NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0297n.06
No. 13–4269
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Apr 23, 2015
JOHN F. SMITH, Jr., ) DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR
v. )
THE SOUTHERN DISTRICT OF
)
OHIO
CHARLOTTE JENKINS, Warden, )
)
Respondent-Appellee. )
)
BEFORE: GUY, CLAY, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. An Ohio jury convicted John Smith, Jr., of
felonious assault, Ohio Rev. Code 2903.11, and involuntary manslaughter, Ohio Rev. Code
2903.04, after finding that he punched and ultimately caused the death of Bryan Biser. Smith
was sentenced to eight years’ imprisonment after the trial court merged his convictions. In this
petition for a writ of habeas corpus, Smith only challenges his involuntary-manslaughter
conviction, arguing that his trial counsel was ineffective under Strickland v. Washington,
466 U.S. 668 (1984), for not investigating or presenting evidence that Biser’s death resulted from
a pre-existing medical condition, not Smith’s punch. The district court denied Smith’s petition.
For the reasons set forth below, we hold that Smith did not procedurally default his
Strickland claim and that Smith’s habeas petition should be granted because his trial attorney did
not function as counsel guaranteed by the Sixth and Fourteenth Amendments. We REVERSE
the judgment of the district court and REMAND with instructions to enter a conditional writ of
habeas corpus giving the State of Ohio six months to retry or dismiss the involuntary-
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Smith v. Jenkins
manslaughter charge, and further providing that if the state chooses to dismiss the charge, it shall
resentence Smith on the remaining felonious-assault conviction.1
I.
On April 15, 2005, a fight broke out between two five-year-old boys in an apartment
complex’s playground. One of the boys was Smith’s nephew, and rather than try to stop the
fight, Smith began yelling obscenities and encouraging his nephew to beat up the other boy.
Other residents of the apartment complex who saw this, including the other boy’s mother,
objected to Smith’s behavior and began arguing with him. Biser, a bystander, saw the argument
unfolding and attempted to diffuse the situation: he asked everyone to “calm down,” approached
the group in a non-aggressive manner, did not touch anyone, and did not appear to be
threatening. Nevertheless, Smith walked up to Biser and “sucker-punched” him on the left side
of his head. Biser was knocked back and, while falling, hit his face on a parked car before the
back of his head hit the pavement, causing him to begin bleeding from the head. Biser initially
laid on the ground unconscious and could not breathe; he then went in and out of consciousness,
convulsed on the ground, breathed in a manner described as “snoring,” and was extremely
disoriented. Smith fled the scene.
Approximately fifteen minutes passed before the paramedics arrived and administered
emergency treatment to Biser. Biser told the paramedics he was a Type-1 diabetic and that he
had taken his insulin that day.2 The paramedics could not confirm that Biser had taken his
1
Involuntary manslaughter is a first-degree felony, Ohio Rev. Code 2903.04, and felonious assault is a
second-degree felony, Ohio Rev. Code 2903.11. During the relevant period, a first-degree felony carried a
maximum penalty of ten years, see, e.g., State v. Moore, 2006 WL 202756 (App. Ct. Ohio Jan. 26, 2006), and a
second-degree felony a maximum penalty of eight years, see e.g., State v. Seavey, 2006 WL 847114 (App. Ct. Ohio
Mar. 31, 2006). Although Smith’s eight-year sentence does not exceed the maximum sentence for a second-degree
felony, it is unclear whether he would have received the same sentence without the first-degree felony conviction.
2
In April 2004, about one year before this incident, Biser had been diagnosed with Type-1 diabetes;
however, Biser did not seek professional treatment, obtain prescriptions, or otherwise learn how to properly manage
his diabetes.
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insulin, however, because their machine that measured blood-glucose levels malfunctioned.
When he arrived at the hospital, it was determined that Biser had a blood-glucose level of 465—
over three times the “typical” blood-glucose level—indicative of a highly irregular metabolic
state requiring immediate medical attention.
The emergency room doctor treated Biser and prescribed him insulin, but Biser told the
doctor that he had insulin at home and did not want to purchase prescription insulin from the
hospital. The doctor also recommended that Biser undergo a CT-scan to examine the extent of
his head injuries, but Biser refused. Biser was able to answer the doctor’s questions and follow
his commands appropriately. He was deemed competent to refuse treatment and was discharged
from the hospital with instructions to return if he experienced vomiting, confusion, or vision
problems.
