English v. Romanowski

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0105p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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BILLY JOE ENGLISH,
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Petitioner-Appellee,
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No. 08-2611
v.
,
>
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Respondent-Appellant. -
KENNETH ROMANOWSKI,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-11552—Arthur J. Tarnow, District Judge.
Argued: March 11, 2010
Decided and Filed: April 15, 2010
Before: KENNEDY, MOORE, and SUTTON, Circuit Judges.

_________________

COUNSEL
ARGUED: Laura G. Moody, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellant. Todd A. Shanker, FEDERAL DEFENDER OFFICE, Detroit,
Michigan, for Appellee. ON BRIEF: Laura G. Moody, OFFICE OF THE ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Todd A. Shanker, James R. Gerometta,
FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellee.
KENNEDY, J., delivered the opinion of the court, in which SUTTON, J., joined.
MOORE, J. (p. 24), delivered a separate opinion concurring in part and dissenting in
part.
_________________

OPINION
_________________

KENNEDY, Circuit Judge. Respondent-Appellant Warden Kenneth
Romanowski appeals the district court’s decision to grant Petitioner-Appellee Billy
English conditional habeas relief. The district court found that English was entitled to

1
No. 08-2611 English v. Romanowski Page 2

habeas relief because his trial counsel rendered him ineffective assistance in violation
of the Sixth Amendment when he failed to call a witness after promising her to the jury,
or alternatively, when he failed to properly investigate the case. For the following
reasons, we REVERSE in part and AFFIRM in part the district court’s grant of habeas
relief to English based on his ineffective-assistance-of-counsel claims.

FACTUAL/PROCEDURAL BACKGROUND

On the night of April 28, 2002, a fight broke out between Petitioner-Appellee
Billy English and one Ronald Higdon in an apartment at 19 Clark Street (“Clark Street
apartment” or “apartment”) in Pontiac, Michigan. The fight resulted in Higdon
sustaining multiple stab wounds requiring an ambulance trip to the hospital and over 100
stitches. After a police investigation of the incident, the government charged English
with assault with intent to murder and carrying a concealed weapon. English pleaded
not guilty and proceeded to trial. At trial, the government and the defense presented
substantially different versions of the facts.

I. Prosecution’s Case

The prosecution’s theory of the case was that English committed an unprovoked
and violent attack on Higdon. Although the prosecution offered the testimony of
multiple witnesses to support its case,1 the witness testimony relevant to the issues
before this Court is that of Ronald Higdon, Daniel Lamont, and Kevin Whitehouse.

A. Ronald Higdon’s Testimony

Ronald Higdon testified that, in the months leading up to the attack, he had been
living at the Clark Street apartment with his then-girlfriend Lydia Ceruti,2 Lydia’s three

1
The government also solicited the testimony of 1) John Rayner, the paramedic who responded
to the fight; 2) Dr. Christina Campbell, the treating physician at the hospital to which Higdon was taken;
and 3) Christopher Giolitti, the police officer who responded to the scene after 911 was called.
2
Since the time of the attack and subsequent criminal trial, Lydia Ceruti has since married
Petitioner and now goes by Lydia English. However, to facilitate the recitation of the relevant facts, which
primarily took place before Lydia’s marriage to English, we refer to her by her maiden name.
No. 08-2611 English v. Romanowski Page 3

children,3 and one Daniel Lamont, a friend of Higdon who had moved into the apartment
when he did. However, on April 28, 2002, the date of the incident, Higdon and Ceurti
were no longer involved in an intimate relationship and Higdon was scheduled to move
out of the apartment on May 3, 2002. At this time, Higdon was aware not only that
Ceruti had recently become romantically involved with English, but also that English
was actually the father of Ceruti’s youngest child, Brice, who was conceived at a time
when Ceruti was cohabitating with Higdon.

At approximately 9:30 p.m., Higdon saw English, Ceruti, and Brice sitting in a
car in front of the Clark Street apartment.4 Higdon went up to the car and had a brief
conversation with Ceruti. Higdon then left for a period of time, at which point English,
Ceruti, and Brice entered the apartment. Later in the evening, Higdon returned to the
area and went up to the apartment. The apartment was the second-floor unit of a two-
unit, two-floor apartment building. Two doors needed to be unlocked in order to gain
access to the apartment in question. According to Higdon, he used a key to open the first
door, then used a standard household butter knife to “jimmy open” the second door.
According to Higdon, the lock to this second door was broken and always had to be
jimmied open. After Higdon opened these doors and entered the apartment, he noticed
that Ceruti and the three children were present along with English, who was sitting on
the edge of a pull-out sofa bed that had been opened in the middle of the family room.
Daniel Lamont was also present in the apartment at this time. According to Higdon, as
he entered the apartment, he immediately placed the butter knife he used to open the
second door on the entertainment center in the family room. He then went up to English
and started a conversation about the children. At the end of the conversation, Higdon
offered to shake hands. English originally refused but then agreed after Higdon asked
a second time. Higdon then turned his back to English and walked toward Ceruti, who
was standing at or near the door leading out of the apartment. Higdon began talking to

3
Ceruti’s children are named Amber, Cody, and Brice. At the time of the fight, their respective
ages were six, four, and two years.
4
Although it was not revealed during Higdon’s testimony, Ceruti had left the apartment earlier,
along with her son, Brice, after she and Higdon had an altercation in the apartment. See infra, at 10-11.
No. 08-2611 English v. Romanowski Page 4

Ceruti, apparently asking her to let him stay for a few extra days. During the
conversation, Higdon unexpectedly felt an extreme pain in his lower back that he
described as a burning and stinging sensation. He turned around and saw English
standing before him with a knife in his hand. Higdon testified that he then grabbed
English’s hand and threw English against the wall. Just as Higdon was about to get the
knife out of English’s hand, English pulled out another knife with his other hand and
started slashing at Higdon. Higdon was cut multiple times on his face and hands.
Higdon also testified that during the fight, English repeatedly said, “I’m going to kill
you.”

