Floyd Richardson v. Kenneth R. Briley

1 Richardson’s death sentence was commuted on January 11,
2003, to a sentence of life without possibility of parole. Then-
Governor George Ryan commuted the death sentences of all pris-
oners who were on death row in Illinois on that date.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1513
F LOYD R ICHARDSON ,
Petitioner-Appellee,
v.
K ENNETH R. B RILEY ,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 6425—Matthew F. Kennelly, Judge.
____________
A RGUED N OVEMBER 4, 2004—D ECIDED M ARCH 18, 2005
____________
Before B AUER , R IPPLE , and K ANNE , Circuit Judges.
K ANNE , Circuit Judge. Floyd Richardson was convicted by
an Illinois state court jury for the armed robbery of Twin
Foods and Liquors and the murder of store clerk George
Vrabel. In 1984, he was sentenced to death for these
crimes. 1 Since that time, he unsuccessfully worked his way
through the appeal and post-conviction review process in

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2 No. 04-1513
Illinois. He then filed a habeas corpus petition in federal
district court and an evidentiary hearing was held in
August 2002. The district court granted Richardson’s
petition for a writ of habeas corpus, finding that his con-
viction was tainted by intentional deception on the part of
the prosecution. We, however, find that Richardson did not
meet his burden of proving prejudice and, therefore, we
reverse the decision of the district court and vacate the
grant of the writ.
I. History
Twin Foods and Liquors is a convenience store located in
Chicago. On April 1, 1980, at about 10:00 P . M ., the store
was robbed and a clerk, George Vrabel, was fatally shot. In
the early morning of April 5, 1980, a tavern one mile away
was also robbed and its owner was shot and wounded.
Ballistics evidence linked the two crimes.
Richardson was arrested on May 4, 1982, as a suspect in
an unrelated robbery. At that time, detectives reopened the
investigation into Vrabel’s murder. Detectives John Solecki
and Joseph DiGiacomo put together a photo lineup which
included Richardson’s photo and showed it to witnesses of
the two 1980 robberies. Several of the witnesses identified
Richardson, and he was charged with murder.
A. Testimony at Trial
Ballistics evidence proved that the same gun was used
in both the Twin Foods robbery and the tavern robbery.
Ernest Warner, a Chicago Police Department firearms ex-
aminer, testified that he had examined bullets that were
recovered from the Twin Foods location and from the tavern.
He explained that in order to determine whether two dif-
ferent bullets were fired from the same gun, he uses class
characteristics common to all guns produced by the same

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No. 04-1513 3
manufacturer and individual characteristics unique to each
gun. He concluded that the same gun fired the bullets recov-
ered from the sites of both robberies. The murder weapon,
however, was never recovered.
1. Witnesses of the Twin Foods Robbery
Shirley Bowden was working as a cashier at Twin Foods
and Liquors the night of the robbery. At about 10:00 P . M .,
she noticed a man standing near the liquor department who
was “huddled up” in his coat even though it was not
especially cold that night. The man walked to the liquor
department and passed within four feet of Bowden. A few
minutes later, Bowden heard a gunshot and the warning,
“Stay down mother fucker. This is a stickup. Stay down.”
Bowden looked toward the liquor department and saw the
man she had noticed earlier reaching over the counter and
taking money from the register. After she heard a second
shot, the robber ran through the store and out the front door,
passing Bowden as he did so. Bowden ducked behind the
counter when she saw him coming toward her but stood up
after he exited to verify which direction he was running.
Bowden called the police and then went to the liquor de-
partment to find Vrabel lying on the floor and bleeding.
At trial, Bowden identified Floyd Richardson as the man
whom she saw commit the robbery and murder. She also
testified that she had seen Richardson in the neighborhood
prior to April 1. She had not viewed a lineup or photo array
before trial.
Bonnie Williams was also working at Twin Foods on the
night of the robbery. Williams testified that she ducked
behind a counter when told that a robbery was occurring.
When she heard the first shot, she stood up and looked to-
ward the liquor department in time to see a man reaching
behind the counter and taking money out of the register.