When Biser returned to his apartment later that night, he was very confused. He told his
neighbors that he had been out singing karaoke, apparently forgetting that he had been punched
and taken to the hospital. Over the next three days, Biser did not leave his apartment. Biser’s
cousin visited him, noticed that he was not acting like himself, and confirmed that he had been
taking his insulin, although she had no way of knowing if he was taking the appropriate dosages.
Despite feeling ill and remaining confused, Biser did not return to the hospital.
Four days after being punched, on April 19, 2005, Biser was found lying on the floor of
his apartment in a hypoglycemic coma, unconscious, and struggling to breathe. His left arm and
both of his feet had turned black. Paramedics arrived and determined that Biser’s blood-glucose
level was 28, a dangerously low level resulting from an overdose of insulin. When paramedics
arrived they administered glucagon, a treatment used to quickly raise blood-glucose levels,
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before transporting Biser to the hospital. By the time he arrived at the hospital, Biser’s blood-
glucose level had skyrocketed to 1,169—nearly ten times the “typical” level.
At the hospital, a CT-scan showed that Biser had a possible skull fracture, a subdural
hematoma, and subarachnoid hemorrhage. These injuries alone are generally not fatal, but a
radiologist testified at trial that he had “never seen anyone with this sort of injury be able to
function.”3 Biser was also diagnosed with “severe diabetic ketoacidosis,” a lethal condition
caused by his failure or inability to properly administer himself insulin.
Given his dire condition, Biser was transferred to a larger hospital where he underwent
exploratory abdominal surgery, which revealed that his small bowel and a portion of his right
colon were necrotic. Biser died a few hours later, five days after Smith punched him, and about
one year after he was diagnosed with Type-1 diabetes.
The cause of Biser’s death was ultimately determined to be diabetic ketoacidosis.
However, at trial a medical examiner opined that blunt force trauma was “the underlying cause
of [Biser’s] death” because the injuries to Biser’s frontal lobe “affected how [Biser] looked after
himself” and therefore left him unable to properly administer insulin. Smith’s trial counsel’s
theory was that Biser had fallen down the steps in his apartment; trial counsel failed to present
any evidence regarding Biser’s metabolic state or explore the nature of Biser’s undisputed cause
of death, diabetic ketoacidosis. The jury convicted Smith of both felonious assault and
involuntary manslaughter and the court sentenced him to eight years’ imprisonment.
3
At argument, Smith’s counsel stated that this conclusion was seemingly contradictory based on other
statements made by the witness. The radiologist testified that individuals with these types of injuries have “a wide
range of” symptoms, but immediately followed that statement with “I have never seen anyone with this sort of injury
be able to function.” Taken together, this testimony is not contradictory; rather, the radiologist testified that Biser’s
injuries could trigger a wide variety of symptoms, all of which could render him unable to function.
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II.
Because the district court did not hold an evidentiary hearing, we review the district
court’s legal conclusions and factual findings de novo. Northrop v. Trippett, 265 F.3d 372, 377
(6th Cir. 2001); Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214 (1996),
governs review of Smith’s petition. 28 U.S.C. § 2254. Section 2254 requires heightened
deference in our review of “any claim that was adjudicated on the merits in State court
proceedings.” 28 U.S.C. § 2254(d) (emphasis added).