At some point during the altercation, Higdon became weak (apparently from
blood loss), released English and went into one of the bedrooms, slammed the door, and
leaned his body against the door so that English could not enter the room. Higdon then
used a cell phone to call 911. Higdon testified that while he was waiting for the police
to arrive, he could hear English on the other side of the door, yelling that “if I open the
door or if I come out out of that room, that he’s going to give me some more of what I
just got . . . that this time he’s going to kill me.” An ambulance eventually arrived, and
Higdon was taken to a nearby hospital for treatment.5

B. Daniel Lamont’s Testimony

Daniel Lamont, who is legally deaf and testified with the aid of a qualified sign
language interpreter, essentially corroborated Higdon’s testimony. Lamont, a friend of
Higdon, was also living in the Clark Street apartment in April 2002 and was present at
the apartment when the fight occurred. Lamont testified that Higdon had been at the
apartment earlier in the day but had left for a period of time in the evening. While he
was gone, the police came to the apartment with Ceruti in search of Higdon but left when
they determined that he was not there. Some time after the police had left, Higdon
returned to the apartment and noticed English sitting on the pull-out bed. Higdon

5
Higdon’s treating doctor at the hospital later testified at trial that Higdon lost a substantial
amount of blood, was treated with over 100 stitches, and would have died had he not been treated
promptly.
No. 08-2611 English v. Romanowski Page 5

approached English and had a brief conversation with him. Higdon then turned, walked
to Ceruti, and began asking if he could stay for a few extra days.6 Higdon had his hands
in his pockets during this conversation. According to Lamont, Higdon did not have a
knife on his person. Eventually, English got up, walked over to Higdon, and stabbed
him with a knife.7 Higdon and English then struggled over the knife before English
pulled another knife and slashed at Higdon with it. Higdon then escaped to a bedroom,
and English stood outside the room, telling Higdon to come out of the room so that they
could continue to fight.

Lamont also testified that while Higdon was in the bedroom, English and Ceruti
had a brief conversation that ended in Ceruti grabbing a knife from the kitchen and
throwing it on the floor near the bedroom where Higdon was hiding. Lamont also
claimed that he received threats from both Ceruti and English before trial about his
testimony. At the preliminary examination, Lamont testified that Ceruti asked him to
change his story. At the trial, Lamont testified that two days after the preliminary
examination, Ceruti and English both approached Lamont, accused him of allowing
Higdon into the apartment on the night of the fight, attempted to take his keys, and
pushed and shoved him. According to Lamont, English eventually said that Lamont was
“not worth it” and let him go.

C. Kevin Whitehouse’s Testimony

Kevin Whitehouse, the third damaging prosecution witness, was Higdon’s
brother-in-law.8 Whitehouse was not a witness to the attack. Rather, he testified that
he had received a phone call from English some time after the attack, in which English
told Whitehouse that he “wish[ed] he would have killed the son of a bitch.” Whitehouse
also testified that he received threats from Ceruti regarding his expected testimony at

6
Although Lamont is deaf, he testified that he could read lips. In fact, at the preliminary hearing,
Lamont testified without the aid of an interpreter by reading the lips of the attorneys.
7
Although Higdon testified that he was stabbed the first time in the back, Lamont testified that
Higdon was struck first in the back of the head.
8
Whitehouse was married to Higdon’s sister. However, some time after English’s trial,
Whitehouse and Higdon’s sister were divorced.
No. 08-2611 English v. Romanowski Page 6

trial. He claimed that he received at least thirteen phone calls from Ceruti, which
included threats that she would send her people to his house, presumably to harm him.

II. Defense’s Case

The defense’s theory of the case was self-defense, and it attempted to present a
version of the facts consistent with that theory. In his opening statement, defense
counsel stated to the jury that it would hear from Lydia Ceruti, who would testify that
Higdon was attempting to hit her when English attacked him. However, when the
defense actually presented its case, defense counsel did not call Ceruti as a witness.
Instead, English’s attorney opted to call only Billy English himself.

A. Billy English’s Testimony

English testified that at around 5:00 p.m. on April 28, 2002, Ceruti came to his
house with her son, Brice, and asked to use English’s cell phone to call the police. After
she called the police, English, Ceruti, and Brice drove back to the Clark Street apartment
and waited in Ceruti’s car for the police to arrive. While they were waiting, they saw
Higdon twice. The first time, Higdon walked up to the driver side where Ceruti was
sitting and asked to talk to her. When she refused, he left. Later, Higdon came back to
the car and asked English to roll down the window so that Higdon could speak to him.
When he refused, Higdon threatened to “bust . . . out” the window. English still refused,
and Higdon eventually left and went back to the apartment. The police eventually9
arrived and escorted Ceruti upstairs to her apartment. After searching the house and
finding that Higdon was no longer there, the police left. Ceruti then came back to the
car and took English and Brice upstairs to the apartment. Later that night, Higdon
entered the apartment unannounced. Higdon walked up to English and initiated a heated
conversation in which Higdon said that English was “lucky [Higdon] don’t kill [his]
little ass right now.” He also told English to take care of Higdon’s house and Higdon’s
kids. Higdon then turned around and walked over to Ceruti. As Higdon was talking to

9
English testified that he and Ceruti had to call the police five times before officers arrived on
scene.
No. 08-2611 English v. Romanowski Page 7

her, English saw Higdon pull his hand back as if he was going to hit Ceruti. English
then got up to defend Ceruti. As English approached, he saw Higdon reach behind his
belt and pull out a knife. English then pulled out a knife of his own and stuck it in
Higdon’s back. The men then began fighting with each other, and at some point English
pulled out a second knife. Higdon eventually withdrew into the apartment and hid in one
of the bedrooms. English admitted that he stood by the door of the bedroom and
threatened Higdon with more harm if he came out of that room.

