NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0944n.06
FILED
No. 10-1895
Aug 28, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MARVEL DANIEL, )
)
Petitioner-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
CINDI S. CURTIN, )
)
OPINION
Respondent-Appellant. )
_______________________________________)
Before: DAUGHTREY, MOORE, and McKEAGUE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. The state appeals a judgment from the United
States District Court for the Eastern District of Michigan granting Marvel Daniel’s (“Daniel”)
petition for a writ of habeas corpus on the grounds of ineffective assistance of counsel. In addition
to arguing that the district court erred in granting the writ, the state contends that the district court
improperly held an evidentiary hearing, that all evidence presented during that hearing should be
omitted from this court’s consideration, and that the deferential standard of review set out in the
Anti-Terrorism and Death Penalty Act of 1996 (“AEDPA”)—rather than de novo review—should
apply because Daniel’s claim was adjudicated on the merits in state court. Because in light of
intervening Supreme Court precedent the district court improperly granted Daniel’s petition for a
writ of habeas corpus, we REVERSE the judgment of the district court and REMAND for further
proceedings consistent with this opinion.
No. 10-1895
Daniel v. Curtin
I. BACKGROUND AND PROCEDURAL HISTORY
On July 12, 2003, Derrick Mitchell (“Mitchell”) was shot while driving his automobile in
east Detroit. Police officers received a call alerting them to the shooting at 9:30 p.m. and found
Mitchell dead at the scene when they arrived approximately five minutes later. R. 11-12 (Trial Tr.,
7/20/04, at 55:3, 56:24-57:5). Mitchell was a “known drug dealer” in the neighborhood and
notoriously “hid his drugs in stereo equipment in his car.” People v. Daniel, No. 257658, 2005 WL
3440436, at *1 (Mich. Ct. App. Dec. 15, 2005) (unpublished opinion).
That night at the scene, police took written statements from two eyewitnesses, Shawn O’Neil
(“O’Neil”) and Dollie Muex (“Muex”), who were sitting on the front porches of nearby houses when
the shooting took place. R. 34-4 (Exh. 2). Neither O’Neil nor Muex knew Mitchell. Both witnesses
reported hearing a single gunshot and then seeing Mitchell’s car collide into the back of a parked
vehicle before crashing into a nearby tree. Id. at 2-A, 2-B. Both witnesses reported that after the
vehicle crashed into the tree, two or three young boys ran toward the car, took something out of it,
and then ran in the same direction they had come, away from the vehicle. Id. O’Neil stated that he
did not see who shot Mitchell nor did he “notice any other vehicles around the vehicle that crashed.”
Id. at 2-A. Muex reported seeing a “white [2002 mini] van . . . with black interior, tinted windows”
alongside Mitchell’s vehicle immediately before the shooting. Id. at 2-B. Muex also stated that the
passenger window of the van appeared to be open. Id.
Officers Shawn Stallard (“Stallard”) and Steven Compton (“Compton”) completed
preliminary police reports documenting the incident. Id. at 2-C, 2-D. Stallard wrote in his report
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that a “[white] newer model mini van [with] gold rims” was reported at the scene, and that he spoke
with Muex, who reported hearing a single gun shot and witnessing the minivan traveling “next
to/slightly behind” the victim’s vehicle. Id. at 2-C. Compton wrote in his report that the suspect was
driving a “white” “2002 model” “minivan w[ith] gold rims,” and that Muex confirmed that the shots
were fired from the “pass[enger] side front window of the sus[pect’s] veh[icle.]” Id. at 2-D.
In November 2003, Daniel was arrested in connection with the shooting and charged with
first-degree murder. R. 11-2 (State Ct. Docket at 1). During a two-day bench trial in July of 2004,
the prosecution presented four key witnesses to the shooting: Darius Scott (“Scott”), Prentice
Graham (“Graham”), Shantrice Riley (“Riley”), and Simon Melton (“Melton”). None of these
witnesses provided statements to the police on the night in question. R. 11-15 (Trial Tr., 7/26/04,
at 82:5-7). Daniel presented an alibi witness in his defense. The Michigan Court of Appeals
summarized the testimony given at trial as follows:
One witness testified that defendant was driving his van at the time of the shooting.
Two other witnesses also testified that defendant was driving his van at the time of
the shooting, but they equivocated on this point at trial, stating that they assumed
defendant was driving because they recognized the van as belonging to him. One of
the prosecution’s witnesses, Darius Scott, testified that, shortly after the shooting,
defendant contacted him by telephone and simply stated, “yep, yep, yep, yep.”
Before that time, Scott and defendant had discussed the shooting death of another
drug dealer, Shawn, who sold drugs with defendant out of a house on Novara Street.
Scott testified that he believed Mitchell was involved in Shawn’s shooting . . . .
Defendant offered an alibi defense. His girlfriend testified that he was at her
home from 2:00 p.m. until approximately midnight on the date Mitchell was shot.
During this timeframe, she had the keys to defendant’s gray conversion van, and the
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van remained parked nearby. She testified that defendant’s van could not have been
near Novara Street at the time of the shooting.
Daniel, 2005 WL 3440436, at *1.
