Anthony D. Lee , Sr . v. DARREN GALLOWAY, Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1552
A NTHONY D. LEE , SR .,
Petitioner-Appellant,
v.
D ARREN GALLOWAY, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cv-00183 — Martha M. Pacold, Judge.
____________________
A RGUED FEBRUARY 22, 2024 — D ECIDED J ULY 8, 2024
____________________
Before EASTERBROOK , SCUDDER , and KIRSCH , Circuit Judges.
S CUDDER , Circuit Judge. Following multiple convictions
and a 100-year sentence for horrific sexual assaults and aggra-
vated kidnapping, Anthony Lee’s quest for postconviction
relief returns. In 2018 we remanded the case to the district
court for an evidentiary hearing regarding defense counsel’s
diligence in investigating five potential witnesses who pur-
portedly prepared affidavits before trial and may have
offered exculpatory testimony. The district court held a

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2 No. 23-1552
three-day hearing and, in a lengthy and detailed order, deter-
mined that Lee failed to carry his burden of establishing a
Sixth Amendment violation under the standard articulated in
Strickland v. Washington, 466 U.S. 668 (1984). We affirm.
I
A
The facts of this case have been exhaustively cataloged
through multiple rounds of postconviction litigation. See Peo-
ple v. Lee, 57 N.E.3d 686 (Ill. App. Ct. 2016); Lee v. Lamb, No.
11-cv-183, 2017 WL 5989775 (N.D. Ill. Dec. 4, 2017); Lee v. Kink,
922 F.3d 772 (7th Cir. 2019); Lee v. Galloway, 11-cv-183, 2023
WL 2241974 (N.D. Ill. Feb. 27, 2023). A summary suffices here.
In 1996 Anthony Lee was convicted of aggravated kidnap-
ping and aggravated sexual assault after a bench trial in Cook
County Circuit Court. The state’s primary witness, a woman
identified as L.M., testified that she encountered Lee and his
codefendant Burlmon Manley while walking alone down a
street in Calumet City, Illinois around 1:00 a.m. on April 15,
1995. According to L.M., Lee and Manley seized her, forced
her into their Cadillac, and proceeded to beat and rape her
repeatedly over the course of two hours.
To corroborate L.M.’s testimony, the state introduced
photographs of her severe injuries shortly after the incident.
The state also called Teresa Baragas, a Chicago resident who
recalled waking up at 3:00 a.m. on April 15 only to find L.M.
on her doorstep—naked, battered, and screaming that she
had just been raped.
Lee chose to testify in his own defense. He stated that L.M.
entered his car voluntarily to join Lee and Manley for drinks
and drove with them to a liquor lounge in Hammond,

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No. 23-1552 3
Indiana. Lee and Manley went inside to buy alcohol, leaving
L.M. alone with the keys to the car. After leaving the liquor
lounge, Lee testified that he, Manley, and L.M. made another
quick stop at L.M.’s house to drop off her CD player. They
later drove to Merrill Park in Chicago, where they drank and
smoked marijuana and cigarettes. L.M. extinguished a
cigarette on Lee’s car floor, prompting him to yell at her. A
brief physical fight ensued. Lee then exited the car and waited
outside. Meanwhile, Manley and L.M. engaged in what Lee
believed to be consensual sex in the back seat. When
Lee returned, L.M. lay naked and silent in the back. After Lee
dropped Manley off, L.M. hit Lee, exited without her clothing,
and shouted that he and Manley were “going to pay for this.”
Lee’s testimony differed notably from a written statement
he provided law enforcement shortly after his arrest. In that
statement—which the state read into evidence—Lee claimed
that he had stayed in the car with L.M. while Manley bought
alcohol, that Lee subsequently observed Manley and L.M.
having sex when Lee returned to his vehicle at Merrill Park,
that Lee offered cocaine to L.M. in exchange for oral sex, and
that L.M. hit him and stormed away after he accidentally
urinated in her mouth. Addressing these discrepancies, Lee
testified that law enforcement officers had typed the
statement themselves and instructed him to sign after reading
only “about four lines.”
The trial court found Lee guilty of five counts of aggra-
vated sexual assault (three as a perpetrator and two as an
accomplice to Manley) and one count of aggravated kidnap-
ping. The court explained that in its view “[t]he case [came]
down to credibility” and L.M. was simply more credible than

