Habeas Corpus – Ineffective assistance

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Habeas Corpus – Ineffective assistance

Where the defendant’s attorney did not call two witnesses who would have testified in the defendant’s favor, and he had no strategic reason for not doing so, counsel was ineffective.

“In the context of this case, the testimony of Angeal and Harvey was crucial. The State presented three witnesses who testified that Mr. Toliver instructed Oliver to shoot Rogers. Mr. Toliver’s defense was that he had not instructed Oliver to shoot her and that he had commented after the shooting that Oliver ‘shot the bitch.’ Angeal and Harvey were the only two witnesses that would have corroborated his theory of defense. Angeal’s testimony also would have helped to impeach one of the State’s witnesses. ‘[I]n a swearing match’ between the two sides, counsel’s failure to call two useful, corroborating witnesses, despite the family relationship, constitutes deficient performance. See Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir. 2006) (indicating that the testimony of witnesses, who would corroborate the defendant’s account, was ‘a crucial aspect of [the] defense’). This conclusion is all the more true where counsel did not call any defense witnesses at trial besides Mr. Toliver.”

Affirmed.

11-1577 Toliver v. Pollard

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Ripple, J.

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