsel, consequently returned to the

state trial court as part of his reinstated direct appeal. Mr. 4

Toliver contended, inter alia, that his trial counsel had

provided ineffective assistance of counsel and that the

prosecution had failed to disclose exculpatory evidence.

With respect to the ineffective assistance of counsel

claim, Mr. Toliver submitted affidavits from Angeal
No. 06-3316 7

Toliver and Harvey Toliver. The affidavits, which we

describe in more detail below, disclosed that these two

individuals had offered to testify on Mr. Toliver’s behalf.

According to Mr. Toliver, the testimony offered in the

affidavits tended to show that Oliver had acted alone

when he shot Rogers and that Mr. Toliver did not otherwise intentionally aid and abet Oliver’s murder of Rogers. Mr. Toliver argued that his trial counsel was ineffective

for failing to call Angeal Toliver to testify during his

criminal trial and, in the case of Harvey Toliver, for failing

to interview him.

With respect to the exculpatory evidence claim, Mr.

Toliver submitted an affidavit from Cornell Smith. The

affidavit, which we also discuss in more detail below,

disclosed the existence of a letter that Smith claims to

have sent to Mr. Toliver’s prosecutor prior to the criminal trial. According to the affidavit, the letter that Smith

allegedly had sent to the prosecutor disclosed statements

that also tended to show that Oliver had acted alone

when he shot Rogers and that Mr. Toliver had attempted

to dissuade Oliver from killing Rogers. Mr. Toliver argued

that Smith’s letter constituted exculpatory evidence

that was not, but should have been, disclosed to him prior

to trial.

The state trial court denied Mr. Toliver’s post-conviction

motion, and he appealed these two issues, among others,

to the Court of Appeals of Wisconsin. The Court of Appeals of Wisconsin, as discussed in more detail below,

affirmed Mr. Toliver’s conviction as well as the trial

court’s denial of post-conviction relief. State v. Toliver, No.
8 No. 06-3316

00-2460, 2001 WL 1084999 (Wis. Ct. App. Sept. 18, 2001)

[hereinafter Toliver II]. The court held that the evidence

against Mr. Toliver was overwhelming and that, therefore,

there was no reasonable probability of a different result

had Mr. Toliver’s counsel called Angeal Toliver and

Harvey Toliver to testify or had the contents of Smith’s

letter been disclosed to Mr. Toliver’s defense counsel.

Mr. Toliver then filed another habeas petition under 28

U.S.C. § 2254 in the Eastern District of Wisconsin. The

district court denied that petition on January 31, 2006. Mr.

Toliver timely filed a notice of appeal and requested

from the district court a certificate of appealability. On

April 24, 2006, the district court granted Mr. Toliver’s

request for a certificate of appealability (“COA”) on four

of the six issues that he raised before that court. After

studying the briefs and the record and after oral argument,

we granted a COA on the remaining two issues. See 28

U.S.C. § 2253(c)(2). Both the State and Mr. Toliver subsequently submitted supplemental briefs.

II

DISCUSSION

A. Habeas Corpus Standards of Review

We review de novo the district court’s denial of a habeas

petition. Daniels v. Knight, 476 F.3d 426, 433 (7th Cir. 2007).

Under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), we may grant habeas relief only if the state

court’s “decision was contrary to, or involved an unreasonable application of, Supreme Court precedent,” id., or
No. 06-3316 9

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C.

§ 2254(d)(2).

To grant habeas relief under the “contrary to” clause, we

must find that the state court reached a result opposite to

that reached by the Supreme Court on materially indistinguishable facts. See Terry Williams v. Taylor, 529 U.S. 362,

405 (2000); Jackson v. Miller, 260 F.3d 769, 774 (7th Cir.

2001). To warrant relief under the “unreasonable application” clause, a habeas petitioner must show that the state

court’s decision unreasonably extended a clearly established Supreme Court precedent to a context where it

should not have applied or unreasonably refused to

extend such a precedent to a context where it should

have applied. Jackson, 260 F.3d at 774. Furthermore, the

state court decision must be “both incorrect and unreasonable.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir.

2000); see also Terry Williams, 529 U.S. at 407-08. The state

court’s factual findings are presumed correct; this presumption can be rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537

U.S. 322, 348 (2003); see also Barrow v. Uchtman, 398 F.3d

597, 603 (7th Cir. 2005).

B. Ineffective Assistance of Counsel Claim

Mr. Toliver submits that he was deprived of his right to

effective assistance of counsel and that, in holding otherwise, the Court of Appeals of Wisconsin unreasonably
10 No. 06-3316

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

connection with his post-conviction motion, Mr. Toliver

submitted two affidavits—one from Angeal Toliver

and another from Harvey Toliver—indicating that each

affiant would have testified on Mr. Toliver’s behalf.

We turn to the substance of those affidavits.

1.