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4 No. 04-1513
The man ran out of the store past Williams and Bowden.
Williams was able to see “his whole face” when it was “just
a few feet” away.
Williams identified Richardson in open court and testified
that she had selected his photograph from both black and
white and color photo arrays that police officers had shown
her in 1982. She said she had seen Richardson once before
the robbery, but that she did not know him personally.
2. Witnesses of the Tavern Robbery
Thomas Fitzpatrick testified about the April 5 robbery
which took place at his tavern about one mile from Twin
Foods. At approximately 1:30 A . M ., he was standing at the
cash register of his tavern when a man entered waving a
gun. The man said “this is a stickup” and jumped over the
bar. Fitzpatrick tried to run away from the man and was
shot in the back. He stated that he crawled to a hallway
and lay on the floor face up. The assailant approached and
stood over Fitzpatrick and demanded to know where the
rest of the money was located. When Fitzpatrick said there
was no more money, the robber left the store. Fitzpatrick
testified that there was a fluorescent light right above him
as he spoke to the robber and that “you could see very well.”
He also claimed that he was fully conscious during the
encounter, even though he had been shot.
In May 1982, Fitzpatrick tentatively identified Richardson
as the gunman after viewing both black and white and color
photographs. He viewed a lineup on October 5, 1982, and
again identified Richardson as the man who shot him. At
trial, he testified, “I’m just positive when I identified him in
the lineup that that was the man that came after me and
shot me.” He further testified, “When I saw Floyd Richard-
son in the lineup, I knew it was him, positively. There was
no doubt in my mind.” Fitzpatrick also identified Richard-
son in court.

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No. 04-1513 5
Ray Slagle was a patron in Fitzpatrick’s tavern on the
night of the robbery. When he heard shots, he stepped be-
hind a partition and “watched everything that happened”
from a distance of about ten feet. He saw a man reaching
into the cash register. Slagle looked around the partition
three or four times to observe the robber’s actions. Slagle
threw a chair at the robber as he ran toward the exit. Like
Fitzpatrick, Slagle testified that the tavern was well lit.
Slagle also testified that he picked Richardson’s photo-
graph out of a police photo array and later identified him in
a lineup. He identified Richardson as the robber at trial.
3. Defense Witnesses
The defense called Detective John Solecki, who testified
that he had interviewed witnesses to the Vrabel shooting
and then sent a flash message from the scene describing the
suspect as having a “full, trimmed beard.” He did not
identify who had given him that description.
After examining Solecki, Richardson’s attorney advised
the trial judge that it was “possible” that he intended to call
another witness. The judge then called a short recess. When
trial resumed, the following colloquy took place between Mr.
Lazzaro, one of the assistant state’s attorneys prosecuting
the case, and Mr. Babb, one of the assistant public defend-
ers representing Richardson:
Mr. Lazzaro: Your Honor, I just want to raise, on the
record, that which has occurred in the last
20 or 25 minutes or so. Listed in a sup-
plemental answer to discovery, which we
gave to Counsel, was a name of a Floyd
Butler that actually is Lloyd Butler. It’s
a typographical error and his real name
is, in fact, a Leonard Butler. He just goes
by the name of Lloyd. I have informed

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6 No. 04-1513
Counsel as to certain statements that Mr.
Butler will give in rebuttal, if Myron
Moses is called.
He would deny telling Mr. Butler that
shortly, within a matter of hours after the
incident, that the person coming out the
door was, in fact, Floyd Richardson, and
I’ve informed Counsel that is the rebuttal
testimony that I expect as to Mr. Butler. I
have informed him that Mr. Butler is, in
fact, employed by the Rosemont Police
Department and they can contact him
there, if they have any questions.
I just want the record to show I’m, in fact,
giving them that information if, in fact,
Myron Moses is called as a witness. Is
that correct, Counsel?
Mr. Babb: Except, we don’t intend to put him on to
deny anything. We intend to put him on
for the purpose of saying he knew Floyd
Richardson and that was not Floyd
Richardson that came out of there with a
gun.
The Court: At which point, the cross examination—
Mr. Lazzaro: Would be as to what he spoke to
Mr. Butler, and I want the record to re-
flect that is the information that has been
given to me by Mr. Butler.
Mr. Babb: And also, to be fair, Mr. Moses has been
confronted with that, in our presence, and
he denies that he said that to Mr. Butler,
who is a brother of his girlfriend.
Mr. Lazzaro: This is in the nature of further discovery.
The believability, the voracity [sic] is for
the jury.

