Hale v Howes

Filing 38

OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEROME A. HALE,
Petitioner,

CASE NUMBER: 07-12397
HONORABLE VICTORIA A. ROBERTS

v.
BARRY D. DAVIS,
Respondent.
_______________________________/
OPINION AND ORDER GRANTING
PETITION FOR WRIT OF HABEAS CORPUS
I.

INTRODUCTION
This matter is before the Court on Petitioner Jerome A. Hale’s application for writ

of habeas corpus under 28 U.S.C. § 2254. The Court concludes that Petitioner’s Sixth
Amendment right to effective assistance of counsel was violated during his state court
trial. The writ will issue unless the State takes steps to retry Petitioner within ninety
days.
II.

BACKGROUND AND PROCEDURAL HISTORY
A.

Petitioner’s Claims

On June 5, 2007, Petitioner filed a pro se habeas petition raising several claims
for relief, including claims of ineffective assistance of trial and appellate counsel. The
Court referred the petition to Magistrate Judge Paul L. Komives, who issued a report
and recommendation on November 9, 2009, recommending the Court deny the writ in
Page 1 of 50

its entirety. On January 15, 2010, Petitioner moved for an evidentiary hearing on these
claims.
On September 8, 2010, the Court issued an Order adopting the Magistrate’s
R&R in part, and granting Petitioner’s request for an evidentiary hearing in part. The
Court ordered an evidentiary hearing on the issue of ineffective assistance of trial
counsel for failure to call or investigate an alibi witness; reserved ruling on whether
Petitioner’s appellate counsel was ineffective for failing to raise these claims on appeal;
and denied habeas relief on the remainder of Petitioner’s claims.
The three claims now before the Court are whether Petitioner was denied
effective assistance of counsel when: (1) his trial counsel failed to investigate an alibi
witness; (2) his trial counsel failed to call an alibi witness; and (3) his appellate counsel
failed to raise these issues on appeal.
B.

State Court Proceedings

On January 17, 1999, Armondo Triplett was shot and killed while leaving Todd
Richardson’s house. Eighteen months later, police arrested Petitioner for Triplett’s
murder.
The prosecution claimed Petitioner shot and killed Triplett after robbing him. The
Petitioner claimed that the prosecution’s key eyewitness, Richardson, lied because
federal authorities promised to reduce his federal prison sentence of 292 months by half
for his testimony and the conviction of Petitioner.

Page 2 of 50

(1). The Trial
The State relied on two eyewitnesses who identified Petitioner as the shooter:
William Maxwell, who was with Triplett when he was shot, and Richardson, who said he
saw the shooter from inside his house. The weekend before Petitioner’s trial began,
Maxwell died, leaving Richardson as the only eyewitness.
Richardson testified to the following: During the time of the shooting, he was
trafficking narcotics, and owed Petitioner $50,000 for cocaine. Richardson never repaid
Petitioner. Sometime after the shooting, Richardson pled guilty to federal charges of
conspiracy and distribution of narcotics, and was sentenced to 292 months. However,
he began cooperating with federal authorities, and they promised to cut his sentence in
half if he testified against Petitioner. His attorney told him that to receive the sentence
reduction, federal authorities expected his testimony to result in a conviction.
On the day of the shooting, Richardson received a call from Triplett between 8
a.m. and 10 a.m. A few minutes later, Petitioner arrived at Richardson’s house.
Richardson asked Petitioner to front him a kilo of cocaine, valued at $28,000 - $30,000.
Petitioner refused, and asked Richardson to repay the $50,000. Richardson said he
told Petitioner he would get the money to Petitioner later, because he had to collect it
from people who owed him. Richardson said he also told Petitioner that Triplett was
coming to buy a kilo. Richardson said that, after hearing this, Petitioner told Richardson
not to worry about the money, Petitioner would get it himself. Apparently taking
Petitioner’s statement as a threat against Triplett’s life, Richardson testified he told
Petitioner not to shoot Triplett, and Petitioner left.
Page 3 of 50

