In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3316
S TEPHEN T OLIVER,
Petitioner-Appellant,
v.
G ARY R. M C C AUGHTRY, 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.
____________
A RGUED S EPTEMBER 5, 2007—D ECIDED A UGUST 27, 2008
____________
Before P OSNER, R IPPLE and R OVNER, Circuit Judges.
R IPPLE, 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 pro-
ceeds 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
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.1 Mr. Toliver then
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 re-
spond, 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 point-
blank 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,
1
At this point, Foster testified that she, thinking that this
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.
4 No. 06-3316
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 first-
degree intentional homicide (as a party to a crime), in
violation of sections 940.01 2 and 939.05 3 of the Wisconsin
Statutes. The court sentenced him to life imprisonment.
After sentencing, Mr. Toliver filed a pro se appeal.
2
Section 940.01 states: “[W]hoever causes the death of another
human being with intent to kill that person or another is guilty
of a Class A felony.”
3
Section 939.05, in relevant part, reads:
(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. . . .
No. 06-3316 5
On direct appeal to the Court of Appeals of Wisconsin,
Mr. Toliver brought, inter alia, a sufficiency of the evi-
dence 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 circumstan-
tial. 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
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 argu-
ments.” 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 Wis-
consin 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.4 Mr.
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
4
Wisconsin law allows a convicted defendant to file a post-
conviction motion in the trial court as part of his or her
direct appeal. See Wis. Stat. § 974.02.
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 other-
wise intentionally aid and abet Oliver’s murder of Rog-
ers. 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 crim-
inal 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 Ap-
peals 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 sub-
sequently 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 unrea-
sonable 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 pre-
sented 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 indistin-
guishable 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 applica-
tion” clause, a habeas petitioner must show that the state
court’s decision unreasonably extended a clearly estab-
lished 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 unrea-
sonable.” 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 pre-
sumption can be rebutted by clear and convincing evi-
dence. 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 other-
wise, 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 neces-
sary. 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 Strick-
land, 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 unpro-
fessional 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, how-
ever, 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 sub-
stantial factors in causing Rogers’ death’ . . . . Based on the
foregoing, this court cannot conclude that the state
court’s determination that [Mr. Toliver] was not prej-
udiced 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 prece-
dent.” 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 ineffec-
tive 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 wit-
nesses 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 reason-
ableness” 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 bound-
aries 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 reasonable-
ness—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 determina-
tion “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 perfor-
mance 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 testi-
mony. 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 “cer-
tainly 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, how-
ever, 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 fail-
ings). 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, regard-
less 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
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.5 Exactly what Mr. Toliver exclaimed after
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.
5
Angeal’s affidavit states that Foster told her that Mr. Toliver
“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.
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 Rog-
ers’ 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 testi-
mony 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 re-
instated 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 unprofes-
sional 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 dis-
cussed, 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 pros-
ecutor allegedly had received prior to Mr. Toliver’s trial.
In the affidavit submitted with Mr. Toliver’s post-convic-
tion 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, Thomp-
son 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 prosecu-
tor had replied to Smith’s letter; the prosecutor had stated
that he could not help Smith with respect to his prosecu-
tion 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 acknowl-
edged 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 probabil-
ity 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
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,6 “his statements
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 involve-
ment 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 inten-
tional act of killing her.
6
Although the Wisconsin appellate court noted that the State
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 prosecu-
tor and disposed of Mr. Toliver’s argument on the merits.
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 omit-
ted).
After summarizing the decision of the Wisconsin ap-
pellate 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 deter-
mined 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 determina-
tion” 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 con-
tained in Smith’s letter did not constitute material, excul-
patory 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 evi-
dence 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 be-
lieved 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 examina-
tion 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 intro-
duced); 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 differ-
ently. 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
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 7 —and yelled, “you killed that bitch,” in surprise.
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 state-
ments 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 pros-
ecution 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”).
7
See supra part B.3.
No. 06-3316 31
The disputed evidence might well have created a reason-
able doubt as to whether Mr. Toliver, despite his promi-
nence 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 ineffec-
tive 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 consider-
ation 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 over-
whelming”). 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 estab-
lished Supreme Court precedent. Additionally, the evi-
dence contained in the Smith letter, if it actually was
received by the prosecutor, constitutes material, exculpa-
tory evidence that the State was required to disclose to
Mr. Toliver’s defense. The district court therefore com-
mitted 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 re-
versed, and the case is remanded to the district court for
proceedings consistent with this opinion.
R EVERSED and R EMANDED
8-27-08