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No. 04-1513 7
The Court: It’s for somebody other than those of us
who are in the room.
Mr. Babb: We are simply not going to put him on to-
day. We want to talk to Mr. Butler.
The Court: What do you want me to do as far as this
jury is concerned?
Mr. Babb: Send them home.
(Trial Tr. at 631-33). The trial judge then recessed the trial
for the rest of the day.
The next day, the defense called Richardson’s mother. She
testified that Richardson never had a full beard, only a
mustache and a goatee. The defense then rested. The record
does not reflect any further discussion about Myron Moses
or Leonard Butler.
4. Sentencing
The jury found Richardson guilty of murder and armed
robbery. Richardson waived his right to a jury at sentenc-
ing. In aggravation, the prosecution offered evidence of two
previous armed robbery convictions and convictions for felony
theft, possession of a controlled substance, and unlawful
use of a weapon. Richardson had been arrested in seven
other instances, though the charges were dismissed, and
had struck a correctional officer while incarcerated. The
prosecution also offered evidence relating to the May 4,
1982, attempted robbery which led to Richardson’s arrest.
As mitigation testimony, Richardson’s mother and
common law wife were called. His mother explained that
Richardson had helped to take care of his brothers and sis-
ters after his father died. His wife testified that Richardson
loved her and that he tried to make a better life for her and
their two children. Richardson took the stand and denied
shooting either Vrabel or Fitzpatrick.

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8 No. 04-1513
The trial judge sentenced Richardson to death and the con-
viction and sentence were affirmed by the Illinois Supreme
Court on direct appeal in 1988. People v. Richardson, 528
N.E.2d 612 (Ill. 1988) (Richardson I). The United States
Supreme Court denied certiorari in March 1989. Richardson
v. Illinois, 489 U.S. 1100 (1989) (Richardson II).
B. Post-Conviction Proceedings
In January 1991, Richardson filed a petition for relief under
the Illinois Post-Conviction Hearing Act. 725 Ill. Comp. Stat.
5/122-1. Richardson argued that his trial counsel were
ineffective because they did not object to the dismissal of
prospective jurors who were black, they did not call Myron
Moses to testify, and they did not present significant miti-
gation evidence at the sentencing hearing. Richardson also
found fault with his appellate counsel. Finally, he argued
that the prosecution had violated Batson v. Kentucky, 476
U.S. 79 (1986), by removing jurors solely on the basis of race.
The petition was dismissed in 1997. Richardson appealed to
the Illinois Supreme Court and the lower court’s ruling was
affirmed. People v. Richardson, 727 N.E.2d 362 (Ill. 2000)
(Richardson III). The United States Supreme Court again
denied certiorari. Richardson v. Illinois, 531 U.S. 871 (2000)
(Richardson IV).
C. Federal Habeas Corpus Petition
Richardson filed a petition for a writ of habeas corpus in
February 2001. 28 U.S.C. § 2254. He argued that his due
process rights were violated in several different ways. Most
relevant to this appeal, he alleged that Assistant State’s
Attorney Lazzaro committed prosecutorial misconduct when
he falsely informed Richardson’s counsel that Leonard
Butler would impeach the testimony of Myron Moses.