Angeal Toliver’s affidavit recounts a conversation that

she had with Mr. Toliver’s mother and Jo-Etta Foster,

who had been present in the house during Rogers’ murder

and testified against Mr. Toliver. Mr. Toliver’s mother

and Angeal asked Foster what had happened on the

evening of the Rogers murder. Foster told them that

Mr. Toliver had nothing to do with Rogers’ murder. That

evening, Foster explained that she was in her bedroom

when she heard a gunshot; she then yelled Mr. Toliver’s

name and looked out her bedroom door. At that point,

Foster saw Mr. Toliver trying to wrestle a gun away from

Oliver and heard Mr. Toliver exclaim, “[Y]ou shot the

bitch, or something like that.” R.30, Ex. 11 at 1-2. Oliver

then shot Rogers again, after which Mr. Toliver

succeeded in wrestling the gun away from Oliver. Foster

explained that the reason that she had not told the police

this was because the police had threatened to charge her.

Angeal’s affidavit concludes by stating that she had

explained all of this to Mr. Toliver’s trial counsel and that

he had told her that he was placing her on Mr. Toliver’s

witness list. Angeal, however, was never called to testify.
No. 06-3316 11

Harvey Toliver’s affidavit relates a conversation that he

had with the Toliver brothers after the Rogers murder.

While the Toliver brothers were driving Harvey home,

Harvey asked them why the police were questioning them

about the Rogers murder. Mr. Toliver immediately said,

“[B]ecause this crazy nigger, meaning [Oliver], killed her.”

Id., Ex. 9 at 1. Harvey inquired as to Oliver’s motive in

killing Rogers. According to Harvey, Oliver said,

“[B]ecause she was a dope feined [sic] bitch and deserved

to die.” Id. Mr. Toliver then became upset and responded

by telling Oliver, “[Y]ou shouldn’t have killed her because

it wasn’t any of our business if this woman . . . did or

didn’t steal Commosie’s dope and money, it wasn’t [your]

business.” Id. Oliver stated that Rogers had made him

angry when she laughed after Commosie asked her if she

stole his money, “so he shot the bitch and he said he

didn’t like her anyway.” Id. Harvey’s affidavit continues

to explain that Mr. Toliver told Oliver that he was not

going to take the blame for him and that “if they got

arrested that [Oliver] would have to take his own weight

because he, [Mr. Toliver], will tell the police the truth

about what happened.” Id. Oliver stated that “he would

accept that if it came to that and he would confess to what

he did because he wouldn’t let his brother, [Mr. Toliver,]

take the blame for what he had done.” Id. Mr. Toliver then

expressed regret at having helped Oliver move Rogers’

body and said it was “stupid” on his part. Id.

Harvey’s affidavit then recounts how Mr. Toliver had

called Harvey from a county jail and had explained that

Oliver had confessed to the murder but then had claimed

that the confession had been coerced. Mr. Toliver asked
12 No. 06-3316

Harvey if he would be willing to speak with Mr. Toliver’s

counsel and relate the conversation that he had had with

the Toliver brothers. Harvey’s affidavit states that he

expressed some reluctance about taking sides between

the two brothers, but he ultimately told Mr. Toliver that he

would speak to Mr. Toliver’s counsel if it became necessary. Mr. Toliver told Harvey that he should expect to

hear from his counsel soon. The affidavit explains that

Mr. Toliver’s counsel never contacted Harvey.

2.

On direct review, the Court of Appeals of Wisconsin

rejected on the merits Mr. Toliver’s ineffective assistance

of counsel claim. The appellate court correctly identified

the Supreme Court’s decision in Strickland as governing

a claim of ineffective assistance of counsel. Under Strickland, a defendant must prove that his lawyer “fell below

an objective standard of reasonableness” and that there

is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 687-88, 694. In this

case, the appellate court dismissed Mr. Toliver’s Strickland

claim on the prejudice prong, without addressing the

deficient performance prong.

As for Angeal’s statement, the court noted that Mr.

Toliver argued that the statement would have impeached

Foster’s testimony that Mr. Toliver said “shoot the bitch.”

Toliver II, 2001 WL 1084999, at *11 ¶ 47. The court, however, concluded that no prejudice could have resulted

from trial counsel’s failure to call her because the state-
No. 06-3316 13

ment’s qualifier, “or something like that,” would not have

resolved the conflict between the two versions of Mr.

Toliver’s statement. Id. The court did not discuss the

remainder of the statements contained in the affidavit.

As to Harvey’s statement, the court similarly found

that no prejudice resulted from the failure to interview

or to call him. Despite noting that “Harvey Toliver’s

testimony could have established that Oliver had his

own reasons for shooting Rogers,” the court held that “it

would not have reduced Stephen’s participation in the

homicide.” Id. at *12 ¶ 48. The court concluded: “For the

abundant reasons we have recited, Stephen took several

direct and powerful actions that were substantial factors

in causing Rogers’ death, regardless of the personal

animus Oliver may have felt that led him to pull the

trigger. Thus, any failure to call Harvey Toliver to testify

was not prejudicial.” Id.