The trial judge found sufficient evidence of Daniel’s involvement in the shooting, but
reasonable doubt as to whether the shooting was premeditated. R. 11-15 (Trial Tr., 7/26/04, at 99:3-
15). As a result, Daniel was convicted of second-degree murder and sentenced to fifty-to-seventy-
five years in prison.
Daniel moved for a new trial, an evidentiary hearing, and a court-appointed investigator, and
argued that he was denied effective assistance of counsel, among other claims. R. 11-2 (State Ct.
Docket at 6). After holding an evidentiary hearing in which trial counsel, Daniel, and an additional
alibi witness testified, the trial judge concluded that Daniel’s counsel was not ineffective and denied
Daniel’s motion for a court-appointed investigator. R. 11-17 (Ginther Hr’g, 4/25/05, at 67:12-18).
The Michigan Court of Appeals affirmed. Daniel, 2005 WL 3440436, at *1, *6. Daniel petitioned
for rehearing, arguing that he was impeded from presenting evidence to substantiate his claim by the
trial court’s refusal to appoint an investigator, but the Michigan Court of Appeals summarily denied
his petition. R. 11-18 (Mich. Ct. App. Order). The Michigan Supreme Court denied leave to appeal.
R. 11-19 (Mich. Sup. Ct. Order).
Daniel filed a petition for a writ of habeas corpus in federal district court raising the same
claims presented in state court. R. 1 (Habeas Pet.). The district court granted an evidentiary hearing
on two issues, R. 12 (Dist. Ct. Order, 11/4/08, at 1), and then granted Daniel’s request to expand the
hearing’s scope to address whether counsel was ineffective in failing to investigate eyewitnesses
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O’Neil and Muex, R. 21 (Dist. Ct. Order, 9/11/09, at 1). During the evidentiary hearing, O’Neil
expanded on his prior statements to the police and testified that he witnessed a white minivan drive
alongside Mitchell’s vehicle prior to the shooting. R. 28 (Evid. Hr’g Tr., 2/22/10, at 23:24-27:5).
O’Neil also testified that a picture of Daniel’s van did not resemble the van he saw on the night of
the shooting. Id. at 28:25-29:1. An affidavit from Muex was introduced into evidence largely
affirming her prior statement to the police. Id. at 39:21-40:9; see also 34-7 (Muex Aff.).
The district court concluded that trial counsel’s failure to investigate O’Neil’s and Muex’s
testimony amounted to ineffective assistance of counsel that prejudiced Daniel and, thus, granted
Daniel’s petition for habeas relief. R. 36 (Dist. Ct. Op. at 13-17). In doing so, the district court
applied de novo review because it determined that the Michigan Court of Appeals “ignored the
gravamen of petitioner’s claim,” and “failed to provide funds to petitioner to hire an investigator.”
Id. at 11. The district court also stated, however, that it would have reached the same result “[e]ven
under the higher AEDPA review standard.” Id. at 17 n.3.1 The state timely appeals.
II. ANALYSIS
The district court’s opinion in this matter was issued prior to important Supreme Court
precedent governing the habeas corpus legal landscape. Thus, the Supreme Court’s decisions in
Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770 (2011), and Cullen v. Pinholster, --- U.S. ---, 131
S. Ct. 1388 (2011), require that we scrutinize two key aspects of the district court’s decision: the
1
The district court denied habeas relief on Daniel’s remaining claims. Daniel does not appeal
this determination.
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application of de novo review and the consideration of evidence introduced during the federal
evidentiary hearing. We address each issue before considering the merits of Daniel’s habeas
petition.
A. Standard of Review
“We review the district court’s legal conclusions in habeas proceedings de novo and its
findings of fact for clear error.” Akins v. Easterling, 648 F.3d 380, 385 (6th Cir. 2011) (internal
quotation marks omitted). Because Daniel’s habeas petition was filed after AEDPA’s effective date,
we apply AEDPA in our review of his petition. Id. Under AEDPA, to uphold the district court’s
grant of habeas relief we must conclude that the Michigan court’s decision “with respect to any claim
that was adjudicated on the merits in State court proceedings” was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court”
or (2) “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).
“A state court’s decision would be considered contrary to established law if it is diametrically
different from or opposite in character or nature to federal law as determined by the Supreme Court.”
Akins, 648 F.3d at 385 (internal quotation marks and alterations omitted). “If the state court
identifies the correct governing legal principle from the Supreme Court’s decisions, habeas relief is
available under the unreasonable application clause if the state court unreasonably applies that
principle to the facts of the prisoner’s case or unreasonably extends or unreasonably refuses to extend
a legal principle from the Supreme Court precedent to a new context.” Id. (internal quotation marks
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and alterations omitted). In order to warrant habeas relief, “the state court’s application of clearly
established law must be objectively unreasonable” and not just “erroneous[] or incorrect[].” Id. at
385-86 (internal quotation marks and alterations omitted). “A decision adjudicated on the merits in
a state court and based on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state-court proceeding.” Id. at 386
(internal quotation marks omitted). “The state court’s factual determinations are ‘presumed to be
correct,’ and the petitioner has ‘the burden of rebutting the presumption of the correctness by clear
and convincing evidence.’” Id. (quoting 28 U.S.C. § 2254(e)(1)).