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4 No. 23-1552
Lee in light of the photographs documenting her injuries. The
court sentenced Lee to 100 years’ imprisonment.
B
In time Lee filed a motion for postconviction relief in the
state trial court, alleging ineffective assistance of counsel. He
argued that his attorney, Richard Friedman, had performed
inadequately by failing to interview several potential wit-
nesses who had volunteered to testify as defense witnesses.
That failure, Lee contended, deprived him of a critical oppor-
tunity to corroborate his testimony and may well have
changed the trial outcome.
Lee supported his motion with six affidavits that he
claimed Friedman had ignored. The first two came from
Byron and Gayland Massenburg, brothers who allegedly saw
a white woman enter a Cadillac driven by two men late at
night when their car broke down on the same block where Lee
encountered L.M. (L.M. was white.) The next, signed by
Charlene Parker, stated that Lee, Manley, and a third person
had spent time together at Dad’s Liquor Lounge in Hammond
on the night in question. In the fourth, Gaila Pinkston de-
scribed a phone call where Manley admitted that Lee was
“nowhere around” when he had sex with L.M. Even so,
Manley threatened to “take Anthony [Lee] down with him” if
he went “down on this case.” The fifth and sixth affidavits
both belonged to Phillip Elston, a friend of Lee’s who claimed
to have seen Lee sitting on a curb at Merrill Park while a man
and woman had sex in his car.
After reviewing the affidavits, the trial court denied Lee’s
ineffective-assistance claim, and the Illinois Appellate Court
affirmed. The appellate court reasoned that even if Friedman

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No. 23-1552 5
had neglected to interview the witnesses who submitted affi-
davits, that failure had not meaningfully hurt Lee’s defense.
The court emphasized that, given the strength of the state’s
case against Lee and the fact that no affidavit contradicted
L.M.’s account of the night in question, there was no “reason-
able probability” that testimony from the five witnesses
would have changed the outcome. The Illinois Supreme Court
declined review.
Lee then turned to federal court and sought relief under
28 U.S.C. § 2254. The district court denied his petition,
explaining that, although the decision of the Illinois Appellate
Court was “perhaps not the result this Court would reach on
a blank slate,” it was not so deficient as to be “contrary to, or
[] an unreasonable application of, clearly established Federal
law” or an “unreasonable determination of the facts in light
of the evidence”—the standard for granting a habeas petition
under § 2254(d). See Lee v. Lamb, No. 11-cv-183, 2017 WL
5989775, at *5 (N.D. Ill. Dec. 4, 2017).
We took a different view on appeal. See Lee v. Kink, 922
F.3d 772 (7th Cir. 2019). What troubled us was the fact that the
state court had based its prejudice analysis on the flawed as-
sumption that each witness would have merely “parroted
their affidavits and refused to say another word” if called to
testify. Id. at 774. In reality, we explained, the witnesses likely
would have elaborated upon their written statements, filling
in details in ways that could have strengthened Lee’s defense.
To assess the impact the witnesses might have had on
Lee’s trial, we determined that it was necessary to hear from
the witnesses themselves. Supplemental briefing revealed
that Lee had repeatedly requested an evidentiary hearing to
do just that. In the final analysis, then, we concluded that the