The district court concluded that the Wisconsin

appellate court’s application of Strickland had not been

unreasonable. The district court stated: “As the court of

appeals previously explained, [Mr. Toliver] did, in fact,

take ‘several direct and powerful actions that were substantial factors in causing Rogers’ death’ . . . . Based on the

foregoing, this court cannot conclude that the state

court’s determination that [Mr. Toliver] was not prejudiced by his trial counsel’s failure to call Angeal Toliver

and Harvey Toliver is contrary to, or an unreasonable

application of, clearly established Supreme Court precedent.” R.41 at 27 (quoting Toliver II, 2001 WL 1084999,

at *12 ¶ 48).
14 No. 06-3316

3.

Mr. Toliver contends that the Court of Appeals of

Wisconsin unreasonably applied the Strickland standard

in rejecting his claim of ineffective assistance of counsel.

Mr. Toliver argues that his trial counsel provided ineffective assistance because counsel failed to call Angeal to

testify and also failed to interview or call Harvey. Mr.

Toliver contends that the testimony of these two witnesses would have aided significantly his defense.

Angeal’s testimony would have contradicted Foster’s trial

testimony that Mr. Toliver directed Oliver to shoot Rogers,

and Harvey’s testimony would have established that

Oliver had his own reasons for killing Rogers. Mr. Toliver

contends that the Wisconsin court’s application of the

Strickland test was objectively unreasonable.

The State contends that the Wisconsin appellate court

reasonably concluded that “Angeal Toliver’s testimony

would have been inconsequential to Stephen Toliver’s

trial and that Harvey Toliver’s testimony would not

have reduced or lessened Stephen’s participation in Tina

Rogers’ killing.” Appellee’s Br. at 38. It contends that the

state court’s Strickland analysis was “within the range

of defensible positions.” Id. (citing Mendiola v. Schomig, 224

F.3d 589, 591 (7th Cir. 2000)).

A state habeas petitioner seeking relief based on a claim

of ineffective assistance of counsel faces a substantial

burden. Under Strickland, a defendant must prove that

his lawyer “fell below an objective standard of reasonableness” and that there is a “reasonable probability that,

but for counsel’s unprofessional errors, the result of the
No. 06-3316 15

proceeding would have been different.” Strickland, 466

U.S. at 688, 694. A reasonable probability is defined as “a

probability sufficient to undermine confidence in the

outcome.” Id. “Strickland builds in an element of deference

to counsel’s choices in conducting the litigation,” we have

explained, and section 2254(d)(1) “adds a layer of respect

for a state court’s application of the legal standard.”

Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir. 1997). Thus,

under AEDPA, a habeas petitioner must show that the

state court’s application of Strickland was both incorrect

and unreasonable—that is, “lying well outside the boundaries of permissible differences of opinion.” Raygoza v.

Hulick, 474 F.3d 958, 963 (7th Cir. 2007) (quoting Hardaway

v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).

We turn to Mr. Toliver’s argument that his trial

counsel fell below an objective standard of reasonableness—the first prong of the Strickland test.

a.

The Court of Appeals of Wisconsin did not engage in

an analysis of the first prong of Strickland, which asks

whether counsel fell below an objective standard of

reasonableness. As a result, federal review of this issue “is

not circumscribed by a state court conclusion,” and our

review is de novo. Wiggins v. Smith, 539 U.S. 510, 534

(2003).

It is well established that trial counsel has a duty “to

make reasonable investigations or to make a reasonable

decision that makes particular investigation unnecessary.”
16 No. 06-3316

Strickland, 466 U.S. at 691; Stanley v. Bartley, 465 F.3d 810,

813 (7th Cir. 2006). After conducting an investigation

(or making a reasonable decision that investigation is

unnecessary), counsel may make a legitimate strategic

decision not to call a witness if he makes a determination “that the testimony the witness[] would give might

on balance harm rather than help the defendant.” Foster v.

Schomig, 223 F.3d 626, 631 (7th Cir. 2000) (quoting Hall

v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)).

At this point in the litigation, the State’s position is that

the state courts were correct in determining that the

second prong of the Strickland test had not been met

because the requisite degree of prejudice had not been

shown. Therefore, it does not address whether the performance of Mr. Toliver’s counsel was constitutionally

adequate.

Nothing in the record before us suggests how Angeal

Toliver’s and Harvey Toliver’s testimony could have

harmed Mr. Toliver’s defense. On this record, the only

reason that we can discern for not calling Angeal and

Harvey was their relationship with Mr. Toliver and the

resulting possibility of bias. Harvey is Mr. Toliver’s cousin

and Angeal is his wife and the mother of his children.