This deferential standard of review under AEDPA is limited to claims “adjudicated on the
merits in State court proceedings.” 28 U.S.C. § 2254(d). The district court in this case, citing our
decision in Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003), concluded that de novo review
was appropriate because Daniel’s ineffective-assistance-of-counsel claim was not decided on the
merits by the state court. R. 36 (Dist. Ct. Op. at 11). In support of this conclusion, the district court
found that (1) the Michigan Court of Appeals “ignored the gravamen of petitioner’s claim”
discussing only the reasonableness of counsel’s decision not to have the two eyewitnesses testify as
opposed to counsel’s decision not to investigate those witnesses; and (2) the state court impeded
Daniel from presenting evidence in support of his claim by denying Daniel’s request for funding for
an investigator. Id.
Since the district court issued its decision, the Supreme Court has clarified the meaning of
“adjudicated on the merits” for the purposes of AEDPA’s deferential review. In Harrington v.
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Richter, the Supreme Court held that “[w]hen a federal claim has been presented to a state court and
the state court has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the contrary.” 131 S.
Ct. at 784-85. In essence, the Court clarified that Ҥ 2254(d) does not require a state court to give
reasons before its decision can be deemed to have been ‘adjudicated on the merits.’” Id. at 785. We
have analyzed Richter’s exact import in light of prior Supreme Court precedent and concluded that
it is only “when there is no explanation as to either Strickland prong” that “a habeas court must
afford both prongs of AEDPA deference after determining what arguments or theories could have
supported the state court’s decision.” Rayner v. Mills, 685 F.3d 631, 637 (6th Cir. 2012) (internal
quotation marks and alterations omitted). This means that when a state court discusses only one
Strickland prong, we continue to follow the Supreme Court’s decision in Wiggins v. Smith, 539 U.S.
510, 534 (2003), and review de novo the prong not reached by the state court. Id. at 637-38; see also
Davis v. Lafler, 658 F.3d 525, 537 (6th Cir. 2011) (en banc).
There is no dispute that Daniel raised the same ineffective-assistance-of-counsel claim that
he now advances in federal court before the Michigan Court of Appeals. See R. 11-18 (Daniel Mich.
Ct. App. Br. at 13). It is also clear that the Michigan court expressed no view on the merits of the
first prong of Daniel’s Strickland claim: whether counsel’s failure to investigate the two eye
witnesses constitutes deficient performance. Nevertheless, it does appear that the Michigan Court
of Appeals addressed the prejudice prong of the Strickland inquiry insofar as it concluded that
“[d]efendant has not met his burden of proving that the outcome of his case would have been
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different if his counsel had . . . called other witnesses to testify.” Daniel, 2005 WL 3440436, at *3.2
Accordingly, we review the deficient-performance prong of Daniel’s Strickland claim de novo, but,
contrary to the holding of the district court, still afford the prejudice prong AEDPA deference.
B. Federal Evidentiary Hearing
The district court conducted an evidentiary hearing on Daniel’s ineffective-assistance-of-
counsel claim, at least in part because the state court refused to provide funds for Daniel to hire an
investigator, which Daniel argues impeded him from presenting evidence to the Michigan state
courts. The state argues that the district court erred in granting Daniel a federal evidentiary hearing
and that we may not consider the evidence introduced during that hearing on appeal. We agree with
the state in light of recent Supreme Court precedent.
The Supreme Court held in Cullen v. Pinholster that claims under § 2254(d)(1) of AEDPA
must be assessed solely on the record before the state court. The Court explained:
Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that ‘resulted
in’ a decision that was contrary to, or ‘involved’ an unreasonable application of,
established law. This backward-looking language requires an examination of the
state-court decision at the time it was made. It follows that the record under review
2
We acknowledge that the Michigan court’s Strickland analysis focused solely on counsel’s
failure to call Muex and O’Neil as witnesses during trial, which is slightly different from the
Strickland claim premised on counsel’s failure to investigate Muex and O’Neil as potential defense
witnesses. See Daniel, 2005 WL 3440436, at *3. Nevertheless, because the prejudice inquiries for
both Strickland claims in this instance are identical—both hinged on the reasonable probability that
Muex’s and O’Neil’s testimony would have impacted the outcome of the trial based on the
information contained in the police reports memorializing Muex’s and O’Neil’s statements on the
night of the shooting—it is appropriate to conclude that Michigan court’s prejudice determination
is applicable to both Strickland claims.
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is limited to the record in existence at that same time i.e., the record before the state
court.
131 S. Ct. at 1398. Accordingly, we are limited to the state-court record and we may not consider
the new evidence presented during the evidentiary hearing before the district court, at least insofar
as it is relevant to the prejudice prong of Daniel’s Strickland claim.3 See Campbell v. Bradshaw, 674
F.3d 578, 586 (6th Cir. 2012) (“In other words, ‘[i]f a claim has been adjudicated on the merits by
a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record
that was before that state court.’” (quoting Pinhoslter, 131 S. Ct. at 1400)).