In determining whether AEDPA’s heightened deference applies to Smith’s case, we look
to the “last reasoned [state-court] opinion” to address Smith’s ineffective-assistance-of-counsel
claim.4 See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Guilmette v. Howes, 624 F.3d 286,
291 (6th Cir. 2010) (en banc) (holding that this court must “look to the last reasoned state-court
opinion to determine the basis for the state court’s rejection of [petitioner’s federal
constitutional] claim.”); see also Woolley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012); Thomas
v. Horn, 570 F.3d 105, 115 (3d Cir. 2009) (finding that lower state-court decision was not
subject to AEDPA deference, noting that “the Pennsylvania Supreme Court decided Thomas’
claims on purely procedural, not substantive grounds. This decision stripped the [lower] court’s
substantive determination of Thomas’ claims of preclusive effect.”). Under this framework, if
“the last reasoned opinion on the claim explicitly imposes a procedural default, [this court] will
4
We have consistently read Ylst in this manner. See Loza v. Mitchell, 766 F.3d 466, 473 (6th Cir. 2014)
(“We review the decision of the last state court to issue a reasoned opinion on the issues raised in a habeas
petition.”) (internal quotation marks and emphasis omitted); Haliym v. Mitchell, 492 F.3d 680, 691 (6th Cir. 2007)
(“[I]n determining whether a claim is procedurally defaulted, this Court must look to the last explained state court
judgment.”); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991) (“Where the last explained state court judgment
rejected petitioner’s claims on procedural grounds, the presumption [that a later unexplained decision rested on the
same grounds] is rebuttable only where the petitioner adduces strong evidence that one of the subsequent courts
reached the merits of the federal claim.”) (internal quotation marks and citation omitted) (emphasis added).
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presume that a [subsequent state-court] decision rejecting the claim did not silently disregard that
bar and consider the merits.” Ylst, 501 U.S. at 803. Thus, the “last explained state-court
judgment” governs whether AEDPA’s heightened level of review applies. See id. at 805
(emphasis in original).
Here, the first state court to review Smith’s post-conviction petition held that Smith’s
Strickland claim was barred by res judicata, but also addressed its merits and found that Smith
had not shown that his trial counsel was ineffective. The state-appellate court affirmed, stating
“Smith’s postconviction petition is barred by the doctrine of res judicata [and therefore] his
[ineffective-assistance-of-counsel claim] is rendered moot.” The state-appellate court did not
consider the merits of Smith’s Strickland claim; instead, it relied entirely on the procedural
ruling. Smith timely appealed the appellate court’s decision to the Ohio Supreme Court, which
declined jurisdiction and dismissed his appeal.
The “last reasoned opinion” on Smith’s ineffective-assistance-of-counsel claim is the
decision of the state-appellate court sitting in post-conviction review. That the appellate court
entirely relied on procedural default to adjudicate the claim is immaterial. See Hinkle v. Randle,
271 F.3d 239, 244–45 (6th Cir. 2001) (holding that the “last reasoned opinion . . . expressly
enforced Ohio’s contemporaneous objection rule”); White v. Mitchell, 431 F.3d 517, 525 (6th
Cir. 2005) (same). Accordingly, because the last reasoned opinion expressly did not reach the
merits of Smith’s Strickland claim, we review Smith’s claim de novo. See 28 U.S.C. § 2254(d)
(stating that deference is owed the state court’s opinion only if the claim “was adjudicated on the
merits”).
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III.
Smith contends that he is entitled to habeas relief because his trial counsel was ineffective
in “failing to present evidence that Mr. Biser’s death was not caused by behavior that resulted
from his head injury; and by failing to seek the testimony of an expert witness to rebut the
testimony of the State’s witnesses.”
A.
We first consider whether we may properly address Smith’s claim. When “a state
prisoner has defaulted his federal claims in state court pursuant to an independent and adequate
state procedural rule,” our review of the claim is barred unless “the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of federal law,” or
show “that failure to consider the claims will result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Wainwright v. Sykes, 433 U.S. 72, 87
(1977) (adopting “cause and prejudice” standard).
This court has established a four-factor analysis to determine whether a litigant has
defaulted under state procedural rules such that habeas review is precluded. See Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must determine that there is a state
procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply
with the rule.” Id. Second, the court must determine whether the state courts actually enforced
the state procedural sanction. Id. Third, the court must decide whether the state procedural
forfeiture is an adequate and independent state ground on which the state can rely to foreclose
review of a federal constitutional claim. Id. Finally, if the court determines that the petitioner
failed to comply with an adequate and independent state procedural rule, then the petitioner must
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demonstrate good cause for his failure to follow the procedural rule as well as actual prejudice
from the alleged constitutional error. Id.
The final prong of the Maupin test is at issue here. This prong allows Smith to avoid
procedural default by showing that he had good cause for failing to comply with the state
procedural rule and that actual prejudice resulted from the alleged constitutional error. See id.
The “cause” must be external to Smith and not fairly attributable to him. See Coleman, 501 U.S.
at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986) (cause is an “objective factor external to the
defense imped[ing] counsel’s efforts to comply” with the state procedural rule). If Smith makes
this showing, we can review the merits of his petition.