Consequently, the jury might have dismissed their testimony. Nevertheless, given the nature of Mr. Toliver’s

defense, which we discuss in more detail below, and the

probative and corroborative testimony that Angeal and

Harvey would have provided, these witnesses’ possible

bias does not provide a basis for counsel’s failure to

call them. See, e.g., United States ex rel. Hampton v. Leibach,
No. 06-3316 17

347 F.3d 219, 249-50 (7th Cir. 2003) (noting, in a case in

which eyewitness testimony was critical, that bias “certainly is a circumstance that a factfinder would consider

in weighing [the witness’] credibility, but it is not so

impeaching that one can wholly discount the import of

their testimony and the effect that it might have had on [a]

jury”). Even more fundamentally, counsel could not

have made a reasonable strategic decision not to call

Harvey without interviewing him in order to evaluate

his proposed testimony, his credibility or his demeanor.

See Davis v. Lambert, 388 F.3d 1052, 1063-64 (7th Cir. 2004);

Washington v. Smith, 219 F.3d 620, 629-30 (7th Cir. 2000);

see also Strickland, 466 U.S. at 691. Angeal’s and Harvey’s

testimony provided unique information, available from

no other witnesses, that was corroborative of Mr. Toliver’s

claim that he had not urged Oliver to kill Rogers but

actually had attempted to dissuade him from doing so.

Consequently, on the record as presently constituted, it

appears that the performance of Mr. Toliver’s trial counsel

fell below an objective standard of reasonableness. As we

discuss later, this first prong of the Strickland test must be

addressed more extensively by the district court on

remand.

b.

In this case, the Wisconsin appellate court correctly

identified Strickland as governing the determination of

whether Mr. Toliver had received ineffective assistance of

counsel. Its analysis of Strickland’s prejudice prong, however, fell outside the bounds of objective reasonableness.
18 No. 06-3316

In regard to the prejudice that resulted from counsel’s

failure to call Angeal and to interview and call Harvey, the

Court of Appeals of Wisconsin failed to apprehend the

nature of Mr. Toliver’s defense. It therefore failed to

assess how their testimony might have enhanced the

possibility of that defense succeeding.

Mr. Toliver does not dispute that he and Oliver armed

themselves prior to going out to search for Rogers, that

he and Oliver brought her back to the house at

Thompson’s request or that he was present when Oliver

shot Rogers. He does maintain, however, that his role

in the events that led to Rogers’ murder ought to be

characterized differently. More specifically, Mr. Toliver

submits that there is limited evidence supporting the

conclusion that he directed or encouraged Oliver to

shoot Rogers or otherwise intentionally aided and

abetted in Oliver’s murder of Rogers. He points out that

he was the one who pushed away Oliver, his brother and

the shooter, when Oliver moved aggressively toward

Rogers and that he told Oliver to calm down. Mr. Toliver

also attempted, as he portrays the facts, to diffuse the

situation by tossing his weapon to Thompson and inviting

him to shoot anyone, even Mr. Toliver, who Thompson

believed had taken from the stash (“shoot me or whoever

you think stole the money,” R.30, Ex. 8 at 66). He also

claims to have pointed out to Thompson that Rogers’ status

as a cocaine user did not necessarily make her the thief.

Finally, he contends that his exclamation after Oliver

shot Rogers was not one of encouragement but of anger

or surprise.
No. 06-3316 19

The combination of Angeal’s and Harvey’s testimony

no doubt would have enhanced significantly the chances

of the jury’s accepting Mr. Toliver’s characterization of

the facts, thereby affording Mr. Toliver a reasonable

probability of a different result at trial. See Stanley, 465

F.3d at 814; Goodman v. Bertrad, 467 F.3d 1022, 1029-30

(7th Cir. 2006) (noting the importance of analyzing the

synergistic prejudicial effect of counsel’s multiple failings). Had Harvey testified to Oliver’s statements that he

(Oliver) had shot Rogers because he disliked her and

because she had made him angry when she laughed

after Commosie had asked her if she had stolen from

the stash, the jury would have been able to evaluate more

accurately the dynamics of the very fluid and volatile

situation in that house, as well as the motivations of the

dramatis personae. Although the Wisconsin appellate

court conceded that “Harvey Toliver’s testimony could

have established that Oliver had his own reasons for

shooting Rogers,” it nevertheless concluded that this

testimony would have made no difference because Mr.

Toliver “took several direct and powerful actions that

were substantial factors in causing Rogers’ death, regardless of the personal animus that Oliver may have felt that

led him to pull the trigger.” Toliver II, 2001 WL 1084999,

at *12 ¶ 48. This brief conclusion significantly understates

the importance, for purposes of Mr. Toliver’s defense, of

establishing that Oliver had an intense dislike for Rogers

and therefore his own reasons for shooting her contrary

to the wishes of Mr. Toliver. Cf. Lesko v. Owens, 881 F.2d 44,

53 (3d Cir. 1989) (“It is generally recognized that evidence

of motive may be probative of specific intent.”). Indeed, the
20 No. 06-3316

Angeal’s affidavit states that Foster told her that Mr. Toliver 5

“yelled at Oliver you shot the bitch, or something like that.”