We also note that Daniel has not presented any reason why the strictures of Pinholster would
not apply in his particular case. The majority in Pinholster did recognize that “state prisoners may
sometimes submit new evidence in federal court” because it is axiomatic that “not all federal habeas
claims by state prisoners fall within the scope of § 2254(d)”; some claims will not have been
previously “adjudicated on the merits in [the] State court proceedings.” Pinholster, 131 S. Ct. at
1401 (internal quotation marks omitted). In dissent, Justice Sotomayor suggested that “[t]here may
be situations in which new evidence supporting a claim adjudicated on the merits gives rise to an
altogether different claim” and that “the majority [did] not intend to suggest that review is limited
to the state-court record when a petitioner’s inability to develop the facts supporting his claim was
the fault of the state court itself.” Id. at 1417 n.5 (Sotomayor, J., dissenting). The majority seemed
3
Because the new evidence is relevant to only our prejudice determination, we decline to
consider whether such evidence could be considered in the course of our de novo review of the
performance prong of the Strickland inquiry.
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to agree with this proposition, at least in the abstract. See id. at 1401 n.10 (“Though we do not
decide where to draw the line between new claims and claims adjudicated on the merits, Justice
Sotomayor’s hypothetical involving new evidence of withheld exculpatory witness statements may
well present a new claim.” (internal citations omitted)). Daniel makes no argument that his case falls
into this exception, and we therefore have no occasion to consider its existence or scope. While it
is true that the state court did not provide funding for an independent investigator as he requested,
Daniel was afforded the benefit of a Ginther hearing during which he could have introduced
evidence relevant to his ineffective-assistance-of-counsel claims. Indeed, at the Ginther hearing the
trial judge stated: “I’m not precluding [Daniel] or [defense counsel] from calling any witness that
[they] want to call. I’ll make that abundantly clear for the record.” R. 11-17 (Ginther Hr’g, 4/25/05,
at 48:2-4).
Accordingly, we conclude that Daniel’s case falls squarely within the Supreme Court’s
holding in Pinholster that claims decided on the merits in state court and assessed under § 2254(d)(1)
must be confined to the record before the state court. As a result, we may not consider the additional
evidence presented during the federal evidentiary hearing. See Campbell, 674 F.3d at 590 n.3 (“We
similarly cannot review the testimony . . . [given] at the federal evidentiary hearing because it was
not part of the state court record.”).
C. Ineffective-Assistance-of-Counsel Claim
The Sixth Amendment guarantees criminal defendants “the right to the effective assistance
of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks omitted).
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To state a claim for ineffective assistance of counsel, a defendant must demonstrate: (1) “that
counsel’s representation fell below an objective standard of reasonableness”; and (2) “that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 688, 694. “Our review of counsel’s performance is highly
deferential and counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Johnson v. Bell, 525 F.3d
466, 487 (6th Cir. 2008) (internal quotation marks omitted), cert. denied, 129 S. Ct. 1668 (2009).
1. Performance
In Wiggins, the Supreme Court held that counsel’s failure to conduct an adequate
investigation before deciding on a defense strategy constituted ineffective assistance of counsel under
Strickland. 539 U.S. at 533-34. The Court explained that “strategic choices made after less than
complete investigation are reasonable only to the extent that reasonable professional judgments
support the limitations on investigation” and that consequently “[a] decision not to investigate . . .
must be directly assessed for reasonableness in all the circumstances.” Id. at 533 (internal quotation
marks omitted). The Court then concluded that the state court’s application of Strickland was
“objectively unreasonable” because the state court failed to assess whether counsel’s decision to
cease further mitigation investigation upon the acquisition of two distinct types of records “actually
demonstrated reasonable professional judgment.” Id. at 527. The Court explained that, instead,
“[t]he state court merely assumed that the investigation was adequate” when in fact the record
revealed that “counsel chose to abandon their investigation at an unreasonable juncture, making a
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fully informed decision with respect to sentencing strategy impossible.” Id. at 527-28. We conclude
that Wiggins is directly applicable to the case before us.4
Daniel’s counsel failed to investigate—in fact failed even to attempt to contact—the only two
unbiased eyewitnesses to the murder, O’Neil and Muex. See R. 11-17 (Ginther Hr’g Tr., 4/25/05,
at 16:17-19). Instead, counsel relied solely on these witnesses’ statements to the police to conclude
that they would not be helpful to Daniel’s defense. Id. at 16:18-19. At the Ginther hearing before
the state court, Daniel’s counsel justified this decision by explaining that he was concerned that
Muex and O’Neil might corroborate the testimony from the prosecution’s witnesses because their
statements were not “necessarily . . . inconsistent with what the prosecution witnesses were talking
about.” Id. at 13:23-14:5. In particular, he expressed concern about the witnesses corroborating the
4
Admittedly, Wiggins is different insofar as it involved counsel’s obligations during the
sentencing phase of a capital trial. We do recognize that the ABA imposes heightened professional
standards on counsel in the sentencing phase of a capital case. See Bobby v. Van Hook, --- U.S. ---,
130 S. Ct. 13, 17 (2009) (discussing 2003 ABA Guidelines for capital defense counsel); see also id.
at 16 (The ABA guidelines are “useful . . . only to the extent they describe the professional norms
prevailing when the representation took place.”); Rompilla v. Beard, 545 U.S. 374, 387 (2005)
(discussing 1982 ABA Standards for Criminal Justice, which are not capital-sentencing specific, as
relevant to determining reasonableness of counsel’s conduct during capital-sentencing phase).