III. Verdict

After hearing closing arguments from the government and the defense, the jury
deliberated and convicted English of both counts. English was sentenced to concurrent
sentences of eleven years eight months to thirty years in prison for the assault conviction
and two to five years in prison for the weapons conviction.

IV. Post-Trial Proceedings

Following trial, conviction, and sentencing, English filed a motion for new trial
and evidentiary hearing in state court pursuant to People v. Ginther, 390 Mich. 436
(1973). English made several claims, including that his attorney provided ineffective
assistance of counsel for failing to call Ceruti as a witness and for failing to properly
investigate the case. In support of these claims, English submitted an affidavit from
Ceruti indicating that she had been prepared to testify on behalf of English at trial and
would have corroborated his version of the facts. Nevertheless, on August 6, 2003, the
trial court denied Defendant’s motion.

English then appealed to the Michigan Court of Appeals, raising the same
ineffective-assistance-of-counsel claims. On June 10, 2004, the Michigan Court of
Appeals affirmed the convictions and denied English’s appeal. People v. English, No.
247354, 2004 WL 1292789 (Mich. Ct. App. June 10, 2004). In so ruling, it stated the
following:

Defendant says that his trial counsel’s performance was deficient because
he did not call Ceruti despite the fact that during his opening statement,
No. 08-2611 English v. Romanowski Page 8

he stated that he would call Ceruti, who would testify that Higdon broke
into the apartment, pulled a knife and threatened her, that defendant
pulled a knife in response, and that defendant stabbed Higdon in self
defense. Trial counsel’s “failure to call witnesses is presumed to be trial
strategy.” People v. Mitchell, 454 Mich. 145, 163; 560 NW2d 600
(1997), citing Strickland v. Washington, 466 U.S. 668; 104 S Ct 2052; 80
L.Ed.2d 674 (1984); Ginther, supra. We agree with the trial court that
this testimony is cumulative to defendant’s own testimony. Here, the
victim, Higdon, testified that defendant attacked him and Lamont’s
testimony corroborated Higdon’s. Furthermore, Lamont testified that
after Higdon escaped from defendant, Ceruti placed a knife on the floor
near the bedroom in which Higdon hid. Lamont also testified that prior
to defendant’s preliminary examination, Ceruti asked Lamont to change
his story. He further testified that defendant and Ceruti approached him,
and accused him of letting Higdon into the apartment. Higdon’s brother-
in-law, Kevin Whitehouse, testified that defendant told him that he
“wished he had killed the son of a bitch [referring to Higdon],” and that
Ceruti asked Whitehouse to lie, and threatened him and his family.
Defendant himself admitted, while testifying in his own defense, that he
was carrying the concealed knives, that Higdon had not hit defendant or
Ceruti, and that defendant could easily have walked away from Higdon
after he and defendant finished their conversation and Higdon turned to
walk away. Defendant also admitted to stabbing Higdon several times.
Because of the testimony given by Lamont and Whitehouse, we conclude
that trial counsel likely made the decision not to call Ceruti as a witness
for strategic reasons. Defendant argues that he was forced to testify
because of counsel’s failure to call Ceruti. Defendant claims that Ceruti’s
testimony was not cumulative to his but rather, was testimony of a
“neutral” witness, which would have relieved him of the necessity of
testifying. However, we reject defendant’s argument that Ceruti was an
unbiased, neutral witness. We find this argument less than persuasive
given Ceruti’s failed relationship with Higdon precipitated by her
romantic relationship with defendant, together with Lamont’s and
Whitehouse’s testimony of Ceruti’s conduct toward them. Accordingly,
we hold that defendant has failed to rebut the presumption that trial
counsel’s decision not to call Ceruti as a witness was sound trial strategy,
that defendant has overcome [sic] “strong presumption” that the
performance of his trial counsel was sufficient, and that the trial court did
not err when it denied defendant’s motion for new trial and/or a Ginther
hearing. Sabin (On Second Remand), supra.

Id. at *2. On February 28, 2005, the Michigan Supreme Court denied English’s
application for leave to appeal the decision of the Michigan Court of Appeals. People
v. English, 472 Mich. 866 (2005).
No. 08-2611 English v. Romanowski Page 9

On March 31, 2006, English then filed a federal habeas petition alleging the same
ineffective-assistance-of-counsel claims, as well as several other independent grounds
for relief. The district court appointed English counsel and eventually held an
evidentiary hearing to evaluate the merit of English’s claims.

A. Evidentiary Hearing

At the March 13, 2008 evidentiary hearing, four persons testified: Billy English,
Lydia Ceruti, Elias Escobedo (English’s trial attorney), and Kenneth Frazee (the
prosecutor who tried the case).

1) Billy English’s Testimony

English testified that he met his attorney a few times before trial to discuss his
case and the trial strategy they would follow. According to English, he provided his
attorney at one point with the names of three potential witnesses, including Lydia Ceruti,
whose testimony would be beneficial to the defense. English claimed that his attorney
told him that he would definitely call Ceruti to testify at trial. It was not until after the
defense rested its case that English realized his attorney would not call Ceruti after all.
He claimed that his attorney never made any mention of why he did not call Ceruti to
testify.