R.30, Ex. 11 at 1-2. The Wisconsin appellate court interpreted

the affidavit to mean that Angeal, rather than Foster, added the

qualification “or something like that.” Whether Angeal correctly

remembered what Foster conveyed to her is a matter that the

trier of fact nevertheless could have resolved in Mr. Toliver’s

favor. Moreover, Foster’s statement that Mr. Toliver was

attempting to take the gun away from Oliver would bolster

the argument that Oliver, in fact, did exclaim “you shot the

bitch,” in surprise or anger.

Wisconsin appellate court’s conclusion wholly ignores

Mr. Toliver’s defense and the weakness of the State’s

evidence with respect to whether Mr. Toliver intentionally

aided and abetted in Rogers’ murder.

The Court of Appeals of Wisconsin summarily dismissed

Angeal’s affidavit because Foster’s statement that Mr.

Toliver exclaimed “you shot the bitch” was qualified by

“or something like that.” Toliver II, 2001 WL 1084999, at *11

¶ 47. Angeal’s testimony, however, would have served to

impeach Foster’s trial testimony, which was that Mr.

Toliver had said “shoot the bitch.” R.30, Ex. 7 at 80. It

would have indicated that Foster herself was uncertain

about exactly what Mr. Toliver had exclaimed after Oliver

shot Rogers. Exactly what Mr. Toliver exclaimed after 5

Oliver fired the first shot is a critical point bearing on his

intent, especially given that numerous witnesses, including

the State’s witnesses, testified that, moments earlier, Mr.

Toliver had pushed Oliver away and told him to calm

down when Oliver moved aggressively toward Rogers.
No. 06-3316 21

Two of the State’s witnesses, moreover, testified that,

from their observations inside the house, they did not

believe that either Mr. Toliver or Oliver intended to harm

Rogers upon bringing her back to the house. R.30, Ex. 4

at 46-47 (testimony of Thompson) (stating that he

thought that Mr. Toliver and Oliver simply were going to

scare Rogers for purposes of getting her to tell the truth

about who had stolen from the stash); id., Ex. 7 at 102, 107-

08 (testimony of Foster) (testifying that she expected that

the men were going to have an argument with Rogers

about whether she had stolen the money but that she

did not expect Rogers to be harmed). This testimony,

combined with Angeal’s testimony impeaching Foster’s

testimony incriminating Mr. Toliver, suggests that Mr.

Toliver had no intention of aiding and abetting in Rogers’ murder and might even suggest that Mr. Toliver was

attempting to protect Rogers from Oliver.

Furthermore, the Wisconsin appellate court ignored

another extremely probative portion of Angeal’s affidavit:

that Foster had seen Mr. Toliver attempting to wrestle

the gun away from Oliver immediately after Oliver first

shot Rogers but before Oliver shot Rogers the second

time. This testimony is inconsistent with Foster’s testimony at trial in which she indicated that Mr. Toliver

simply was standing near Rogers after the first shot. Had

the jury heard that Mr. Toliver had attempted to take the

gun away from Oliver, it might well have believed Mr.

Toliver’s testimony that he had exclaimed “you shot the

bitch” in surprise or anger. Indeed, the jury also might

well have concluded that, when Oliver shot Rogers, he

acted not only alone but against the wishes of Mr. Toliver.
22 No. 06-3316

Accordingly, we believe that the combination of Angeal’s

and Harvey’s testimony could have created a significant

doubt as to whether Mr. Toliver, despite his prominence

that night, intentionally aided and abetted in the murder

of Rogers.

The Wisconsin courts, on direct appeal and on the reinstated direct appeal, consistently have characterized

the evidence against Mr. Toliver as overwhelming. The

evidence undoubtedly establishes that Mr. Toliver played

some role in the events that led to Rogers’ murder. To

convict him for first-degree intentional homicide, however,

the state had the burden of proving that Mr. Toliver

intentionally aided and abetted in Rogers’ murder. On

this element, it would be difficult to characterize the

State’s evidence as anything near “overwhelming.” Viewed

in this light, counsel’s double failure to call Angeal to

testify and to interview or call Harvey was prejudicial.

Given the weakness of the State’s evidence on intent, there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of Mr. Toliver’s trial would have

been different. See Strickland, 466 U.S. at 694.

We also believe that the Wisconsin appellate court’s brief

and cursory analysis of Strickland’s prejudice prong was

not only incorrect, but unreasonable. As we have discussed, the Wisconsin appellate court considered Angeal’s

and Harvey’s testimony in isolation, and it failed to

evaluate Angeal’s and Harvey’s testimony in light of Mr.