However, the Sixth Amendment right to counsel is at core concerned with a defendant receiving “a
fair trial.” Strickland, 466 U.S. at 686 (explaining that the right to effective assistance of counsel
extends to “[a] capital sentencing proceeding” because such a proceeding “is sufficiently like a trial
in its adversarial format and in the existence of standards for its decisions.”). Therefore, despite their
capital-sentencing contexts, Strickland and Wiggins remain applicable to counsel’s conduct during
the merits portion of a criminal trial. See, e.g., Ramonez v. Berghuis, 490 F.3d 482, 488 (6th Cir.
2007) (“[T]he state court ignored the central teaching of Strickland, as reaffirmed by Wiggins, that
the investigation leading to the choice of a so-called trial strategy must itself have been reasonably
conducted lest the ‘strategic’ choice erected upon it rest on a rotten foundation.” (citations omitted)).
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removal of the object from Mitchell’s vehicle immediately following the shooting, as this could
support a finding of felony first-degree murder. Id. at 15:3-12.
While the reasons stated by Daniel’s counsel might explain why an attorney ultimately would
decide not to present the testimony of a witness at trial, they do not explain why counsel would
choose not to conduct even minimal investigation into the potential utility of a witness. See Porter
v. McCollum, --- U.S. ---, 130 S. Ct. 447, 453 (2009) (concluding that counsel’s performance was
constitutionally deficient where counsel “did not even take the first step of interviewing witnesses
or requesting records”); Towns v. Smith, 395 F.3d 251, 260 (6th Cir. 2005) (stating that while under
some circumstances it may have been “objectively reasonable” to decline to call a particular witness,
“it was objectively unreasonable for counsel to make that decision without first investigating [the
potential witness], or at least making a reasoned professional judgment that such investigation was
unnecessary.”). Indeed, applying Wiggins we have held on numerous occasions that a decision made
by counsel without the necessary investigation constitutes deficient performance. See, e.g., Couch
v. Booker, 632 F.3d 241, 246 (6th Cir. 2011) (“While the point of the Sixth Amendment is not to
allow Monday-morning quarterbacking of defense counsel’s strategic decisions, a lawyer cannot
make a protected strategic decision without investigating the potential bases for it.”); English v.
Romanowski, 602 F.3d 714, 728 (6th Cir. 2010) (“Although defense counsel’s 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.”); Bigelow v. Haviland, 576 F.3d 284, 289 (6th Cir. 2009) (concluding that counsel’s
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failure to seek corroboration for an alibi defense constituted deficient performance under Strickland);
Poindexter v. Booker, 301 F. App’x 522, 528-29 (6th Cir. 2008) (unpublished opinion) (concluding
that counsel’s failure to investigate two alibi witnesses constituted deficient performance under
Strickland).
In this case, it would have been clear to even the most unseasoned counsel that Muex and
O’Neil were potentially important witnesses by virtue of the fact that they were the only disinterested
witnesses to the shooting who provided statements to police on the night in question. See Wiggins,
539 U.S. at 525 (“[A]ny reasonably competent attorney would have realized that pursuing these leads
was necessary to making an informed choice among possible defenses.”). In light of this fact, it is
difficult to fathom why counsel would not make even the most minimal efforts to contact and
interview these individuals to probe their utility to the defense. See id. at 533 (while Strickland
“does not require counsel to investigate every conceivable line of . . . evidence” no matter the
prospect of its utility, decisions as to how to allocate investigatory resources must be reasonable).
Indeed, it is difficult to understand how counsel could have made a reasoned professional judgment
not to utilize Muex and O’Neil without at least speaking to them once. See id.
Moreover, contrary to Daniel’s trial counsel’s assertions, the statements that O’Neil and
Muex gave to the police on the night of the shooting were not so obviously unhelpful to the defense
to warrant no further investigation; O’Neil’s and Muex’s statements did conflict in significant
respects with the testimony presented by the prosecution’s witnesses at trial. Muex stated to the
police on the night of the shooting that the van she saw was a white minivan with gold rims and that
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the shots were fired from the van while it was moving. See R. 34-4 (Exh. 2 at 2-B). This
contradicted testimony from the prosecution’s witnesses that the shooter was in a gray conversion
van and that the shooter exited the van during the course of the shooting. See R. 11-12 (Trial Tr.,
7/20/04, at 33:11-14) (Scott Test.); id. at 70:16-23 (Graham Test.); R. 11-13 (Test. Tr., 7/20/04, at
75:18-77:5) (Graham Test.); id. at 117:7-13 (Riley Test.). Because there was no physical evidence
linking Daniel to the scene of the crime and, thus, the prosecution’s case hinged on these witnesses’
ability to identify Daniel at the shooting by virtue of the presence of his van, Muex’s contradiction
of the van description was of great potential utility to the defense.