In Ohio, “[a] reviewing court cannot add matter to the record before it, which was not a
part of the trial court’s proceedings.” State v. Ishmail, 54 Ohio St. 2d 402, 403–04 (1978).
Accordingly, “allegations of ineffectiveness based on facts not appearing in the record should be
reviewed through [Ohio’s] postconviction remedies.” State v. Coleman, 85 Ohio St. 3d 129, 134
(Ohio 1999); Byrd v. Collins, 209 F.3d 486, 521 (6th Cir. 2000) (stating that Ohio’s doctrine of
res judicata “has been consistently interpreted to stand for the proposition that a claim of
ineffective assistance of trial counsel, which is dependent upon evidence outside the record, is to
be raised in a post-conviction proceeding rather than on direct appeal”). A post-conviction
proceeding constitutes a civil collateral attack on a criminal judgment whereby a criminal
defendant may obtain review of “constitutional issues which would otherwise be impossible to
reach because the evidence supporting those issues is not contained in the trial record.” State v.
Turner, No. 04AP-1143, 2006 WL 391820, at *1 (Ohio App. 10th Dist. Feb. 21, 2006) (internal
quotation marks omitted). Thus, when an Ohio court sitting in post-conviction review finds that
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a claim is procedurally defaulted, it effectively prohibits the petitioner from introducing evidence
into the record for that particular claim.
This court addressed a situation analogous to that of Smith’s in Richey v. Bradshaw,
498 F.3d 344 (6th Cir. 2007), where Richey, a prisoner in Ohio, argued in a post-conviction
relief petition that his trial counsel had been ineffective in failing to investigate and refute the
State’s evidence against him. Id. at 348. To show his trial counsel’s deficiency, Richey gathered
evidence outside the record, provided affidavits of experts challenging the state’s trial theory,
and presented sworn deposition testimony that showed his trial counsel’s “lack of oversight . . .
and lack of preparation in seeking to undermine the State’s scientific findings.” Id. at 360.
Richey submitted this information with his post-conviction petition. Id. The state courts held
that Richey’s ineffective-assistance-of-counsel claim was procedurally defaulted under the
doctrine of res judicata, and refused to address the merits of the ineffective-assistance-of-counsel
claim. Id. The district court denied Richey habeas relief, and this court reversed. Id. (stating
that “the only way” Richey could have shown the constitutional infirmity “required evidence
outside the record”).
In Richey, this court noted that “[n]one of this testimony was available to Richey on
direct appeal precisely because, under Ohio law, direct appeals are confined to the trial record.”
Id. Indeed, in Ohio, asserting an ineffective-assistance-of-counsel claim on direct appeal is
nearly always doomed to fail. See id.; see also Williams v. Anderson, 460 F.3d 789, 800–01 (6th
Cir. 2006) (granting habeas relief where the petitioner’s attorney raised a claim of ineffective
assistance of counsel on direct appeal in Ohio state court because, in doing so, counsel precluded
the petitioner from supporting his claim with evidence). Accordingly, the Richey court held that
res judicata did not bar Richey’s ineffective-assistance-of-counsel claim, even though it was
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raised for the first time in post-conviction proceedings, because the state court would have had
no basis for concluding that Richey’s counsel was deficient given the state-evidentiary rule.
Moreover, the Richey court concluded that Richey was prejudiced by his trial counsel failing to
gather and present the kind of scientific evidence a reasonably competent attorney would have
presented. Richey, 498 F.3d at 360.
Here, Smith could have raised an ineffective-assistance-of-counsel claim on direct
appeal, but had he done so, he would not have been able to present the evidence necessary to
support his claim. See id.; Ishmail, 54 Ohio St. 2d at 403–04. Smith attached affidavits from
both his appellate counsel and an expert endocrinologist to his post-conviction petition. The
endocrinologist’s report provides an alternate theory of causation, and his appellate counsel’s
affidavit shows that Smith’s trial counsel did not investigate Biser’s metabolic condition at all.