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6 No. 23-1552
state court’s denial of the hearing requests had prohibited Lee
from making the factual showing needed to demonstrate prej-
udice. This, we determined, had resulted in “a decision []
based on an unreasonable determination of the facts in light
of the evidence,” which justified relief under § 2254(d)(2). See
id. at 775. So we vacated and remanded to allow the district
court to hold an evidentiary hearing on Lee’s claim.
C
A three-day hearing followed in early 2020. The district
court received testimony from Lee, Friedman, multiple inves-
tigators, notaries, and two of the five affiant-witnesses: Byron
Massenburg and Gaila Pinkston. Two other witnesses,
Charlene Parker and Gayland Massenburg, had died in the
years following the trial. The fifth, Phillip Elston, could not be
located.
For his part, Lee testified that Friedman had
neglected his defense. Lee claimed that Friedman had rarely
visited him, refused to discuss trial strategy, and ignored mul-
tiple affidavits supplied by witnesses offering to testify in
Lee’s defense. Lee asserted that he had asked Friedman about
the affidavits several times only to hear Friedman dismiss
them because he was “too busy.” On the eve of trial, Friedman
allegedly instructed Lee “not to mention anything that was in
[an] affidavit or anything about the witnesses at all” while on
the stand because Friedman had not had the time to contact
the witnesses.
Friedman’s provided an altogether different account. He
explained that he and Lee had shared a “good working rela-
tionship” and discussed a wide variety of issues, including
whether to call witnesses. Friedman told the district court that

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No. 23-1552 7
his general practice “would have” been to try to contact po-
tential witnesses, especially after receiving affidavits in a
pending trial. At one point, Friedman was asked about a brief
pretrial hearing during which he requested a deadline exten-
sion to “meet with” “several witnesses who have contacted
me about testifying on behalf of Mr. Lee.” Although he did
not recall the hearing, Friedman insisted that he would not
have requested an extension to investigate witnesses without
actually doing so. And Friedman was most adamant that he
would not have neglected a potential witness because he was
too busy or instructed Lee to omit references to a witness to
cover up his failure to investigate.
At the same time, Friedman acknowledged that his
memory of Lee’s decades-old case was limited. He could not
remember, for example, whether he received affidavits from
the various witnesses. And, if he had, Friedman could not say
for certain whether he conducted follow-up interviews or oth-
erwise investigated potential witnesses.
Byron Massenburg also testified at the hearing. Massen-
burg stated that he did not recall ever speaking with
Friedman. Going further, Massenburg denied even writing
the affidavit that had been attributed to him and declared that
its contents were “not accurate.” He added that the signature
on the affidavit read “Brian” but his legal name, which he
used on all documents, was “Byron.” He also insisted that he
never saw the events described in the affidavit, that he had
“[n]o personal knowledge whatsoever” about the events lead-
ing to Lee’s arrest, and that, had he been called as a witness,
he would have testified that the affidavit was false.
Gaila Pinkston testified next. She confirmed that the sig-
nature on the affidavit was her own but did not remember

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8 No. 23-1552
signing it. Pinkston speculated that someone else must have
prepared the affidavit for her because she could not type well.
She also stated that she could not recall speaking with
Friedman about her affidavit. Nor did she have any memory
of the phone conversation with Manley that the affidavit
described.
After reviewing the evidence in the record, including the
new testimony from the 2020 evidentiary hearing, the district
court again denied Lee’s § 2254 petition. Applying the two-
pronged test articulated in Strickland v. Washington, the
district court concluded that Lee failed to establish that
Friedman’s performance fell below an objective standard of
professional competence. Alternatively, the district court con-
cluded that any errors Friedman might have committed did
not meaningfully compromise Lee’s defense given the
strength of the state’s case.
Lee now appeals.
II
Under 28 U.S.C. § 2254(d), we must affirm the state court’s
judgment unless it “was contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court” or was “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” We have
already held that the Illinois Appellate Court’s decision to
deny Lee’s request for postconviction relief without an
evidentiary hearing was “based on an unreasonable determi-
nation of the facts” and thus “lack[ed] the shelter of § 2254(d)
as a whole.” Kink, 922 F.3d at 775. Consistent with that deter-
mination, we conduct our own independent review of Lee’s