Toliver’s defense and the nature of the State’s case against

him. See Hampton, 347 F.3d at 256-57 (concluding that a

state court’s application of Strickland’s prejudice prong
No. 06-3316 23

was unreasonable because the State court had “turned a

blind eye . . . to the nature of the State’s case”). Although

the appellate court recognized that Harvey’s testimony

would have affected the jury’s evaluation of Oliver’s

motivation in shooting Rogers, the court failed to consider

the implications of this observation within the context

of Mr. Toliver’s defense as well as the weakness of the

State’s evidence with respect to whether Mr. Toliver

intentionally aided and abetted in Rogers’ murder.

C. Brady Claim

Mr. Toliver submits that he was deprived of his right to

due process of law when the Wisconsin court failed to

grant him a new trial in light of the prosecutor’s failure

to disclose to him the Cornell Smith letter that the prosecutor allegedly had received prior to Mr. Toliver’s trial.

In the affidavit submitted with Mr. Toliver’s post-conviction motion, Smith alleged that he had written a letter to

Mr. Toliver’s prosecutor dated June 10, 1991. In this letter,

Smith had asked the prosecutor to speak with another

prosecutor in another county in support of Smith’s attempt

to obtain favorable treatment with respect to charges then

pending against him in that county. In return, Smith

offered to testify in the pending proceedings against

Mr. Toliver and to relate the substance of a telephone

conversation in which Thompson and Henry had related

their versions of the events that ended with the death of

Tina Rogers.

After summarizing the substance of Smith’s affidavit

and the decisions of the Wisconsin appellate court and the

district court, we shall turn to Mr. Toliver’s arguments.
24 No. 06-3316

1.

According to Smith’s affidavit, during that telephone

conversation, Thompson related that he had thought that

Rogers had stolen some of his money and cocaine. Because

of this suspicion, the affidavit continued, Mr. Toliver and

others had tracked down Rogers and brought her back to

the house. Once back at the house, Thompson asked Rogers

why she had stolen from his stash. Rogers replied by

laughing. At that point, Oliver became angry over Rogers’

reaction to the accusation and attempted to take hostile

action against her. Mr. Toliver, however, “pushed” him

back and told him to “back off or chill out.” R.30, Ex. 9 at

2. Smith’s affidavit continues by relating that Thompson

told him that Oliver did not like Rogers because she was

usually high on cocaine and had denied Oliver’s sexual

advances. Henry confirmed Thompson’s statements, the

affidavit asserts, by yelling in the background.

Smith’s affidavit continues by recounting that, after

describing Oliver’s burst of anger toward Rogers, Thompson further described how Mr. Toliver had told him

that Rogers did not steal from the stash even though

she was an addict. After these statements in defense of

Rogers, Mr. Toliver threw his weapon to Thompson and

told him to shoot whomever he believed had taken from

the stash (“shoot me or whoever you think stole it,” id.). All

of a sudden, there was a shot, not from Mr. Toliver’s

weapon but from Oliver’s gun. Mr. Toliver then “grabbed

at Oliver” and yelled: “You killed the bitch.” Id. Thompson,

along with others, ran from the house.

Henry then got back on the phone, recounts the affidavit.

Smith asked him why Mr. Toliver had been charged if
No. 06-3316 25

Oliver had done the shooting. Henry replied that the

prosecutor wanted to prosecute both Mr. Toliver and his

brother Oliver for the shooting and that Smith and Henry

had been told that they would be charged with murder

if they did not cooperate. The day after the shooting,

Thompson had spoken with his mother who told him

to keep quiet.

The affidavit concluded by recounting that the prosecutor had replied to Smith’s letter; the prosecutor had stated

that he could not help Smith with respect to his prosecution in another county and that Smith’s information did

not shed any new light on the pending case against

Mr. Toliver.

2.

The Court of Appeals of Wisconsin acknowledged that

the “suppression of evidence favorable to an accused

upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution.” Toliver II,

2001 WL 1084999, at *9 ¶ 38 (quoting Brady v. Maryland,

373 U.S. 83, 87 (1963)). The appellate court also acknowledged that this duty applies to impeachment, as well as

exculpatory, evidence. Id. (citing Stickler v. Greene, 527

U.S. 263, 280 (1999)). Finally, the court noted that such

evidence is material only if there is “a reasonable probability that, had the evidence been available to the defense, the

result in the proceedings would have been different.” Id.

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
26 No. 06-3316

Although the Wisconsin appellate court noted that the State 6

had denied that the prosecutor ever had received Smith’s letter,

it did not rest its ruling on that basis. Toliver II, 2001 WL

1084999, at *8-10 ¶¶ 33-39 & n.10. Instead, the appellate

court assumed that the letter had been received by the prosecutor and disposed of Mr. Toliver’s argument on the merits.