Without such evidence, Smith would not have been able to argue that he was prejudiced by
counsel’s allegedly deficient representation. See Richey, 498 F.3d at 359–60; Greer v. Mitchell,
264 F.3d 663, 675 (6th Cir. 2001) (stating, in a materially identical context, that “when the
record reveals that the state court’s reliance upon its own rule of procedural default is misplaced,
we are reluctant to conclude categorically that federal habeas review of the purportedly defaulted
claim is precluded”); White, 431 F.3d at 526–27 (reviewing an ineffective-assistance-of-counsel
claim on the merits even though the Ohio courts deemed it procedurally defaulted under Ohio’s
res judicata rule). Accordingly, we find that we may address the merits of Smith’s Strickland
claim.
B.
The right to the effective assistance of counsel at trial is a “critically important” right
guaranteed by the Sixth Amendment, and a state prisoner whose conviction rests on a denial of
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that right may be entitled to habeas relief. Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013); Roe
v. Flores-Ortega, 528 U.S. 470, 476 (2000). “The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S 86, 105
(2011) (quoting Strickland, 466 U.S. at 690). To succeed on a Strickland claim, a petitioner
must show that counsel’s performance fell “below an objective standard of reasonableness,” 466
U.S. at 688, and “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” id. at 694.
1.
Under the first element of Strickland, Smith argues that his trial counsel was
constitutionally deficient in failing to investigate the undisputed cause of Biser’s death,
especially given that trial counsel offered no strategic reason for not doing so.
A court considering a claim of ineffective assistance must apply a “strong presumption”
that counsel’s representation was within the “wide range” of reasonable, professional assistance.
Id. at 697; see also Darden v. Wainwright, 477 U.S. 168, 185–87 (1986). The petitioner must
show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. The deference
a reviewing court must give to counsel’s strategic decisions depends on the adequacy of the
investigation underlying counsel’s decisions. Wiggins v. Smith, 539 U.S. 510, 521 (2003) (“‘In
other words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.’” (quoting Strickland, 466 U.S. at
691)). Failure to make such an investigation “must be supported by a reasoned and deliberate
determination that investigation was not warranted.” O’Hara v. Wigginton, 24 F.3d 823, 828
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(6th Cir. 1994) (interpreting Strickland); Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004).
Simply put, “‘[a] lawyer who fails adequately to investigate, and to introduce into evidence,
information that demonstrates his client’s factual innocence, or that raises sufficient doubts as to
that question to undermine confidence in the verdict, renders deficient performance.’” Richey,
498 F.3d at 362 (quoting Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006) (interpreting
Strickland)).
In post-conviction proceedings, Smith’s appellate counsel provided an affidavit stating
that “[trial counsel] did not conduct any investigation into the state of Mr. Biser’s metabolic
health,” and that trial counsel did not inform her “of a strategic reason for not consulting with, or
providing the testimony of an endocrinologist, to address the serious state of Mr. Biser’s health.”
Although a competent defense counsel may not have necessarily presented expert testimony
regarding Biser’s diabetes, such counsel would have, at a minimum, investigated the extent and
cause of Biser’s diabetic ketoacidosis—the undisputed cause of his death—before deciding not
to pursue such a theory in challenging causation. See Bigelow, 367 F.3d at 570.
Biser died from complications relating to inadequate management of his diabetes. The
prosecution attributed that mismanagement to Biser’s being disoriented and diminished as a
consequence of Smith’s punch. It seems clear beyond peradventure that competent counsel in
such a situation would explore the severity, extent, and history of Biser’s diabetes, the
management thereof, as well as the possible consequences of such mismanagement. Smith’s
trial counsel’s failure to conduct such an investigation, coupled with no “reasonable and
deliberate determination that investigation was not warranted,” leads to the conclusion that
Smith’s trial counsel was constitutionally deficient. See Wiggins, 539 U.S. at 521; Bigelow,
367 F.3d at 570.
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2.
Under the second prong of Strickland, Smith must show that counsel’s errors were so
serious as to deprive him of a trial whose result is reliable. 466 U.S. at 687. A defendant is
prejudiced when he can “show that there is 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 a probability sufficient to undermine confidence in the outcome.” Id.
In sum, “a court making the prejudice inquiry must ask if the defendant has met the burden of
showing that the decision reached would reasonably likely have been different absent the errors.”
Id. at 696.