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No. 04-1513 9
Richardson supported this claim with several affidavits.
Moses stated that he knew Richardson, that he had seen
the Twin Foods robber flee the store, and that the robber
was not Richardson. Butler stated that he had never gone
by the names Lloyd or Floyd, Moses had not told him that
Richardson was the man Moses saw running from the store,
and Butler had never told the prosecutors or the police that
Moses had said any such thing. Richardson stated that he
told his counsel that they should call Moses in spite of the
potential impeaching testimony, but that they had ex-
plained to Richardson that it would “look bad” if a police
officer testified in rebuttal. Richardson then agreed that
Moses should not be called. Richardson’s trial counsel
submitted affidavits stating that they did not remember
why they had not called Moses to testify, whether they had
spoken to Moses, or whether they had interviewed Butler.
The state argues that Richardson’s prosecutorial miscon-
duct claim was procedurally defaulted because it was not
raised in state court. However, over an objection from the
state, the district court held an evidentiary hearing on the
claims of prosecutorial misconduct and ineffective assis-
tance of counsel. Citing Thomas v. McCaughtry, 201 F.3d
995, 999 (7th Cir. 2000), the court agreed that the prosecu-
torial misconduct claim had not been raised in state court
but held that the procedural default could be excused if
Richardson could show cause and prejudice for his failure
to raise the claim.
The district court found that Richardson did show cause
and prejudice because the prosecutor’s misrepresentation
impeded Richardson’s ability to raise the claim in state court.
The state acknowledges that the district court’s credibility
and demeanor evidence is difficult to challenge; therefore,
the “cause” determination is not contested. Instead the state
argues that Richardson did not meet his burden of proving
prejudice. For the reasons set forth below, we agree that
Richardson was not prejudiced by the prosecutor’s state-
ment.

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10 No. 04-1513
II. Analysis
Richardson’s habeas petition is governed by 28 U.S.C.
§ 2254 as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). In a habeas appeal,
this court reviews the district court’s findings of fact for
clear error. Legal conclusions and mixed questions of law
and fact are reviewed de novo. See, e.g., Foster v. Schomig,
223 F.3d 626, 634 n.4 (7th Cir. 2000); Warren v. Richland
County Circuit Court, 223 F.3d 454 (7th Cir. 2000).
The purpose of the AEDPA is to advance the doctrines of
comity, finality, and federalism. See Williams v. Taylor, 529
U.S. 420, 436 (2000). It is an attempt to “limit the scope of
federal intrusion into state criminal adjudications and to
safeguard the States’ interest in the integrity of their crim-
inal and collateral proceedings.” Id. at 436.
A. Evidentiary Hearing
Section 2254(e)(2) controls whether Richardson should
have received an evidentiary hearing on his claim in the
district court. The statute reads as follows:
If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(ii) a factual predicate that could not have been pre-
viously discovered through the exercise of due dili-
gence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for

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No. 04-1513 11
constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.
§ 2254(e)(2). It is undisputed that Richardson did not fully
develop the factual basis of his prosecutorial misconduct
claim in state court. However, “[u]nder the opening clause
of § 2254(e)(2), a failure to develop the factual basis of a
claim is not established unless there is a lack of diligence,
or some greater fault, attributable to the prisoner or the
prisoner’s counsel.” Williams, 529 U.S. at 432 (emphasis
added).
The district court found that there was no lack of dili-
gence on the part of Richardson’s counsel; “rather[,] their
further inquiry regarding the Myron Moses/Leonard Butler
matter was effectively thwarted by their reasonable reliance
on the veracity of the prosecutor’s misrepresentations at
trial.” Richardson v. Briley, No. 00 C 6425, 2004 WL 419902,
at *10 (N.D. Ill. Feb. 10, 2004) (Richardson V). We have
stated that a petitioner should not be penalized “for pre-
senting an issue to us that he was unable to present to the
state courts because of the state’s misconduct.” Crivens v.
Roth, 172 F.3d 991, 995 (7th Cir. 1999). If the failure to
develop the factual basis of the prosecutorial misconduct
claim should not be attributed to Richardson, he does not
have to meet the strict standards for the granting of an evi-
dentiary hearing found in § 2254(e)(2)(A) and (B). See Davis
v. Lambert, 388 F.3d 1052, 1060 (7th Cir. 2004). However,
if that section does not apply, “it is then necessary to
evaluate the request for an evidentiary hearing under pre-
AEDPA standards.” Id. at 1061 (quoting Matheney v.
Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001)). “Under pre-
AEDPA standards, a federal evidentiary hearing is required
if (1) a habeas petitioner alleges facts which, if proved,
would entitle him to relief and (2) the state courts—for
reasons beyond the control of the petitioner—never consid-
ered the claim in a full and fair hearing.” Matheney, 253