A few minutes later, Triplett and Maxwell arrived. When they left, Richardson
heard yelling outside the house. He testified that he looked outside, and saw Petitioner
running with a gun. Richardson said he heard the gun fire, saw Triplett fall backwards,
saw Maxwell fall face down into the snow, and saw Petitioner take a bag from Triplett’s
body and run.
Richardson testified that Petitioner called him later that day, and told him to come
over and split the money he had taken from Triplett, which was about $30,000.
Richardson said Petitioner told him the shooting was accidental, and gave him $10,000
to keep quiet.
Richardson did not make a formal statement to police until March 17, 2000, more
than a year after the shooting, and after Richardson was indicted on federal narcotics
charges. This is when Richardson struck his deal with prosecutors.
Maxwell’s preliminary examination testimony was read into the record at
Petitioner’s trial. Maxwell said that on the day of the murder, at about 8:00 a.m.,
Maxwell drove Triplett from Flint to Detroit. While they were driving, Triplett called
Richardson and told him they were going to stop by his house to get directions to a
restaurant. They went to Richardson’s house, and left around 10:15 a.m. He said that,
as they were leaving, a man approached them, robbed and shot Triplett, then ran. He
identified Petitioner as the shooter.
After the shooting, Richardson and Maxwell took Triplett to the hospital, where he
died. Maxwell took about $5,000 from Triplett’s coat on the way there.

Page 4 of 50

Maxwell made several statements to police. He was considered to be a suspect,
and at first did not tell police that he had taken money from Triplett. In a later statement,
he admitted that he had.
On February 1, 2001, a jury convicted Petitioner of felony murder, in violation of
MCLA § 750.316(1)(b); and possession of a firearm during the commission of a felony,
in violation of MCLA § 750.227b. Petitioner was sentenced to mandatory life without
parole on the murder conviction, and a consecutive term of two years imprisonment on
the felony-firearm conviction.
(2). Appeals and Challenges to Petitioner’s Convictions
Petitioner presented three claims in his appeal to the Michigan Court of Appeals,
including ineffective assistance of trial counsel; however, Petitioner did not raise trial
counsel’s alleged failure to call or investigate his alibi witness.
Before the Court of Appeals decided his appeal, Petitioner filed a motion to
remand pursuant to MCR 7.211(C)(1), asking the Court of Appeals to allow the trial
court to develop the factual record for his ineffective assistance of trial counsel claims.
In this motion, he wrote that his trial counsel violated his Sixth Amendment rights, failed
to investigate and call exculpatory witnesses, and stated trial counsel’s “most crucial
error was her failure to call Alibi Witness Ms. Demetria Young, whose testimony would
have completely exonerated defendant.” He wrote that he told his attorney about these
witnesses well before trial. He attached an affidavit signed by Young, which stated that
they were together during the time of the murder. He specifically stated that he attached
the affidavit to comply with the rule, which says that the motion “must be supported by
Page 5 of 50

affidavit or offer of proof regarding the facts to be established at the hearing.” MCR
7.211(C)(1)(a).
The Court of Appeals denied the motion to remand. See People v. Hale, No.
234038 (Mich. Ct. App. Dec. 10, 2002). Two days later, it affirmed Petitioner’s
conviction and sentence. See People v. Hale, No. 234038, 2002 WL 31953819 (Mich.
Ct. App. Dec. 13, 2002).
The Petitioner sought leave to appeal both the denial of his appeal and the denial
of his motion to remand to the Michigan Supreme Court. The Michigan Supreme Court
denied Petitioner leave to appeal. See People v. Hale, 469 Mich. 861 (2003).
Petitioner then filed a motion for relief from judgment in the trial court, raising
multiple claims, including the claims currently before the Court.
The trial court denied this motion, ruling that Petitioner failed to meet the
requirements of MCR 6.508(D).1 See People v. Hale, No. 00-008301-01 (Wayne
County, Mich., Cir. Ct. Apr. 26, 2005). The trial court said the Michigan Court of
Appeals had already denied his ineffective assistance of trial counsel claim in its