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No. 23-1552 9
ineffective-assistance claim without deference to the state
court. In doing so, we accept the district court’s factual find-
ings on remand unless “after reviewing the complete record,
we are left with the definite and firm conviction that a mistake
has been committed.” Holleman v. Cotton, 301 F.3d 737, 741–42
(7th Cir. 2002) (citation and internal quotation marks
omitted).
To establish a Sixth Amendment violation on the basis of
ineffective assistance, Lee bears a twofold burden. He must
demonstrate that Friedman’s performance as his trial counsel
“fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 668. He also must show “a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
A “reasonable probability” is one “sufficient to undermine
confidence in the outcome.” Id.
A
We have flexibility in how we approach these inquiries.
“[A] court need not determine whether counsel's perfor-
mance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies.” Id. at
697. Indeed, the Supreme Court has counseled that “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, … that course should be
followed.” Id. This guidance is especially applicable here.
After a careful and exhaustive review, the district court
concluded that the evidentiary record remained “too thin and
inconclusive” to determine whether Richard Friedman had in
fact interviewed or otherwise investigated the witnesses who
submitted affidavits. That finding finds ample support in the

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10 No. 23-1552
record. By the time of the evidentiary hearing—nearly
25 years after Lee’s trial—Lee’s case file could not be located,
Friedman’s recollections were understandably hazy, three of
the five witnesses were unavailable to testify, another had no
memory of whether she spoke with Friedman, and a fifth
denied writing an affidavit at all. These evidentiary uncer-
tainties make any assessment of Friedman’s performance
challenging and probably explain why, in the end, the district
court resolved this prong of the Strickland inquiry by indicat-
ing that, given the passage of time and Friedman’s credible
testimony contradicting Lee’s accusations, the evidence was
too indeterminate for Lee to carry his burden of demonstrat-
ing unreasonable performance.
While it is hard to find fault with district court’s approach,
it seems more prudent in the circumstances to proceed to
Strickland’s prejudice prong, as the analysis on that front is
open-and-shut.
B
As a threshold matter, Lee claims that he does not need to
establish prejudice. Citing the Supreme Court’s decision in
United States v. Cronic, 466 U.S. 648 (1984), Lee emphasizes
that prejudice under Strickland is presumed if the accused is
“denied counsel at a critical stage of his trial” or his counsel
“entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Id. at 659; see also Garza v. Idaho, 586 U.S.
232, 237 (2019). Lee insists that Friedman’s errors amounted
to a total failure to meaningfully contest the prosecution’s
case against him and a total absence during the critical pretrial
phase of his case, obviating any need for him to show
prejudice.

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No. 23-1552 11
We have little trouble rejecting this contention. Cronic
recognized a “narrow exception” to Strickland’s prejudice
requirement, see Florida v. Nixon, 543 U.S. 175, 190 (2004), that
applies in “circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular
case is unjustified,” Cronic, 466 U.S. at 658. The record falls
well short of permitting a conclusion that Friedman com-
pletely abandoned Lee, failed to conduct any pretrial investi-
gation, or neglected his duty to present a defense. See Patrasso
v. Nelson, 121 F.3d 297, 304–05 (7th Cir. 1997) (presuming
prejudice under Cronic where counsel “effectively abandoned
his client” at sentencing, “made no effort to contradict the
prosecution’s case or to seek out mitigating factors,” and
“barely spoke with his client and performed no investiga-
tion”). This is not a Cronic case: Lee must show prejudice
under Strickland.
C
Strickland requires that Lee establish a “reasonable proba-
bility” that the result of his trial would have been different
had Friedman not committed professional errors. See Strick-
land, 466 U.S. at 694. That probability must be high enough to
“undermine confidence in the outcome.” Id.
The record before us provides little indication that testi-
mony from some or all of the affiant-witnesses would have
had a meaningful impact on Lee’s case, much less
undermine our confidence in the verdict. At best, the addi-
tional testimony would have done nothing to counter the
evidence of L.M.’s severe injuries and hysterical behavior im-
mediately after the incident—evidence for which Lee never
provided a plausible explanation. At worst, additional testi-
mony from the witnesses may have ultimately weakened