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12 No. 04-1513
2 It is important to note that prosecutorial misconduct is not an
independent basis for habeas relief. The Supreme Court has made
clear that “the touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial, not
the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209,
219 (1982). The Court also noted that even when the misconduct
was “egregious,” such as knowing use of perjury, it is only the
“misconduct’s effect on the trial, not the blameworthiness of the
prosecutor” that will give rise to a due process violation. Id. at 220
n.10.
F.3d at 1039. See also Davis, 388 F.3d at 1061; Hampton v.
Leibach, 347 F.3d 219, 244 (7th Cir. 2003).
The district court did not consider Richardson’s request
for an evidentiary hearing within the constraints set forth
by Matheney. We will undertake that analysis now. It is
clear that the state courts did not conduct a hearing on
Richardson’s prosecutorial misconduct claim, so we must
consider whether Richardson alleged facts that, if proved,
would entitle him to relief. He alleged that Butler would not
have testified that he heard Moses say that Richardson was
the man who had run out of Twin Foods. If true, that fact
could prove that the prosecutor misrepresented Butler’s
potentially impeaching testimony. 2 This information is es-
sential to Richardson’s ineffective assistance claim as well
because that claim is based on his trial counsel’s failure to
interview Butler. In order to consider whether Richardson
was prejudiced by Lazzaro’s statement, the record needed
to be expanded so that the effect of Moses’s testimony could
be considered. See Hampton, 347 F.3d at 235; Matheney,
253 F.3d at 1039. Therefore, the evidentiary hearing was
properly granted.
B. Procedural Default
When a petitioner does not adequately present a claim to
the state courts, he “may obtain federal habeas relief only

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No. 04-1513 13
upon a showing of cause and prejudice for the default or
upon a showing that a failure to grant him relief would work
a fundamental miscarriage of justice.” Moore v. Casperson,
345 F.3d 474, 484 (7th Cir. 2003). In order to show preju-
dice, Richardson must prove that any errors worked to his
“actual and substantial disadvantage.” United States v.
Frady, 456 U.S. 152, 170 (1982) (emphasis in original). A
fundamental miscarriage of justice occurs when a petitioner
can prove that “a constitutional violation has probably re-
sulted in the conviction of one who is actually innocent.”
Murray v. Carrier, 477 U.S. 478, 496 (1986).
The district court found that Richardson had satisfied the
cause element by showing that “some objective factor ex-
ternal to the defense impeded counsel’s efforts to raise the
claim in state court.” Richardson V, 2004 WL 419902, at *15
(quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991) (cita-
tions omitted)). As noted earlier, the state has conceded that
it would be “difficult to challenge the district court’s cre-
dibility and demeanor determinations” and therefore does
not appeal as to that issue.
We must decide, then, whether Richardson has proven
that Lazzaro’s statement about Butler’s potential testimony
prejudiced him. Richardson “must shoulder the burden of
showing, not merely that the errors at his trial created a
possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” Frady, 465 U.S. at 170
(emphasis in original).
Richardson must therefore convince the court that “there
is a reasonable probability that the result of the trial would
have been different” if Moses had testified. Strickler v.
Greene, 527 U.S. 263, 289 (1999) (internal quotations omit-
ted). “The question is not whether the defendant would
more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair

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14 No. 04-1513
trial, understood as a trial resulting in a verdict worthy of
confidence.” Id. at 289-90 (quoting Kyles v. Whitley, 514 U.S.
419, 434 (1995)). Put another way, we must decide whether
“the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine
confidence in the verdict.” Id. at 290 (quoting Kyles, 514
U.S. at 435).
The district court found that “Richardson had a highly
credible exculpatory witness ready to take the stand” and
that “there is a reasonable probability that Richardson
would have been acquitted if he had not effectively been
tricked into deciding not to call Moses.” Richardson V, 2004
WL 419902, at *16, *17. The court based this determination
on an assessment of the reliability of the state’s witnesses
as compared to Moses’s reliability. The court found that the
state’s witness testimony “was subject to a significant
possibility of error based on the usual factors that can make
eyewitness identification testimony unreliable—the lack of
a significant opportunity to see the perpetrator, focus on
factors other than the perpetrator’s face (i.e., the gun), and
so on.” Id. at *17. The court also found that Moses “had a
much better opportunity to see the offender than did the
witnesses who had been inside the store[.]” Id.
Section 2254(e)(1) makes clear that in a habeas proceed-
ing, “a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” The Supreme Court of
Illinois made several factual determinations about the
credibility of the witnesses that were not given adequate
weight by the district court. The state court found that all
of the witnesses “had an excellent opportunity to observe
defendant and were able to recount in detail what he said
and did.” Richardson I, 528 N.E.2d at 623. When assessing
the witnesses individually, the state court found that as the
robber ran towards Williams, her “attention remained