2) Lydia Ceruti’s Testimony

Lydia Ceruti testified about her recollection of the April 28, 2002 attack, as well
as the events leading up to the attack. Ceruti testified that she was the sole lessee named
on the rental agreement for the Clark Street apartment. Two or three months before the
April 28 incident, Ceruti had ended her relationship with Higdon. Higdon had moved
out and Ceruti retained custody of the children, but Higdon did come to the apartment
from time to time to talk to Ceruti and see his children.

Ceruti testified that on the day of the incident, Higdon came over to the
apartment asking to see his children, and Ceruti let him in. After a period of time, Ceruti
asked Higdon to leave, but he refused. Higdon asked if he could stay at the Clark Street
No. 08-2611 English v. Romanowski Page 10

apartment a few extra days because he had nowhere else to go, but Ceruti denied his
request. Higdon then grabbed Ceruti by the arm, took her into the bathroom, made her
take off all of her clothes, and then told her, “Look at you, you’re fat, you’re ugly,
nobody is going to want you, no one is going to want these kids.” Ceruti was eventually
able to put her clothes back on and then leave the apartment with her son, Brice. Ceruti
lied to Higdon and told him that she was taking Brice over to her mother’s house. She
did this because “[o]therwise, he would not have let me out.” Upon leaving the
apartment, she instead went to English’s home and asked to use his cell phone to call
911. According to Ceruti, she called 911 because she was “very afraid” of Higdon due
to his propensity for violence.10 After calling 911, Ceruti, English, and Brice went back
to the apartment and waited in Ceruti’s car for the police to arrive.

Before the police arrived, Higdon came out and approached the car on two
separate occasions, making threats to Ceruti and English. At one point, he specifically
threatened to break in the windows if they did not unlock the doors and talk to him.
Ceruti called the police four additional times before they finally arrived. The police then
escorted Ceruti into the apartment and searched for Higdon, who had apparently left the
apartment with Ceruti’s cell phone, which she had left somewhere in the apartment. The
police told Ceruti to call back if Higdon returned, and then they left the scene.

Ceruti came back down to the car and escorted English and Brice up to the
apartment. About an hour and a half after the police left, Higdon reappeared at the
apartment building and forced his way into the apartment in order to “have a few words
with Billy.” After speaking to English, Higdon turned and approached Ceruti, again
asking her if he could stay a few extra days. She again refused, but while doing so she
saw her cell phone in one of Higdon’s pockets and attempted to reach for it. Higdon,
who was “very agitated,” then lifted his hand as if he were going to hit her. Instead of

10
At the hearing, Ceruti also provided detailed testimony about Higdon’s history of physical and
emotional abuse towards her, as well as his regular drug use. She also testified that English knew about
the drug use and Higdon’s abusive behavior, both because Ceruti had told English about the abuse and also
because he had seen Ceruti on several occasions with bruises on her face and body. However, during the
trial, the presiding judge made a ruling, based on the Michigan Rules of Evidence, prohibiting admission
of Higdon’s history of violence. Notwithstanding that ruling, the court ruled that any abuse by Higdon on
the day of the incident was admissible.
No. 08-2611 English v. Romanowski Page 11

hitting her, he grabbed Ceruti by the arm and pulled her into the hallway. English then
stood up and approached Higdon. While English approached, Higdon pulled out a “long
kitchen knife” that he had concealed “behind his back some place.” Higdon and English
then began fighting. According to Ceruti, Higdon was trying to cut English and also
throw him over the bannister in the hallway. At some point, English also produced two
knives which he used during the fight. After “a little while,” Higdon ran into one of the
bedrooms and called the police using Ceruti’s cell phone. According to Ceruti, English
never threatened to kill Higdon during the incident.

Ceruti denied ever placing a knife in the hallway near the bedroom in which
Higdon hid. She also denied trying to intimidate or influence Daniel Lamont’s
testimony. She instead claimed that she had asked Lamont to move out of the apartment
because he had left a crack pipe under or near the couch and within reach of Ceruti’s
children. Lamont, who was drunk at the time, violently grabbed Ceruti’s hand and
forced her to give him back the key to the apartment. At some point after this encounter,
Ceruti called the police and reported the incident. At the evidentiary hearing, English’s
new appointed attorney submitted as evidence a police report which charged Lamont
with assault and battery and noted Ceruti’s injury from the attack, which included
redness and swelling to her right wrist.

Ceruti also denied threatening or offering sexual favors to Kevin Whitehouse.
In fact, she claimed that Whitehouse had revealed to her that he wanted English put in
jail so that he could have a relationship with her. According to Ceruti, Whitehouse
called her on several occasions trying to initiate a relationship, which she refused.

3) Defense Counsel’s Testimony

English’s trial attorney, Elias Escobedo, testified at the evidentiary hearing as to
his reasons for not offering Ceruti as a witness. Escobedo provided several reasons as
to why he chose not to call Ceruti. First, he was concerned about the threats of violence
Ceruti had allegedly made to Lamont and Whitehouse:
No. 08-2611 English v. Romanowski Page 12

During the course of the trial, there was testimony that was being elicited
by a Daniel Lamont. . . . During the course of the trial, Mr. Lamont – the
prosecution was questioning him on direct-examination, and Mr. Lamont
was going to, at least based on my impression of his testimony at the
time, was going to talk about Ms. Ceruti threatening him and – I don’t
want to say assaulted him, but she was threatening him if he testified. . . .
The threats were basically that if [Whitehouse] testified – my
interpretation of what he was saying, was that he was going to be injured
or that he would be hurt. That Ms. Ceruti was going to send individuals
to his home or residence, and that these individuals would hurt him,
injure him if he were to testify. . . . My expectation was that if [Ceruti]
were called as a witness, there would be testimony that came in, first of
all, about the threats that she had made toward Mr. Lamont, as well as –
. . . [Whitehouse].