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12 No. 23-1552
Lee’s defense by contradicting his testimony or their own
affidavits.
At a basic level, none of the affidavits provided an expla-
nation for the severity of L.M.’s injuries. Photographs intro-
duced into evidence depicted two black eyes, a black ear, bite
marks on her hand that left a scar, and deep and pervasive
bruising across L.M.’s face, head, back, and arms. Those
extensive injuries directly undermined Lee’s account of a brief
and momentary fight. The trial court emphasized this precise
inconsistency, identifying the photographs as a major reason
that it found L.M.’s testimony to be more credible than Lee’s.
The affidavits also did not address the testimony of Teresa
Baragas, who described finding L.M. naked outside her door
at 3:00 a.m., screaming that she had just been raped. This tes-
timony corroborated L.M.’s account—and undermined
Lee’s—by strongly suggesting that L.M. had fled Lee’s car in
a state of hysteria after being assaulted in traumatic fashion.
None of the affiants undermined or provided a plausible
counter-explanation for Baragas’s testimony.
Nor could any affidavit mend the contradictions between
Lee’s testimony and his prior written statement. Those con-
tradictions were significant. Indeed, they concerned issues as
foundational as whether Lee and L.M. engaged in a sexual act,
whether Lee stopped by L.M.’s house, why Lee fought with
L.M., and whether Lee observed Manley and L.M. having sex.
Smaller discrepancies also abounded, including the name of
the liquor lounge, the presence of cocaine, and whether Lee
left L.M. alone with his keys. Ultimately, no number of affida-
vits could have cured the damage to Lee’s credibility that
resulted from his multiple inconsistent statements.

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No. 23-1552 13
At an even more basic level, the record provides little basis
for us to be confident that the witnesses would have actually
testified in a manner consistent with their affidavits—or that
such testimony would have held up to scrutiny if they had.
At trial Lee never mentioned interacting with any of the wit-
nesses. Worse, he specified that the person he ran into at the
liquor lounge was a “Simon something,” not the affiant
Charlene Parker.
The district court found Lee’s contention that Friedman
directed him to censor his testimony to cover up his own fail-
ure to investigate to lack all credibility. We see no error in this
finding. To credit the accounts in the affidavits, therefore, the
district court would have had to find that Lee, a man on trial
facing life imprisonment, had five eyewitnesses who could
have corroborated his story but nonetheless either neglected
or decided not to mention them. Even more, the district court
would have had to believe that Lee affirmatively altered his
account to avoid any reference to an exculpatory witness. To
describe this hypothetical is to expose its absurdity. At the
end of the day, the stark inconsistency between the affidavits
and Lee’s own testimony defeats any notion that the latter
would have changed the course of Lee’s trial.
For at least one witness, we need not speculate on this
point. Byron Massenburg denied preparing, signing, or even
seeing the affidavit attributed to him, explaining that its
contents were false. Asked how he could be so certain,
Massenburg gave specific and convincing reasons. He testi-
fied that he would have never spent time on State Street that
late at night in 1995 because, as an African-American, his
presence might spark an incident. For that reason, he empha-
sized that there was no way he would have forgotten if his car

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14 No. 23-1552
had broken down in that area. The overt rejection of his sup-
posed affidavit suggests that calling Massenburg at trial as a
defense witness may well have materially harmed
—not helped—Lee’s case.
Our review of the record, including the additional evi-
dence developed by the district court on remand, leaves us
convinced that Lee fell well short of meeting his burden of
demonstrating prejudice under Strickland. See Harrington v.
Richter, 562 U.S. 86, 104 (2011) (“It is not enough to show that
the errors had some conceivable effect on the outcome of the
proceeding. Counsel’s errors must be so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”
(cleaned up)).
For these reasons, we AFFIRM.

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