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No. 04-1513 15
focused on the robbery and the robber”; Fitzpatrick “had an
excellent opportunity to view his assailant”; and “Slagle’s
attention was clearly focused on the gunman . . . .” Id.
These determinations of fact by the state court are entitled
to a presumption of correctness. Richardson did not provide
clear and convincing evidence that the witnesses were not
credible.
Giving appropriate recognition to the dictates of
§ 2254(e)(1), we have the testimony of four credible wit-
nesses who gave sworn testimony before the jury that
Richardson was the man they had seen commit the rob-
beries. On the other hand, we have the testimony of Myron
Moses. The district court was “convinced of the credibility
of [Moses’s] testimony that he got a good look at the fleeing
offender and that the man was not Floyd Richardson.”
Richardson V, 2004 WL 419902, at *11. The court also
found that Moses was “a completely disinterested person in
both the underlying prosecution and the present case, [who]
likewise has no reason or motive to have lied in his testi-
mony before this court.” Id.
We agree that there is no apparent reason that Moses
would have lied to the court. However, it is possible that he
was simply wrong. Moses was about twenty-five feet away,
across the street from Twin Foods, when the robber ran out
of the store. It was nighttime—10:00 P . M . Annette Butler,
who was with Moses at the time of the robbery, testified in
district court that she and Moses had run away from Twin
Foods when they heard the shot. Contrary to Moses’s
assertion that he was unable to pick anyone out of the
police lineup, a police detective testified that Moses did
make a tentative identification of Richardson in a lineup in
1982. Considering Moses’s testimony in the larger context
of the trial, it would not be unreasonable to conclude that
a jury could have discounted his credibility.
The testimony that Moses planned to offer is not enough
to “put the whole case in such a different light as to un-
dermine confidence in the verdict.” Kyles, 514 U.S. at 435.

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16 No. 04-1513
Although it may be true that there is a reasonable possibil-
ity that Moses’s testimony would have produced a different
result, that is not the standard Richardson must meet here.
Richardson’s “burden is to establish a reasonable probability
of a different result.” Strickler, 527 U.S. at 291 (emphasis in
original). We find that there is not a “reasonable probabil-
ity” that the jury would have found Moses’s testimony so
compelling that the testimony of the four other witnesses
would have been completely discounted and Richardson
would have been acquitted. Therefore, Richardson did not
prove that he was prejudiced by the prosecutor’s statement
at trial.
C. Ineffective Assistance
The district court did not reach the merits of Richardson’s
ineffective assistance claim. Because neither party raised
this issue on appeal, we need not discuss it here. We do note,
however, that the lack of prejudice discussed previously
would preclude the claim under Strickland v. Washington,
446 U.S. 668 (1984) (requiring a defendant who claims that
his counsel was ineffective to prove “that there is a reason-
able probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”).
III. Conclusion
Richardson has not proved that he was prejudiced by the
prosecutor’s statement regarding the possible impeachment
of a defense witness, or by his counsel’s failure to interview
the witness during trial. Therefore, we REVERSE the deci-
sion of the district court and V ACATE the grant of the
habeas corpus writ. Relief under § 2254 is DENIED .

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No. 04-1513 17
R IPPLE , Circuit Judge, concurring in part and dissenting
in part. I agree with my colleagues that the district court
did not heed AEDPA’s command that we afford a presump-
tion of correctness to the findings of the state court. Failure
to adhere to AEDPA’s command in this respect constitutes
an error of law and requires reversal of the judgment.
My colleagues go on, however, to evaluate de novo the
evidence of record and to determine that the petitioner has
not shown that the evidence favorable to him establishes a
reasonable probability of a different result. In my view, this
evaluation belongs, in the first instance, to the district
court.

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18 No. 04-1513
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-18-05

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