Both Muex and O’Neil also testified that two or three young men approached the victim’s
car on foot after the shooting occurred. See R. 34-4 (Exh. 2 at 2-A, 2-B). This directly contradicted
the testimony of at least two of the prosecution’s witnesses, who said that the shooter emerged from
the van during the course of the shooting and removed the item from the victim’s car. See R. 11-15
(Trial Tr., 7/20/04, at 7:10-12, 8:1-12, 9:10-12) (Melton Test.); R. 11-13 (Trial Tr., 7/20/04, at
120:10-15) (Riley Test.). Moreover, this contradiction exposes the weakness of counsel’s
justification for not pursuing Muex and O’Neil as potential defense witnesses because Muex’s and
O’Neil’s statements actually undermined the prosecution witnesses’ testimony that might support
a finding of felony murder. Muex’s and O’Neil’s statements suggest that the removal of the box
from the victim’s vehicle was unrelated to the shooting—or at least not perpetrated by the shooter.
Indeed, if the opposite were true, or if it was at least clear that these witnesses bolstered the
prosecution’s case, it would seem strange that the prosecution had not elicited their assistance. At
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the very least, defense counsel should have clarified whether these witnesses could offer any
potentially damaging testimony to bolster the prosecution’s case in order to be prepared to rebut it,
particularly given the minimal effort involved. See Rompilla v. Beard, 545 U.S. 374, 385-86 (2005)
(concluding counsel’s failure to review file containing defendants’ criminal history in order to
counter the prosecution’s case constituted deficient performance).
The minimal effort required to investigate Muex’s and O’Neil’s utility to the defense also
distinguishes this case from the Supreme Court’s decision in Richter. In Richter, the Supreme Court
considered a claim of ineffective assistance of counsel premised on counsel’s failure to elicit the
assistance of various experts to provide analysis of the types and patterns of blood found at the crime
scene. In that case, Richter was convicted of the murder of Patrick Klein (“Klein”) in large part
based on testimony from Joshua Johnson (“Johnson”), who had called 911 and was present at the
scene of the crime, also with gun shoot wounds, when the police arrived. Richter, 131 S. Ct. at 781.
Richter’s defense centered on refuting Johnson’s version of the events by contending that another
man, Christian Branscombe (“Branscombe”), had shot Klein in self defense after Branscombe was
attacked by Klein and Johnson. Id. at 782. Richter contended that if counsel had secured a blood
expert on the matter, the “expert could have testified that the blood in Johnson’s doorway could not
have come from Johnson and could have come from Klein, thus suggesting that Richter’s version
of the shooting was correct and Johnson’s a fabrication.” Id. at 789. The Supreme Court concluded
that counsel’s failure to secure the experts did not constitute deficient performance because counsel
was reasonable in determining that the risks that the blood evidence might undermine Richter’s
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version of the events justified not pursuing that forensic evidence. Id. at 789-90. In so doing, the
Court recognized that “[w]hen defense counsel does not have a solid case, the best strategy can be
to say that there is too much doubt about the State’s theory for a jury to convict.” Id. at 791.
While there are arguably some similarities between Richter and the present case, Richter is
sufficiently distinguishable so as to make it inapplicable here. It is true that in Richter defense
counsel made a decision not to pursue evidence because of its potential to harm the defense and that
counsel in this instance provided a similar justification for not investigating Muex and O’Neil.
However, in Richter the foregone investigation would have required a substantial commitment of
resources, as commission of a blood expert would have been a costly undertaking. The Court
reasoned that counsel was justified in deciding to allocate precious and limited defense resources
elsewhere, and to focus instead on “draw[ing] attention to weaknesses in [the state’s experts’]
conclusions.” Id. In this instance, however, the effort required for counsel to conduct at least a
preliminary investigation of Muex and O’Neil was minimal. Counsel was provided police reports
with the witnesses’ contact information and, therefore, counsel could have at least attempted to
contact the witnesses by telephone to explore their testimony and determine their utility to the
defense. Even if counsel suspected that these witnesses might be harmful to the defense, a simple
phone call to confirm the validity of these suspicions would have had no impact on counsel’s ability
to pursue other avenues of defense.
Based on the foregoing, we conclude that counsel’s failure to investigate the only two
unbiased witnesses to the murder constitutes deficient performance under both Wiggins and
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Strickland. See Wiggins, 539 U.S. at 527-28 (concluding state-court conclusion that “merely
assumed that the investigation was adequate . . . was objectively unreasonable”).
2. Prejudice
The fact that Daniel’s counsel’s performance fell below objective standards of reasonableness
is not, however, the end of our inquiry. We must consider whether Daniel was prejudiced by his
counsel’s error under AEDPA’s deferential standard of review. Before doing so, it is important to
emphasize the proper bounds within which such analysis must operate.
The purpose of federal habeas review under AEDPA is to “guard against extreme
malfunctions in the state criminal justice systems” and thus we are not to utilize it as “a substitute
for ordinary error correction through appeal.” Richter, 131 S Ct. at 786 (internal quotation marks
omitted). For this reason, when reviewing the reasonableness of a state court’s application of clearly
established federal law, we are to “presum[e] that state courts know and follow the law,” Woodford
v. Visciotti, 537 U.S. 19, 24 (2002), and to uphold “[the] state court’s determination that a claim
lacks merit . . . so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision,” Richter, 131 S. Ct. at 786. We must be careful to distinguish “an unreasonable
application of federal law . . . from an incorrect application of federal law” as AEDPA authorizes
us only to correct the former, not the later. Id. at 785 (internal quotation marks omitted). In short,
“even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.”