Escobedo also claimed that he did not learn about Ceruti’s threats made to Whitehouse
until the day of or the day before Whitehouse testified at trial; the transcript does not
reflect when he learned of Ceruti’s threats toward Lamont.

Second, Escobedo was concerned that Ceruti allegedly offered sexual favors to
Whitehouse in return for him changing his testimony. According to Escobedo, “my
recollection is he also said that she had offered to have sex with him.”11 Third,
Escobedo testified that he was concerned that Ceruti would lie if he allowed her to
testify. “[M]y concern was that there would be perjured testimony presented to the
Court.” Later in the hearing, when asked directly by the district court why he thought
Ceruti would commit perjury, Escobedo stated that it was simply based on his
experience as a lawyer, as well as “her discussions with me about the events in question
and about the threats to the witnesses . . . . I started questioning her, because I became
concerned with respect to what was going on outside of the meetings that I was having
with her and Billy English with respect to the trial preparation, that I was not aware of
. . . .” Escobedo claimed that he did not learn of this problem until after the start of trial,
and that he never would have mentioned Ceruti in his opening statement if he had known
about it.

11
Although Escobedo made this claim, there is no indication in the trial transcripts that this was
presented to the jury.
No. 08-2611 English v. Romanowski Page 13

Finally, Escobedo testified that he was concerned about Lamont’s testimony that
Ceruti had “planted” a knife by the door of the bedroom where Higdon had hid after the
fight. Besides the alleged threats of violence toward Whitehouse, Escobedo was never
directly asked when he learned about each potential problem with Ceruti’s testimony that
concerned him. Escobedo did admit, however, that he had not talked to anyone other
than English and Ceruti about the case outside of any discussions in the courthouse
during the trial.

4) Prosecutor’s Testimony

The prosecuting attorney at trial, Kenneth Frazee, also testified at the evidentiary
hearing regarding the alleged threats made by Ceruti to witnesses. Frazee testified that
Lamont had been threatened by Ceruti as early as a day or two after the April 28 assault
took place. He also testified about the threats made to Whitehouse, claiming that they
did not occur until after the opening statements in the trial were made. Frazee said that
he was not told about the threats until the day Whitehouse was scheduled to testify, and
that Frazee told Escobedo about the alleged threats as soon as he was made aware of
them himself. Frazee also testified that, had Ceruti testified at trial, he would have
brought up these issues during cross-examination in order to impeach her. Frazee did
admit, however, that no charges were ever filed against English or Ceruti for the alleged
witness tampering.

B. District Court Decision

On December 9, 2008, the district court conditionally granted English’s petition
for habeas relief. English v. Romanowski, 589 F. Supp. 2d 893 (E.D. Mich. 2008). The
court found that English’s attorney provided ineffective assistance of counsel in
violation of the Sixth Amendment both by failing to call Ceruti as a witness and by
failing to investigate and prepare the case properly. With respect to counsel’s failure to
call Ceruti, the court noted that Ceruti’s testimony was not cumulative because she was
the only person who would have corroborated English’s version of the events. Id. at
899. Moreover, the court rejected the state court’s finding that this was a sound trial
strategy. According to the district court, defense counsel was deficient in allowing the
No. 08-2611 English v. Romanowski Page 14

damaging testimony regarding Ceruti into evidence without calling Ceruti as a witness
to refute it. Id. at 900. The court also found that the unreasonableness of counsel’s
failure call Ceruti was “exacerbated” by the fact that he promised Ceruti’s testimony to
the jury in his opening statement. Id. at 901. After finding deficiency in Escobedo’s
performance, the court then found that the performance prejudiced English because
Ceruti’s testimony (or, in the alternative, Escobedo’s unfulfilled promise) likely could
have tipped the scales for at least one juror. Id. at 902.

With respect to Escobedo’s alleged failure to investigate, the district court found
that the final state court decision considered this claim as merely a restatement of
English’s claim that counsel was ineffective for failing to call Ceruti as a witness. Id.
at 903. The district court then found that habeas relief was warranted for this claim for
the same reasons as those stated above. Id. The court also noted that if Escobedo had
fully investigated the case beforehand, he would have been able to properly evaluate
Ceruti as a witness before promising her testimony to the jury. Id.

The court denied English’s other claims for relief. English does not cross-appeal
those rulings.

ANALYSIS

When analyzing the district court’s conditional grant of habeas relief for two of
English’s ineffective-assistance-of-counsel claims, we review the court’s legal
conclusions de novo and its factual findings for clear error. Towns v. Smith, 395 F.3d
251, 257 (6th Cir. 2005). To the extent that the state court reached English’s
ineffectiveness claims, the deferential standard of review set forth in section 2254(d) of
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies here.
AEDPA limits our review in the following way:

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim-
1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
No. 08-2611 English v. Romanowski Page 15

Federal law, as determined by the Supreme Court of the
United States; or
2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). The Supreme Court has explained that a state court decision
is “contrary to” Supreme Court precedent “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law” or “if the state
court confronts facts that are materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to” the result reached by the Supreme Court
in that case. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an
“unreasonable application” of existing Supreme Court precedent “if the state court
identifies the correct governing legal rule from [the Supreme] Court’s cases, but
unreasonably applies it to the facts of the particular . . . case” or “if the state court either
unreasonably extends a legal principle from [the Supreme Court’s] precedent to a new
context where it should not apply or unreasonably refuses to extend that principle to a
new context where it should apply.” Id. at 407. “[A]lthough ‘clearly established federal
law’ . . . simply ‘refers to the holdings’ of the Supreme Court, courts may look to the
lower courts of appeals’ decisions to inform the analysis of Supreme Court holdings in
determining whether a legal principle has been clearly established by the Supreme
Court.” Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009) (citing Hereford v.
Warren, 536 F.3d 523, 528 (6th Cir. 2008)).

