In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1005
ANTHONY D. LEE, SR.,
Petitioner-Appellant,
v.
KEVIN KINK, Warden, Lawrence Correctional Center,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 00183 — Edmond E. Chang, Judge.
____________________
ARGUED OCTOBER 22, 2018 — DECIDED DECEMBER 21, 2018 —
AMENDED ON DENIAL OF REHEARING JANUARY 25, 2019
____________________
Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judg-
es.
EASTERBROOK, Circuit Judge. After a bench trial, Anthony
Lee was convicted of kidnapping and rape. He is serving
sentences that add to 100 years’ imprisonment. The state-
court judge found that Lee and his friend Burlmon Manley
forcibly abducted L.M. about 1 A.M. one day, dragging her
into their blue Cadillac while she kicked and screamed. Both
2 No. 18-1005
Manley and Lee struck and raped L.M. When L.M. resisted,
Lee retrieved a pistol from the car’s trunk to make her more
cooperative. About 3 A.M. L.M. escaped and ran naked to a
nearby house. Police took pictures of L.M.’s bloody face. Lee,
the only defense witness, said that L.M. entered the car vol-
untarily and that he did not touch her sexually—though be-
fore trial Lee said that he and L.M. had consensual oral sex.
The state judge found that L.M.’s testimony about her ordeal
was “very credible” and stated that the pictures showing her
injuries, and the testimony of the person who opened the
door to L.M., negated the defense of consent. Lee’s convic-
tions were affirmed on direct and collateral review. See Peo-
ple v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).
Lee’s federal petition under 28 U.S.C. §2254 contends that
he did not receive effective assistance of counsel. He asserts
that before trial his lawyer received five affidavits that cor-
roborated Lee’s story or provided exculpatory details, but
that counsel did not interview the affiants. In Lee’s post-
conviction proceedings the state judiciary did not hold an
evidentiary hearing. The appellate decision concluded that
none of the five affidavits is necessarily inconsistent with
Lee’s guilt, while the evidence against him is strong, so the
absence of these witnesses at trial was not prejudicial. The
federal district judge held that the state court’s decision was
not unreasonable, and he denied Lee’s petition. Lee v. Lamb,
2017 U.S. Dist. LEXIS 198451 (N.D. Ill. Dec. 4, 2017).
The state court’s decision includes the text of the affida-
vits, and the district court’s decision summarizes them. It is
enough for current purposes to give the flavor of how those
courts treated the affidavits. Here is the district court’s dis-
No. 18-1005 3
cussion of affidavits signed by Brian and Gayland Massen-
burg:
[T]he Massenburgs stated that they witnessed a white woman
get into a blue Cadillac. If the woman was indeed L.M., this tes-
timony would have contradicted L.M.’s assertion that she was
dragged kicking and screaming into the car, and would have
supported Lee’s testimony that L.M. willingly joined him and
Manley. But, as the [Illinois] Appellate Court noted, there are
some problems with the proposed testimony. First, the Massen-
burgs identified the wrong date in their affidavits, stating that
the event they witnessed was on April 16, when the crime in fact
happened on April 15. Even without the date mix-up, the Illinois
Appellate Court reasoned that still the Massenburg’s [sic] testi-
mony would not have affected the outcome because their affida-
vits do not clearly identify L.M., Lee, or Manley. The affidavits
state only that the Massenburgs saw a white woman get into a
blue Cadillac with two men, but did not provide names or de-
tailed descriptions. Of course, if defense counsel had called these
witnesses at trial, then he might have been able to elicit more de-
tail to establish the likelihood that the individuals the Massen-
burgs saw were the victim and the defendants. But this testimo-
ny was not developed (and still has not been developed), and the
Appellate Court was limited to the affidavits alone. It was not
unreasonable for the Appellate Court to conclude, on the limited
record available, that the Massenburg’s [sic] testimony had am-
biguities that would diminish its exculpatory value.
2017 U.S. Dist. LEXIS 198451 at *16–17 (footnote and citations
omiqed). This analysis would be convincing, if the law pre-
vented a court from going beyond the affidavits on collateral
review. But it does not; a federal court may hold an eviden-
tiary hearing if, through no fault of petitioner’s, the state-
court record lacks essential facts. 28 U.S.C. §2254(e)(2).
