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Seventh Circuit Reiterates IAC Requires Only ‘Reasonable Probability,’ Not ‘More Likely Than Not,’ of Different Outcome

The U.S. Court of Appeals for the Seventh Circuit held that the federal district court unreasonably applied “clearly established federal law” when it erroneously required a more demanding standard of review than the law requires for ineffective assistance claims (“IAC”) where trial counsel was clearly ineffective, requiring remand to grant habeas relief.

The state trial court agreed that Terez Cook’s trial lawyer was ineffective. Cook lost at trial after numerous errors prompted the trial judge to grant him a new trial, saying that counsel’s “deficiencies are so big that I would have to conclude if it had been tried correctly, that there’s a probability of a different result.”

When the State appealed, the Wisconsin Court of Appeals reversed, holding that Cook would not have won at trial absent the errors. Cook then filed a habeas corpus petition in federal court, raising several IAC claims. The district court found that the state court of appeals had in fact applied the wrong IAC standard but nonetheless concluded it was required to give deference to the state courts, so it denied Cook’s petition. He appealed.

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may not grant a habeas corpus petition unless the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” That’s the relevant provision of the AEDPA in question in Cooks’ case.

In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court held that in order to show IAC a habeas petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” And that’s the “clearly established federal law” at issue under the AEDPA here.

Of all the errors by counsel that the Seventh Circuit found undermined the confidence in the outcome of Cook’s trial, one error stood out. Cook was portrayed by the State as an accomplice to a home invasion, but his claim was that another man he knew (and who looked like him) was the other robber. However, counsel never made any effort to locate the other person.

That was a crucial error, the Court said, because Cook and the other man resemble each other, and having the witness confront both of them at trial may have raised a reasonable doubt with the jury.

The Court was also concerned with a “serious misapprehension of the facts” by the State in the state court of appeals. The State told the court that Cook admitted he was there when the robbers were buying goods to commit the crime. But the record did not show this, and at oral argument, the State “overstated perhaps the most material facts in the case,” the Seventh Circuit said. “The state shoulders a weighty obligation to play entirely straight with the facts that affect a person’s liberty. Too much is at stake for all involved to see what we did here from the state.”

But, “once again,” Cook’s lawyer never challenged the State’s false evidence that Cook admitted he was part of the crime.

“Prejudice” — or the reasonable probability of a different outcome — under Strickland, though, considers all of counsel’s errors “as a whole,” the Court explained. While three significant errors made up most of the Court’s opinion (failure to locate the other man, to question incentivized codefendants who testified at trial, and to object to use of Cook’s cell phone location information), “taken together, these instances of deficient performance undermined the trial judge’s confidence in the result of the trial, and as an objective matter we come to the same conclusion.”

The district court therefore erred by giving too much deference to the state court of appeals’ decision, the Court said. “Cook did not need to prove that counsel’s deficient conduct more likely than not altered the outcome in the case.” Instead, he had to show only a “reasonable probability” of a different outcome. The district court unreasonably applied the Strickland standard, the Court concluded.

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Related legal case

Cook v. Foster



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