At trial, the jury heard only vague references to Biser’s metabolic state. For example, the
medical examiner stated that Biser’s blood-glucose level of 465 required medical attention, but
did not explain that such a condition, in and of itself, could be life threatening. Indeed, the
medical examiner knew very little about diabetes; he testified only that Biser’s “diabetes was
very much out of control,” before stating “[Biser] is a diabetic which requires as I understood the
record, insulin.” Beyond simply hearing unexplained numbers (i.e., blood-glucose levels of 28,
465, and 1,169) and an unfamiliar cause of death (i.e., diabetic ketoacidosis), the jury was
entirely unaware of the extent of Biser’s metabolic condition. Without at least some explanation
of Biser’s state of health beyond his head injuries, the jury had no real basis to question the
prosecution’s theory that Smith’s punch caused Biser’s death.
In post-conviction proceedings, Smith presented the expert report and testimony of Dr.
Christofides, an endocrinologist, who opined that Biser was “disinterested, lackadaisical, and
incompetently managing his diabetes before” Smith punched him, and thus the head trauma
Biser suffered did not necessarily cause Biser’s death. Dr. Christofides explained that Type-1
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diabetics should not be using the insulin Biser used, and that Biser’s severe mismanagement of
his diabetes could have caused his death notwithstanding his head trauma. Dr. Christofides
could not testify about Biser’s condition with particularity because she “simply ha[d] no
information on his diabetes care”—Biser had not sought treatment and thus did not have any
relevant medical records—but she stated that Biser’s A1C level, a metabolic measurement
showing Biser’s blood-sugar levels for the previous two-to-three months, showed that Biser had
been dangerously mismanaging his diabetes prior to the assault. According to Dr. Christofides,
Biser’s mismanagement would certainly cause him severe health problems, and could rise to the
level of being fatal.
The State’s case rested on the circumstantial timing of Biser’s death vis-à-vis Smith’s
punch and the allegation that the punch caused brain damage that left Biser unable to care for
himself. The State did not contest that Biser died from diabetic ketoacidosis, not brain injuries.
Rather, it invited the jury to conclude that Biser’s life was cut short because Smith’s punch
rendered him unable to adequately manage his diabetes. Dr. Christofides (or any
endocrinologist) could have presented testimony supporting that Biser’s diabetes (and
mismanagement thereof) itself caused his death. Dr. Christofides (or any endocrinologist) could
have supported that Biser had severely mismanaged his diabetes for at least the two-to-three
months prior to his death and likely longer; explained to the jury what was likely occurring in
Biser’s body given that he had no education or training in how to self-treat the disease; and
explained to the jury the consequences when a Type-1 diabetic, like Biser, habitually uses a type
of non-prescription insulin that is unsuitable for his disease and disfavored by the medical
community.
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To be sure, the record suggests that, at a minimum, Biser suffered a severe concussion
when he was knocked unconscious by Smith. The brain injuries Biser suffered were not fatal in
and of themselves, but they were certainly capable of rendering Biser less competent and could
have indirectly affected the regularity of his insulin intake. And Dr. Christofides testified that
she could not determine with any level of medical certainty that Biser’s diabetic condition would
have absolutely led to his premature death. But all of this is beside the point; Dr. Christofides
presented an alternate theory of causation, supported by the record, that casts serious doubt on
the state’s theory and based on which a reasonable jury could have found Smith not guilty of
manslaughter. No such evidence was presented to the jury, however. Finally, although Dr.
Christofides was not qualified to refute the medical examiner’s conclusion regarding the manner
of Biser’s death, because she is not a forensic pathologist, she could address Biser’s underlying
medical condition and its effects on his body’s ability to function. Ultimately, it was for the jury,
not the medical examiner, to decide causation.5
Because the “decision reached [by the jury] would reasonably likely have been different”
had Smith’s trial counsel presented testimony about Biser’s metabolic state, see Strickland, 466
U.S. at 696, Smith has shown prejudice arising from his trial counsel’s deficiency.
IV.
For the foregoing reasons we REVERSE the judgment of the district court and
REMAND with instructions to enter a conditional writ of habeas corpus giving the State of Ohio
six months to retry or dismiss the involuntary-manslaughter charge, and further providing that if
the state chooses to dismiss the charge, it shall resentence Smith on the remaining felonious-
assault conviction.6
5
The trial court gave the jury an instruction on causation.
6
Again, we recognize that resentencing may or may not result in a change of sentence.
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