To prevail on his ineffective-assistance-of-counsel claim, English must show that
the Michigan Court of Appeals’ denial of his claims were contrary to, or an unreasonable
application of, the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668
(1984). Under Strickland, counsel’s assistance is only constitutionally ineffective if it
is both deficient and prejudicial. Id. at 687. The Court in Strickland explained:

First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
No. 08-2611 English v. Romanowski Page 16

performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.

Id. Strickland’s deficiency prong requires proof that defense counsel’s trial attorney’s
representation “fell below an objective standard of reasonableness.” Id. at 688. When
evaluating trial performance, a reviewing court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged conduct might be considered sound trial strategy.” Id. at 689. Under
Strickland’s prejudice prong, a defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of [the trial] would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.

“[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.” Id. at 690. However, even when
making strategic decisions, counsel’s conduct must be reasonable. Roe v. Flores-Ortega,
528 U.S. 470, 481 (2000). “[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words, counsel has a duty
to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 690-91. The focus in failure-to-
investigate claims, then, is the reasonableness of the investigation (or lack thereof). See
Wiggins v. Smith, 539 U.S. 510, 527 (2003) (focusing on reasonableness of investigation,
rather than underlying decision, in context of failure to investigate mitigating evidence
for capital sentencing hearing).

I. Defense Counsel’s Failure to Call Lydia Ceruti as a Witness

With respect to the claim that English’s trial attorney was ineffective for failing
to call Ceruti as a witness, we hold that the district court erred when it granted English
habeas relief. To the extent that English’s claim here revolves around defense counsel’s
No. 08-2611 English v. Romanowski Page 17

ultimate decision not to call Ceruti, we must limit our review (of this claim) to the actual
decision not to call her as a witness. Although there were several good reasons to call
Ceruti to the witness stand under the circumstances, we cannot say that it was an
unreasonable application of Strickland for the state court to find that English failed to
rebut the presumption of reasonableness with respect to his attorney’s decision here. In
its decision denying post-conviction relief, the Michigan Court of Appeals seemingly
provided two grounds for its finding. First, it stated that it “agree[d] with the trial court
that [Ceruti’s] testimony is cumulative to defendant’s own testimony.” English, 2004
WL 1292789, at *2. Second, the court held that the decision was a reasonable trial
strategy in light of the fact that 1) Ceruti was not a neutral witness because of her
involvement with English and past history with Higdon, and 2) the elicited testimony of
Lamont and Whitehouse regarding Ceruti’s threats that made her an unattractive choice
as a defense witness. Id.

We disagree with the state court’s first justification for its ruling; Ceruti’s
testimony can hardly be considered cumulative to English’s testimony. Arguably,
whether the witness’s testimony would have been cumulative goes to prejudice under
Strickland, not deficiency. But even assuming arguendo that cumulativeness can inform
the deficiency analysis, the state court’s argument is still contrary to the facts in the
record. Although it is true that Ceruti would merely have corroborated English’s version
of events, the court failed to recognize that the trial was essentially a swearing match,
with the prosecution offering the eyewitness testimony of the victim and Daniel Lamont
in opposition to English’s testimony. Undoubtedly, the testimony of a second person to
corroborate the Defendant’s version of the events would not have been cumulative, but
rather could have critically added to the strength of the defense’s case. See, e.g.,
Bigelow v. Williams, 367 F.3d 562, 574-75 (6th Cir. 2004) (finding multiple alibi
witnesses not cumulative to defense despite fact that one other witness already testified
to same facts); see also Washington v. Smith, 219 F.3d 620, 634 (7th Cir. 2000)
(“Evidence is cumulative when it ‘supports a fact established by existing evidence,’
BLACK’S LAW DICTIONARY 577 (7th ed. 1999), but Washington’s whereabouts on
the day of the robbery was far from established-it was the issue in the case.”).
No. 08-2611 English v. Romanowski Page 18

The court’s second rationale on its own, however, is a reasonable application of
Strickland. The court noted three significant problems with Ceruti testifying at trial.
First, there was testimony at trial that Ceruti tried to influence Lamont’s testimony by
threatening him with harm if he did not change his story. English, 2004 WL 1292789,
at *2. Second, there was testimony at trial that Ceruti tried to influence Kevin
Whitehouse’s testimony, including the allegation that she threatened to send someone
to his home to harm him. Id. Finally, the court noted that Ceruti would have been
subject to substantial impeachment “given Ceruti’s failed relationship with Higdon
precipitated by her romantic relationship with defendant.” Id. It is a reasonable trial
strategy to conclude that these circumstances made Ceruti a bad witness, and that it
would consequently be a bad idea for the defense to associate with this witness by
having her testify on its behalf. Accordingly, the state court’s decision was a reasonable
application of Strickland.