1

MCR 6.508(D) states in part: The defendant has the burden of establishing entitlement
to the relief requested. The court may not grant relief to the defendant if the motion . . .
(2) alleges grounds for relief which were decided against the defendant in a prior appeal or
proceeding under this subchapter, unless the defendant establishes that a retroactive change in
the law has undermined the prior decision;
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on
appeal from the conviction and sentence or in a prior motion under this subchapter, unless the
defendant demonstrates (a) good cause for failure to raise such grounds on appeal or in the prior
motion, and (b) actual prejudice from the alleged irregularities that support the claim for relief. . .
..
Page 6 of 50

unpublished opinion on December 13, 2002, and that appellate counsel raised the claim
in Petitioner’s appeal of right. The trial court denied relief under MCR 6.508(D)(2)
because no retroactive change in the law undermined the prior decision of the Court of
Appeals.
This conclusion is only partially correct; the Court of Appeals’ December 13
decision did not address an ineffective assistance claim on the grounds of failure to
investigate or call an alibi witness. Instead, Petitioner presented this issue only in his
motion to remand, which the Court of Appeals denied in a summary order without any
reasoning on December 10, 2002.
Despite finding that the issue had already been decided by the Appeals Court,
the trial court stated that it reviewed the record, found no meritorious constitutional
claims, and declined to “second guess the strategies that either trial or appellate
counsel employed.” Id. at 1-2.
Petitioner filed an application for leave to appeal the motion for relief from
judgment in the Michigan Court of Appeals, again raising the claims before the Court.
The Michigan Court of Appeals dismissed this application, finding that it was a
successive motion. See People v. Hale, No. 263293 (Mich. Ct. App. June 30, 2005).
Upon review, the Michigan Supreme Court reversed and remanded to the Court of
Appeals because it was not a successive motion. See People v. Hale, 474 Mich. 930
(2005).
The Michigan Court of Appeals considered and denied Petitioner’s application

Page 7 of 50

because Petitioner failed to meet his burden to establish entitlement to relief under MCR
6.508(D). People v. Hale, No. 263293 (Mich. Ct. App. Feb. 10, 2006). Petitioner sought
leave to appeal to the Michigan Supreme Court but it was denied. See People v. Hale,
476 Mich. 864 (2006).
Next, Petitioner filed a motion for new trial in the trial court, raising grounds not
currently before this Court. On April 24, 2007, the trial court denied the motion,
concluding that Petitioner’s claims should have been raised on direct appeal and were
without merit. See People v. Hale, No. 00-8301-01 (Wayne County, Mich., Cir. Ct. Apr.
24, 2007). Both the Michigan Court of Appeals and Michigan Supreme Court denied
Petitioner leave to appeal, finding that the motion for new trial was a successive motion
for relief from judgment. See People v. Hale, No. 279956 (Mich. Ct. App. Sept. 13,
2007); People v. Hale, 480 Mich. 1009 (2008).
On June 5, 2007, Petitioner filed a petition for habeas corpus in this Court.
III.

ANALYSIS
Petitioner claims that his trial counsel, Deborah Ford, was ineffective because

she failed to adequately investigate and call alibi witness Demetria Young. Respondent
says these claims are barred from review because they are procedurally defaulted. The
Court agrees with Petitioner.
A.