The district judge was right to observe that, “if defense
counsel had called these witnesses at trial, then he might
have been able to elicit more detail to establish the likelihood
4 No. 18-1005
that the individuals the Massenburgs saw were the victim
and the defendants.” At trial the Massenburgs may have
avoided the date error and positively identified L.M., Lee, or
Manley. Yet there are many blue Cadillacs in the world, so
the Massenburgs also might have stated that they did not see
L.M., Lee, or Manley. Perhaps Lee’s lawyer interviewed
them and they told him these things, which if so would ex-
plain why he did not call them at Lee’s trial. Counsel told
the state judge at a pretrial conference that “I just have not
had time to meet with all these people”, but we don’t know
what, if anything, he did to investigate their potential testi-
mony between then and trial. Perhaps he tried to interview
the Massenburgs but could not find them. We just don’t
know.
The state judiciary’s conclusion that the Massenburgs’
testimony would not have helped Lee depends on an unstat-
ed belief that, if called at trial, they would have parroted
their affidavits and refused to say another word. That’s un-
likely. They might have provided exculpatory testimony,
and then, if counsel neglected to contact them (another issue
on which the record is short of evidence), a finding of in-
effective assistance could follow. See, e.g., Washington v.
Smith, 219 F.3d 620, 631, 635 (7th Cir. 2000); Hall v. Washing-
ton, 106 F.3d 742, 749–50 (7th Cir. 1997).
After oral argument we invited counsel for both sides to
file supplemental briefs addressing whether Lee sought an
evidentiary hearing in state court, what evidence he pro-
posed to present, and (if Lee asked) why the state judiciary
declined to hold a hearing. Counsel representing Illinois did
not respond to this invitation, but Lee responded with en-
thusiasm and, more important, details. The state-court rec-
No. 18-1005 5
ord contains more than a dozen express requests for eviden-
tiary hearings—and, as far as we could see, no explanation
by any state judge why these requests were denied. (Indeed,
most of the requests do not appear to have been ruled on.)
Section 2254(e)(2) begins: “If the applicant has failed to
develop the factual basis of a claim in State court proceed-
ings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that … .” The “unless”
clause does not apply, so if Lee “has failed to develop the
factual basis of [his] claim” he cannot receive an evidentiary
hearing. Yet the affidavits, plus the multiple requests for
hearings, show that he did try to develop a record in state
court.
What one can say against this is that Lee did not articu-
late in state court, as clearly as his lawyers have articulated
in this appeal, the subjects that a hearing would have cov-
ered: what the affiants would have said, had they been
called at trial (and whether trial counsel ever met with them
to learn what they would have said, if called). Yet by asking
for a hearing to explore an ineffective-assistance theory—a
theory supported by multiple affidavits—Lee strongly im-
plied what topics would be covered at a hearing. This makes
it impossible to say that Lee has “failed to develop [in state
court] the factual basis of” his claim. He did what he could,
and the absence of evidence about what the trial would have
been like, had these affiants testified, must be aqributed to
the state judiciary’s failure to afford him a hearing. He is en-
titled to one in federal court, and the case is remanded so
that one can be held and we can learn what his aqorney did
(or omiqed) and what the affiants would have said on the
stand at trial. Only once that information has been gathered
6 No. 18-1005
can the district court make a reliable decision about the in-
effective-assistance claim.
Our analysis has an additional implication: By deciding
the merits without receiving the evidence that Lee sought to
have considered, the state judiciary acted unreasonably. Illi-
nois observes that Cullen v. Pinholster, 563 U.S. 170, 180–86
(2011), holds that, when 28 U.S.C. §2254(d)(1) requires a fed-
eral court to reject a collateral challenge, the court may not
hold an evidentiary hearing and consider evidence not pre-
sented to the state judiciary. Illinois wants us to treat this as
equivalent to a rule that state courts may insulate their deci-
sions from federal review by refusing to entertain vital evi-
dence. Yet a state court’s refusal to consider evidence can
render its decision unreasonable under §2254(d)(2) even
when its legal analysis satisfies §2254(d)(1).
Section 2254(d)(2) provides that “a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding”
lacks the shelter of §2254(d) as a whole. If the affidavits were
all Lee had offered to the state judiciary, then its decision
may have been a reasonable application of the law to a rea-
sonable determination of the facts. But Lee wanted to intro-
duce more, and the state barred the door. Pinholster concerns
the application of §2254(d)(1) to a state court’s legal reason-
ing; it does not prevent a federal court from finding factual
aspects of a state court’s decision unreasonable under
§2254(d)(2). See 563 U.S. at 184–85 & n.7. By assuming that
the language of the five affidavits would have been the total-
ity of the witnesses’ testimony had they been called at trial,
the state made an unreasonable factual determination under
No. 18-1005 7
§2254(d)(2), which permits a federal evidentiary hearing un-
der §2254(e)(2).
VACATED AND REMANDED