Indeed, contrary to the district court’s opinion, we think that this conclusion is
confirmed by counsel’s testimony at the evidentiary hearing. At the hearing, defense
counsel provided four distinct reasons for his decision not to call Ceruti as a witness:
1) Lamont’s testimony about Ceruti’s threats; 2) Whitehouse’s testimony about Ceruti’s
threats; 3) Lamont’s testimony that Ceruti planted a knife near Higdon; and 4) counsel’s
suspicion at trial that Ceruti’s story was manufactured and that she would commit
perjury if she testified. As noted above, the testimony regarding the threats provides a
reasonable basis for counsel’s election not to call Ceruti to the witness stand. The
remaining rationales provide yet additional bases for finding that it was a reasonable trial
strategy not to associate with this witness any more than necessary and to instead rely
solely on the testimony of English, whose credibility had not been called into question
like Ceruti.

The district court makes much of the fact that many, if not all, of the potential
issues with Ceruti’s testimony could have been identified by English’s attorney before
trial commenced and before he promised Ceruti as a witness. But the attorney’s failure
to investigate is a separate habeas claim, one that is discussed below and should not
No. 08-2611 English v. Romanowski Page 19

affect the analysis of whether the ultimate decision not to call Ceruti was within the wide
range of reasonable and adequate professional assistance. The district court also refers
to the fact that the adverse testimony regarding Ceruti’s alleged threats had already been
received by the jury and was likely prejudicing English. According to the court, the only
reasonable thing to do once this testimony came out was to have Ceruti testify
notwithstanding the risks in order to refute the adverse testimony. While we do not
disagree with the district court’s position, we note that our concern is not to decide,
using hindsight, what we think would have been the best approach at trial. Instead, we
must only consider if the approach ultimately taken was within “the wide range of
reasonable professional assistance” given the circumstances. Strickland, 466 U.S. at
689. For the aforementioned reasons, we think that it was.

II. Defense Counsel’s Failure to Properly Investigate

A. Deficiency

Although defense counsel’s ultimate decision not to call Ceruti was not an
unreasonable trial strategy, we hold that counsel’s failure to adequately investigate that
decision before trial was deficient performance sufficient to satisfy the first prong of the
Strickland test. As a preliminary note, the state court of appeals did not separately
address this specific issue and instead stated that it was merely a “reiterat[ion of
English’s] argument that trial counsel erred in not calling Ceruti as a witness.” English,
2004 WL 1292789, at *2 n.3. We find this issue to be distinct (albeit related) from the
failure to call Ceruti as a witness and thus afford no deference to the state court opinion
as to this issue. But even if we were to impute the state court’s analysis of the decision
not to call Ceruti to this issue and then apply AEDPA deference, we would still find that
English can satisfy the deficiency prong for this claim. For it was objectively
unreasonable for English’s trial attorney to decide before trial to call Ceruti as a witness,
make that promise to the jury, and then later abandon that strategy, all without having
fully investigated Ceruti and her story prior to opening statements. This is not a case
where counsel simply failed to pursue a potential witness whose testimony could have
significantly benefitted his client. Here, counsel was actually prepared to call Ceruti as
No. 08-2611 English v. Romanowski Page 20

a witness. The deficiency instead was in English’s attorney being “‘ill equipped to
assess [Ceruti’s] credibility or persuasiveness as a witness,’ or to evaluate and weigh the
risks and benefits of putting [her] on the stand” at the time when he made the decisions
affecting his trial strategy. See Towns, 395 F.3d at 260 (quoting Bryant v. Scott, 28 F.3d
1411, 1419 (5th Cir. 1994)). To the extent that counsel was in fact concerned about the
aforementioned problems with Ceruti’s putative testimony, he could have and should
have discovered those problems before trial and then evaluated them before he decided
whether or not to call (or even promise) the witness at trial. Conducting a simple pre-
trial interview of the other expected witnesses in the case would have exposed at least
some of the witness-tampering allegations and would also have allowed English’s
attorney to test Ceruti’s story to see if she was being truthful. See id. at 258 (noting that
the duty to investigate “includes the obligation to investigate all witnesses who may have
information concerning his or her client’s guilt or innocence”). Yet English’s attorney
admitted that he failed to interview any of the witnesses outside of the courthouse or
prior to trial. Counsel could not have developed a reasonable trial strategy since he
based his decisionmaking on “what counsel guess[ed the witnesses] might say in the
absence of a full investigation,” and not “on what investigation reveals witnesses will
actually testify to.” Ramonez v. Berghuis, 490 F.3d 482, 489 (6th Cir. 2007).

Nor could counsel have made a “reasoned professional judgment that such
investigation was unnecessary.” Towns, 395 F.3d at 260; see also Strickland, 466 U.S.
at 691 (noting that counsel must at least “make a reasonable decision that makes
particular investigations unnecessary”). Counsel simply had no reason to believe that
an investigation was unnecessary, and he owed a duty at least to investigate other
witnesses to see what they would claim at trial. Towns, 395 F.3d at 258. Such an
investigation here would have uncovered before trial exactly what counsel later relied
upon during trial to make his ultimate decision not to call Ceruti.12 Furthermore, a

12
The record does seem to suggest that the threats made by Ceruti toward Whitehouse did not
occur until after the commencement of trial. However, defense counsel never claimed that he knew about
the other problems with Ceruti and then changed his mind only after he learned of the threats she made
to Whitehouse. A different outcome might be appropriate under such circumstances, but that case is not
before this Court.
No. 08-2611 English v. Romanowski Page 21

simple review of the preliminary hearing transcript would have revealed the majority of
concerns on which counsel later based his decision. The transcript includes the very
testimony of Lamont that calls into question Ceruti’s story, and it includes Lamont’s
version of the threats Ceruti allegedly made as well as the allegation that she planted the
knife. By failing to make these simple investigations before trial, counsel violated his
duty to investigate and was thus objectively unreasonable in his performance.