The court then turned to the possible effect of the

disclosure of this evidence on Mr. Toliver’s trial. The

court took the view that the disclosure would not have

affected the outcome. Notably, the court conceded that,

assuming that the letter actually had been sent and Smith

testified in accordance with his affidavit, “his statements 6

conceivably could have affected the jury’s view of the

persons Smith named, their motives for testifying, and

Oliver’s reasons for shooting Rogers.” Id. at *10 ¶ 39.

Nevertheless, continued the court, the testimony would not

have influenced the jury’s view of Mr. Toliver’s involvement in the homicide. In the appellate court’s view, the

facts overwhelmingly established Mr. Toliver’s guilt,

“indeed his leadership, for this savage murder.” Id. at *4

¶ 16. According to the court, Mr. Toliver was involved in

the murder of Rogers from start to finish:

Stephen responded to Thompson’s page. Stephen

enlisted Oliver’s assistance. Stephen and Oliver armed

themselves and brought Rogers back to Thompson.

Stephen directed Thompson to shoot whomever

Thompson believed had taken the drug money. The

fact that Oliver, not Thompson, shot Rogers in no

way reduces Stephen’s complicity in Oliver’s intentional act of killing her.
No. 06-3316 27

Thus, our fresh review of this case returns us to our

earlier conclusion: Although Oliver immediately

caused Rogers’ death, it was Stephen who intentionally

directed it and assisted in it. Therefore, the jury could

have had “no reasonable doubt as to the requisite

intent” of either Stephen or his brother.

Id. at *5 ¶ 17 (internal quotation marks and citation omitted).

After summarizing the decision of the Wisconsin appellate court, the district court held that it could not

“conclude that the state court’s determination that the

suppressed evidence was not material is contrary to, or an

unreasonable application of, clearly established Supreme

Court precedent.” R.41 at 20. The state court had determined that “Mr. Smith’s testimony possibly would have

affected the jury’s views of the persons Mr. Smith named,

their motives for testifying, and Oliver’s reasons for

shooting Ms. Rogers,” but the court nevertheless concluded

that the result of the proceeding would not have been

different. Id. The district court explained, therefore, that

it “could not conclude that the state court’s determination” was unreasonable. Id.

3.

Mr. Toliver contends that the Wisconsin appellate court

unreasonably applied clearly established Supreme Court

precedent when it determined that the information contained in Smith’s letter did not constitute material, exculpatory evidence. To establish a Brady violation, a
28 No. 06-3316

defendant must demonstrate that: (1) the prosecution

suppressed evidence; (2) the evidence was favorable to the

defense; and (3) the evidence was material to an issue

at trial. United States v. Walton, 217 F.3d 443, 450 (7th Cir.

2000). The materiality element of Brady does not require

a demonstration that “disclosure of the suppressed evidence would have resulted ultimately in the defendant’s

acquittal” but only that there is a “reasonable probability”

of a different result. Kyles v. Whitley, 514 U.S. 419, 434

(1995).

There is little doubt that, had the disputed evidence

been admitted, it would have been reasonable for the jury

to conclude as the Court of Appeals of Wisconsin believed that it would. With great respect, however, we

believe that it is not reasonable to conclude that such a

result was the only result or even the probable result that

the jury would have reached. Again, we believe that our

colleagues on the Court of Appeals of Wisconsin failed

to apprehend the nature of Mr. Toliver’s defense and

failed to assess how the evidence in question might have

enhanced the possibility of that defense succeeding. See

Kyles, 514 U.S. at 441-54 (conducting a thorough examination of suppressed Brady evidence, what purpose the

evidence would have served and how it might have

affected the jury’s view of the evidence that was introduced); see also Boss v. Pierce, 263 F.3d 734, 745 (7th Cir.

2001) (holding that a state court unreasonably fails to

apply Kyles, 514 U.S. 419, when it fails to “undertake a

careful, balanced evaluation of the nature and strength

of both the evidence the defense was prevented from

presenting and the evidence each side presented at trial”);

Bailey v. Rae, 339 F.3d 1107, 1118 (9th Cir. 2003).
No. 06-3316 29

As we discussed in analyzing Mr. Toliver’s ineffective

assistance of counsel claim, Mr. Toliver does not dispute

that he and Oliver armed themselves and brought Rogers

back to the house at Thompson’s request; nor does he

dispute that he was present when Oliver shot Rogers.

He does submit, however, that his role in the events that

led to Rogers’ murder ought to be characterized differently. According to Mr. Toliver, there is evidence that he

did not direct or encourage Oliver to shoot Rogers or

otherwise intentionally aid and abet in Rogers’ murder.

