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Habeas Corpus — ineffective assistance

By: WISCONSIN LAW JOURNAL STAFF//August 12, 2014//

Habeas Corpus — ineffective assistance

By: WISCONSIN LAW JOURNAL STAFF//August 12, 2014//

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U.S. Court of Appeals for the 7th Circuit

Criminal

Habeas Corpus — ineffective assistance

Where a state prisoner’s attorney failed to interview or call a witness who would have contradicted the state’s evidence, the state courts unreasonably concluded he did not receive ineffective assistance of counsel.

“We noted in our earlier opinion that if Taylor’s affidavit were taken at face value, in addition to suggesting counsel’s performance was deficient, there is a reasonable probability that the result of the trial would have been different, and thus Mosley was prejudiced by counsel’s failure to call her. Mosley, 689 F.3d at 851–52. The truth of her affidavit now has come to bear. Taylor’s testimony did not entirely track Coward’s—Taylor testified that Mosley was in her apartment 45 minutes before the fire, whereas Coward testified that Mosley was in the schoolyard the entire evening; Coward said she was with Mosley and other adult females, but Taylor recalled seeing no adult females—but it did match her affidavit. And the state judge found Coward less believable than Fernando. The defense case needed more evidence to support its lone witness. We do not know how Taylor would have held up on the stand. But there is at least a reasonable probability that had she testified, the trial judge would have accepted her testimony, which bolstered Coward’s words on the critical issue of Mosley’s location at the time the fire started and further discredited Fernando’s fantastical account, thereby changing the verdict. Counsel’s failure to interview Taylor, however, squelched that opportunity and doomed the defense case. We conclude that Mosley was prejudiced by his counsel’s unreasonable representation.”

Affirmed.

13-2515 Mosley v. Butler

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Rovner, J.

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