B. Prejudice

Having found that counsel’s performance was deficient, we proceed to the
second Strickland prong to determine whether the deficient performance prejudiced
English. The Michigan Court of Appeals never reached this part of the analysis;
consequently, we consider it de novo. See, e.g., Rompilla v. Beard, 545 U.S. 374, 390
(2005) (“Because the state courts found the representation adequate, they never reached
the issue of prejudice . . . and so we examine this element of the Strickland claim de
novo . . . .”). Based on our review of the record, we agree with the district court that but
for counsel’s ineffectiveness, there is a reasonable probability that the outcome would
have been different. As defense counsel himself noted at the evidentiary hearing, had
he learned of Ceruti’s problems as a witness before trial, he never would have promised
Ceruti in his opening statement. There were at least three probable consequences of that
decision that prejudiced defendant. First, the unfulfilled promise created a negative
inference against English generally. As the First Circuit has noted, “little is more
damaging than to fail to produce important evidence that had been promised in an
opening.” Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988). The jury in this case
must have wondered what happened to Ceruti after she was promised as a corroborating
witness for English’s story, and the jury may well have counted this unfulfilled promise
against English and his attorney. See United States ex rel. Hampton v. Leibach, 347 F.3d
219, 259 (7th Cir. 2003) (finding unfulfilled promise by defense counsel in opening
caused prejudicial negative inference as to defendant and defense counsel’s credibility).
Second, counsel’s deficiency likely caused a negative inference against English’s own
testimony. English’s theory of the incident was the very same version of events that the
No. 08-2611 English v. Romanowski Page 22

jury was told would be corroborated by Ceruti but never received. Thus, any negative
inference would also have specifically damaged the credibility of English’s version of
events (and not just the credibility of English generally). Finally, English was
prejudiced by the inflammatory testimony relating to Ceruti that was presented during
trial. The record strongly suggests that the state trial judge never would have admitted
the otherwise inadmissible testimony regarding Ceruti’s witness tampering and alleged
false evidence planting if she had not been identified by defense counsel as a potential
witness. Instead, because Ceruti was going to be a material witness, the jury was
allowed to hear damaging testimony about Ceruti’s actions that likely reflected
negatively on English due to his association with her.

Moreover, the actual evidence of English’s guilt in this case is not overwhelming.
The government presented no physical evidence other than the knives that Defendant
admitted to possessing and using. Additionally, the government presented no unbiased
witnesses13 as to the issue of self-defense in this case that ultimately boiled down to a
swearing match between Higdon and English. Higdon’s potential bias is obvious
considering his past relationship with Ceruti and Ceruti’s current relationship with
English. Lamont, meanwhile, was a friend of Higdon and had been living with him at
the Clark Street apartment. Finally, Whitehouse was Higdon’s brother-in-law at the time
of trial. “All it would have taken is for ‘one juror [to] have struck a different balance’
between the competing stories.” Ramonez, 490 F.3d at 491 (citing Wiggins, 539 U.S. at
537). And in this case, the lack of overwhelming evidence of guilt, combined with the
negative consequences of defense counsel’s failure to conduct a sufficient pre-trial
investigation, sufficiently creates a reasonable probability that at least one juror would
have struck a different balance had defense counsel not performed deficiently.
Accordingly, we hold that English has also satisfied Strickland’s prejudice prong with
respect to his failure-to-investigate claim.

13
As noted in the recitation of facts, the government did present neutral witnesses in the form of
the officer and paramedic who responded to the scene, as well as the treating physician from the hospital
to which Higdon was taken. But none of these witnesses actually saw the fight itself, and none of their
testimony was relevant to the ultimate issue of whether English was acting in self-defense.
No. 08-2611 English v. Romanowski Page 23

CONCLUSION

For the foregoing reasons, we REVERSE in part and AFFIRM in part the district
court’s conditional grant of habeas relief to Petitioner-Appellee Billy English.
No. 08-2611 English v. Romanowski Page 24

______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
______________________________________________________

KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in
part. I concur in Part II of the Analysis section of the opinion concerning defense
counsel’s ineffective assistance in failing to investigate. However, I disagree with the
reasoning in Part I of the Analysis section that English’s decision-based ineffective-
assistance-of-counsel claim should consider only those circumstances that became
known to defense counsel after the first witness was called at trial. The Strickland test
requires this court “to engage in the circumstance-specific reasonableness
inquiry”—“‘the performance inquiry must be whether counsel’s assistance was
reasonable considering all the circumstances.’” Roe v. Flores-Ortega, 528 U.S. 470, 478
(2000) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). I believe that we
should not restrict what informs our “objective standard of reasonableness” calculus in
a way that removes from consideration the information that defense counsel already
possessed and the strategic decisions already made—the decision to stress in his opening
statement that Ceruti would testify, which opened the door for the prosecutor to
introduce evidence to impeach Ceruti in his case-in-chief. Considering these
circumstances, I believe that defense counsel’s decision not to call Ceruti could not
become reasonably sound trial strategy. The reasonableness of defense counsel’s later
decision to abandon his promise to call Ceruti is affected by his prior strategic decision
to make the promise at all, irrespective of his prior investigation. I therefore respectfully
join only the reasoning in Part II of the Analysis section, and I join the judgment insofar
as it affirms the district court’s conditional grant of a writ of habeas corpus.