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Home / Opinion / 02-C-1123 Toliver v. McCaughtry

02-C-1123 Toliver v. McCaughtry

Habeas Corpus
Ineffective assistance of counsel

Where a defendant’s attorney had no strategic reason for not interviewing potential witnesses, his representation was deficient.

“In this case, a review of the record shows that the petitioner’s trial counsel told the petitioner that he was not going to call Angeal Toliver to testify because ‘they wouldn’t believe her because she was the mother of [his] children.’ (Hearing Tr. at 55). He also told the petitioner that he had not met with Harvey Toliver because ‘Harvey was related to [the petitioner] and might not be believable.’ (Hearing Tr. at 53). As the appellate court found, in light of the defense and the testimony these witnesses would have provided, their ‘possible bias does not provide a basis for counsel’s failure to call them.’ Toliver, 539 F.3d at 775. Moreover, counsel could not have made a reasonable strategic decision that Harvey’s testimony would be unhelpful or unbelievable because counsel did not even interview Harvey. See Strickland, 466 U.S. at 690-91; Rolan, 445 F.3d at 682. The failure to interview Harvey not only means that counsel was unable to make a strategic decision as to the helpfulness or credibility of Harvey’s testimony, it also means that counsel was unable to ‘determine whether [Harvey] might have other information potentially valuable to the defense’ beyond that which the petitioner had communicated to counsel. Rolan, 445 F.3d at 682. Therefore, the presumption of validity does not apply to counsel’s decision not to call Harvey because that decision was uninformed. See id. Under these circumstances, this court finds that the petitioner’s trial counsel’s performance was insufficient.”

02-C-1123 Toliver v. McCaughtry

E.D.Wis., Gorence, Mag. J.

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