Mr. Toliver notes that many witnesses, including many

of the State’s witnesses, testified that he was the one who

pushed away Oliver, his brother and the shooter, when

Oliver moved aggressively toward Rogers and that he

told Oliver to calm down. Additionally, two of the State’s

witnesses testified that, from their observations inside

the house, they did not believe that either Mr. Toliver or

Oliver intended to harm Rogers upon bringing her back to

the house. R.30, Ex. 4 at 47 (testimony of Thompson); id.,

Ex. 7 at 102, 106-07 (testimony of Foster). Mr. Toliver also

claims to have pointed out to Thompson that Rogers’ status

as a cocaine user did not necessarily make her the thief.

Finally, Mr. Toliver contends that his exclamation after

Oliver shot Rogers was not one of encouragement but

of anger or surprise.

We believe that the disputed evidence would have

bolstered Mr. Toliver’s defense and therefore would

have enhanced significantly the chances of the jury’s

accepting Mr. Toliver’s characterization of the facts. See

Kyles, 514 U.S. at 434. Because Thompson’s account, as

related in Smith’s affidavit, would not have squared
30 No. 06-3316

See supra part B.3. 7

with his account at trial, the jury would have been able

to evaluate more accurately Thompson’s recollection of,

and the truthfulness of his testimony regarding, Mr.

Toliver’s involvement in the Rogers murder. At trial,

Thompson testified that, although Mr. Toliver had

pushed Oliver away when Oliver moved aggressively

toward Rogers, he did not tell Oliver to calm down.

Thompson also testified that, after Oliver shot Rogers for

the first time, Mr. Toliver had not attempted to prevent

Oliver from shooting her again but rather he exclaimed,

“kill that bitch, kill her.” R.30, Ex. 4 at 36. Smith, however,

claims that Thompson had admitted that Mr. Toliver

actually had “grabbed at” Oliver to prevent him from

shooting Rogers again—testimony that could have been

corroborated, had Mr. Toliver’s counsel called Angeal to

testify —and yelled, “you killed that bitch,” in surprise. 7

Id., Ex. 9 at 2. Additionally, during Thompson’s trial

testimony, the jury was apprised that Thompson had not

been charged with any drug offenses based on the statements that he had made to the police in conjunction

with the Rogers murder. The Smith affidavit hints at the

existence of an arrangement, whereby the prosecutor had

promised immunity to Thompson in exchange for his

cooperation. See Giglio v. United States, 405 U.S. 150, 154-55

(1972) (finding a due process violation where the prosecution failed to disclose evidence of a key witness’

“agreement as to a future prosecution” because such

an agreement would have been relevant to the witness’

credibility and “the jury was entitled to know of it”).
No. 06-3316 31

The disputed evidence might well have created a reasonable doubt as to whether Mr. Toliver, despite his prominence that night, intentionally aided and abetted in the

murder of Rogers or attempted to prevent it. As with its

analysis of prejudice for purposes of Mr. Toliver’s ineffective assistance of counsel claim, the Wisconsin appellate

court’s analysis of the materiality of the Smith letter was

unreasonable. The court did not “carefully assess[] what

purposes the suppressed evidence might have served and

how that evidence might have affected the jury’s consideration of the evidence that was introduced.” Boss v. Pierce,

263 F.3d 734, 745 (7th Cir. 2001) (noting the importance

of, and holding as material under Brady and Kyles, evidence

bearing on credibility where witness testimony was crucial

and the “evidence presented by the state was not overwhelming”). It merely recited, in a rote manner, the

evidence that the State had introduced and concluded,

based on that evidence, that the exculpatory evidence

would not have been material. Had the evidence in the

Smith affidavit been presented to the jury, however, it

might well have concluded that, when Oliver shot Rogers,

he acted not only alone but against the wishes of Mr.

Toliver. Consequently, we believe that the disputed

evidence may “reasonably be taken to put the whole

case in such a different light as to undermine confidence

in the verdict.” Kyles, 514 U.S. at 435.

Conclusion

The Wisconsin appellate court’s determination that the

evidence contained in the affidavits of Harvey Toliver
32 No. 06-3316

and Angeal Toliver had not prejudiced Mr. Toliver’s

defense was an unreasonable application of clearly established Supreme Court precedent. Additionally, the evidence contained in the Smith letter, if it actually was

received by the prosecutor, constitutes material, exculpatory evidence that the State was required to disclose to

Mr. Toliver’s defense. The district court therefore committed error in denying the writ on the ground that

these determinations by the state court were reasonable.

The state courts never resolved, under the first prong of

the Strickland analysis, whether Mr. Toliver’s counsel was

ineffective in not interviewing Harvey and in not calling

Angeal. Therefore, issues of fact concerning counsel’s

competence were never resolved. Similarly, the state courts

never resolved whether the prosecutor had received the

letter allegedly sent by Smith. On remand, the district

court should resolve these issues. On the basis of its

findings, the court then should determine whether the

writ ought to be granted.

Accordingly, the judgment of the district court is reversed, and the case is remanded to the district court for

proceedings consistent with this opinion.

REVERSED and REMANDED

8-27-08