Id. at 786. Furthermore, we look only to the Supreme Court’s prior decisions in determining whether
the state court unreasonably applied clearly established federal law because “circuit precedent does
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not constitute ‘clearly established Federal law, as determined by the Supreme Court’” and “[i]t
therefore cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, --- U.S. ---,
132 S. Ct. 2148, 2155 (2012) (internal quotation marks omitted); see also Renico v. Lett, 559 U.S.
---, 130 S. Ct. 1855, 1865-66 (2010).
In assessing whether a petitioner has satisfied the prejudice prong of the Strickland analysis,
the Supreme Court has emphasized that “the Strickland inquiry requires . . . probing and fact-specific
analysis.” Sears v. Upton, --- U.S. ---, 130 S. Ct. 3259, 3266 (2010). The Court has concluded that
a state court’s prejudice determination was “unreasonable insofar as it failed to evaluate the totality
of the available . . . evidence” in determining whether, absent the error, there “existed a reasonable
probability that the result . . . would have been different.” Williams v. Taylor, 529 U.S. 362, 397-98
(2000); see also Lafler v. Cooper, --- U.S. ---, 132 S. Ct. 1376, 1391 (2012) (holding petitioner
satisfied the prejudice prong of the Strickland analysis).5 Where “a verdict or conclusion [is] only
5
The Michigan Court of Appeals correctly articulated the standard for prejudice under
Strickland as requiring Daniel to demonstrate “a reasonable probability that the result of the
proceeding would have been different” but for counsel’s errors. Daniel, 2005 WL 3440436, at *1.
Later in its analysis, however the Michigan court incorrectly restated this standard in concluding that
Daniel “has not met his burden of proving that the outcome of his case would have been different
if his counsel had . . . called other witnesses to testify.” Id. at *3; see also id. at *3 n.2 (“Defendant
does not make any argument, however, to support that . . . the outcome of his trial would have been
different.”). Although neither party has raised this issue before this court, this statement by the
Michigan Court of Appeals is an incorrect statement of law because Strickland requires only that a
petitioner demonstrate that “it is reasonably likely the result would have been different” not “that
counsel’s actions more likely than not altered the outcome.” Richter, 130 S. Ct. at 792 (internal
quotation marks omitted). The Supreme Court in the past has remanded cases for determination
whether a petitioner was prejudiced by counsel’s errors under the correct Strickland standard where
the state court articulated the proper prejudice standard, but then deviated from it in application of
Strickland to the case before it. See Sears, 130 S. Ct. at 3265-66 (concluding that the state court
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weakly supported by the record [it] is more likely to have been affected by errors than one with
overwhelming support in the record” because the failure of counsel to pursue a defense capable of
instilling “reasonable doubt respecting guilt” can make the difference between conviction and
acquittal. Strickland, 466 U.S. at 695-96.
The case against Daniel admittedly is weak in several important respects. First, the
prosecution presented no physical evidence linking Daniel to the scene of the crime or to the
commission of the shooting. Instead, the prosecution built its case solely on the testimony of
witnesses linking Daniel to the scene of the crime. The prosecution’s four key witnesses equivocated
in their testimony placing Daniel at the scene of the crime, and several of the witnesses provided
internally inconsistent testimony. Scott testified that he saw Daniel’s van—a brown conversion
van—at the scene of the murder, R. 11-12 (Trial Tr., 7/20/04, at 12:15-18, 14:1-3), but Scott later
retracted this testimony and suggested instead that the van might have been gray, id. at 33:11-22,
37:5-10. Although Scott’s most definitive basis for connecting Daniel to the crime was his
testimony that Daniel called him shortly after the murder and said “yep, yep, yep, yep” and then hung
failed to apply the proper prejudice inquiry as the Supreme Court has “never limited the prejudice
inquiry under Strickland to cases in which there was only ‘little or no mitigation evidence’
presented”). The Supreme Court has recognized also, however, that “the difference between
Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters ‘only
in the rarest case.’” Richter, 130 S. Ct. at 792. Accordingly, and because the issue has not been
raised by the parties, we conclude that despite the Michigan court’s imprecise language, the court
was considering Daniel’s Strickland claim under the proper standard that it first articulated in its
opinion. See Holland v. Jackson, 542 U.S. 649, 654-55 (2004) (“As we explained in [Woodford v.]
Visciotti[, 537 U.S. 19, 24 (2002)], § 2254(d) requires that state-court decisions be given the benefit
of the doubt’” because “[r]eadiness to attribute error is inconsistent with the presumption that state
courts know and follow the law.” (internal quotation marks omitted)).
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up the phone, id. at 17:12-18:8, the prosecution did not present phone records corroborating that
Scott actually received this call. Two other witnesses, Graham and Melton, reported seeing Daniel’s
gray van at the scene of the crime and seeing Daniel driving the van earlier in the day, but both
equivocated on the point of whether they were certain they saw Daniel driving the van when the
shooting occurred. R. 11-13 (73:7-11, 100:1-11, 103:21-104:9, 107:3-10) (Graham Test.); R. 11-15
(5:16-21, 14:13-15:14, 32:13-21) (Melton Test.). Riley testified that she saw a “big,” “gray” van at
the scene of the crime, R. 11-13 (117:7-13), but stated that she could not identify the passenger or
the driver, id. at 123:9. Thus, while the prosecution undeniably presented evidence connecting
Daniel to the crime, that evidence was far from air tight and certainly left potential for reasonable
doubt.
This inconclusive testimony was further weakened by the fact that each of the prosecution’s
witnesses was biased in some way, either by virtue of friendship with the victim and/or by offering
statements to the police only after having been brought in based on charges against them. Scott
offered information to the police only after he had been taken into custody on a gun charge. R. 11-12
(Trial Tr., 7/20/04, at 36:1-2, 37:20-22). Graham was a friend of Mitchell’s, but not of Daniel’s, id.
at 67:3-7; 69:12-17; R. 11-13 (Trial Tr., 7/20/04, at 91:5-12), and provided the police with a
statement only after he was arrested for a parole violation, id. at 103:12-16. Riley also knew
Mitchell well, id. at 124:22-23, and the prosecutor admitted at closing arguments that Riley may
have stretched her testimony as a result of her relationship with Mitchell, R. 11-15 (Trial Tr.,
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7/26/04, at 71:5-7). Melton was Mitchell’s friend, id. at 3:7-13, and did not provide a statement until
he was picked up by police, id. at 20:21-21:19; 25:6-11.
In spite of these weaknesses and inconsistencies, however, the fact-finder in Daniel’s bench
trial “found” the prosecution’s witnesses to be “by and large, . . . credible.” Id. at 98:9-13. At the
Ginther hearing, the judge further explained that he found Scott’s testimony as to Daniel calling
Scott immediately after the murder and stating “yep, yep, yep” to be “the most damning evidence
against” Daniel. R. 17 (Ginther Hr’g, at 60:22-25). While the statements by Muex and O’Neil did
in some ways contradict testimony presented by the prosecution’s witnesses, these contradictions
were not so startling as to undermine fundamentally the prosecution’s case.
Although Muex and O’Neil contended that the van in question was white, not gray, this
contradiction is of limited utility because the shooting occurred at dusk. As light continually faded
from the street, shadows could have altered the apparent color of the van, causing witnesses to
assume that the van was white when in fact it was gray, or vice versa. Indeed, the fact-finder was
not bothered by the fact that the prosecution’s key witness shifted from testifying that the van was
brown to testifying that the van was gray, perhaps for this very reason. Had Muex and O’Neil
testified that the van was an obviously different color, such as red, or that the shooter was driving
a small compact car, their testimony might have had a greater impact on the weight of evidence
presented. However, given their statements with an inconsistency possibly attributable to the setting
sun, we cannot say that the state court was unreasonable in determining that there was not a
reasonable probability that the statements’ inclusion would have impacted the outcome of the trial.
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The second difference between Muex’s and O’Neil’s statements and the trial testimony was
that Muex and O’Neil said that several boys, and not the shooter, removed the box from the victim’s
vehicle after the murder. This is admittedly a material difference. However, the judge in the bench
trial found Daniel guilty of second-degree murder, not first-degree felony murder, and therefore
made no factual finding as to who removed the box from the victim’s car and whether this was
connected to the shooting. R. 15 (Trial Tr., 7/26/04, at 99:7-15). The practical result is that this
factual inconsistency is therefore largely irrelevant and could have served only to undermine further
the credibility of the prosecution’s witnesses. Given that there were already a large number of
inconsistencies in the prosecution’s witnesses’ testimony—inconsistencies that the trial judge
acknowledged, but nevertheless concluded did not undermine their credibility—it was reasonable
for the state court to determine that further contradictions would have been cumulative.6 As a result,
we cannot conclude that the state court was unreasonable in determining that there was no reasonable
probability that introduction of this evidence would have impacted the outcome of the trial.
We cannot deny that, were we evaluating prejudice outside of AEDPA’s confines, we likely
would reach a different result. Counsel’s failure even to attempt to contact the only two unbiased
witnesses to the murder is, in our view, deplorable. The evidence against Daniel was weak because
the prosecution’s case was premised entirely on testimony from biased witnesses who the trial court
6
Moreover, not even Muex’s and O’Neil’s statements were perfectly consistent. Muex’s
statement indicates that three boys approached the victim’s vehicle after the shooting, R. 34-4 (Exh.
2-B, Muex Stmt.), while O’Neil’s statement indicated that there were only two boys who approached
the vehicle, id. (Exh. 4, O’Neil Stmt.).
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recognized “have some contradictions in their testimony.” R. 11-15 (Trial Tr., 7/26/04, at 98:10-11).
Muex and O’Neil could have weakened the prosecution’s case by providing contradictory testimony
with impartiality that the prosecution’s material witnesses lacked. However, our task today is not
to consider ab initio whether Daniel’s counsel’s performance was prejudicial under Strickland. We
are limited to deciding whether the state court’s Strickland determination was an unreasonable
application of clearly established Federal law. Because we cannot conclude that the state court’s
decision was so unreasonable, we must affirm the decision of the Michigan Court of Appeals.
III. CONCLUSION
Based on the foregoing, we REVERSE the judgment of the district court granting Daniel’s
petition for a writ of habeas corpus, and REMAND for further proceedings consistent with this
opinion.
25