Procedural default

Under the procedural default doctrine, when “a state prisoner has defaulted his

Page 8 of 50

federal claims in state court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims 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 demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Procedural
default may occur when a prisoner fails to present an issue to a state appellate court at
his only opportunity to do so. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). However,
“a procedural default does not bar consideration of a federal claim on either direct or
habeas review unless the last state court rendering a judgment in the case clearly and
expressly states that its judgment rests on the procedural bar.” Harris v. Reed, 489 U.S.
255, 263 (1989) (internal quotes omitted).
(1). Determining Which Rule the State Court Judgment Rests Upon
Respondent says that the claims before the Court are procedurally defaulted
because Petitioner first raised the claims in a motion for relief from judgment, which was
denied pursuant to MCR 6.508(D). Petitioner appears to concede that he first raised
the claims in a motion for relief from judgment; however, Petitioner argues he can show
that the default must be excused. Both parties are mistaken.
The parties are correct that Petitioner did not raise these claims in his brief
supporting his appeal. See People v. Hale, 2002 WL 3195381 (Mich. Ct. App. Dec. 13,
2002). Although he raised other grounds for ineffective assistance of trial counsel, he
did not raise an ineffective assistance claim on the grounds now before the Court.
Therefore, he did not fairly present the claims currently before the Court in his appeal
Page 9 of 50

brief. See Caver v. Straub, 349 F.3d 340, 346-47 (6th Cir. 2003) (“Thus, to the extent
that an ineffective assistance of counsel claim is based upon a different allegedly
ineffective action than the claim presented to the state courts, the claim has not been
fairly presented to the state courts.”).
Instead, Petitioner first raised the claims in a motion to remand filed in the
Michigan Court of Appeals while his direct appeal was pending. This motion asked the
appeals court to remand the case to the trial court so that the trial court could conduct
an evidentiary hearing on several claims, including the ones now before the Court. The
Court of Appeals denied this motion on December 10, 2002, stating: “The Court orders
that the motion to remand is denied.” Three days later, on December 13, 2002, the
Court of Appeals denied Petitioner’s appeal in its entirety.
The Petitioner appealed both the denial of his appeal and the denial of his motion
to remand to the Michigan Supreme Court. The Michigan Supreme Court issued an
order dated July 28, 2003, stating: “On order of the Court, the delayed application for
leave to appeal the December 13, 2002 judgment of the Court of Appeals is considered,
and it is DENIED, because we are not persuaded that the questions presented should
be reviewed by this Court.” The supreme court did not directly address, in this order or
any other, the December 10, 2002 motion to remand.
Petitioner next filed a motion for relief from judgment with the trial court, again
raising the claims currently before this Court. The trial court denied the motion, but
addressed only Petitioner’s failure to call an alibi witness claim and his appellate
ineffectiveness claim; the trial court did not address Petitioner’s claim that his trial
Page 10 of 50

attorney failed to investigate the alibi witness.2
The trial court wrote that the Michigan Court of Appeals already addressed and
rejected the failure to call claim on Petitioner’s appeal of right in its December 13, 2002
order.
The trial court denied relief pursuant to MCR 6.508(D)(2), because Petitioner
failed to establish any retroactive change in the law that would change the outcome of
the Court of Appeals’ decision. As discussed above, the trial court incorrectly
referenced the December 13 order instead of the order denying the motion to remand,
which was addressed in the December 10th order only.
However, the parties and the Magistrate fail to acknowledge Petitioner’s motion
to remand, and mistakenly state that Petitioner first raised the claims now before the
Court in his motion for relief from judgment. Respondent says that the trial court denied
the claims pursuant to MCR 6.508(D)(3), because Petitioner did not establish good
cause for failing to raise these issues in his appeal of right.
The Court reads the trial court’s order differently. The trial court specifically
denied Petitioner’s ineffective trial counsel claim under MCR 6.508(D)(2). The trial court
denied Petitioner’s other claims in the motion for relief from judgment under MCR
6.508(D)(3); however, those claims are not now before the Court.
Moreover, the trial court was not mistaken when it relied on MCR 6.508(D)(2).

2

Despite the trial court’s failure to address this claim, Petitioner’s motion for relief from
judgment fairly raises a failure to investigate claim with respect to Demetria Young.
Page 11 of 50

Although Petitioner did not raise these claims in his appeal brief, he did raise them in his
motion to remand. The Sixth Circuit holds that raising a claim in a motion to remand
properly presented to the Michigan courts is sufficient to fairly present the claims within
it to the state courts, because this is “a procedurally proper approach to securing review
of the issues,” whether they were presented in the appeal brief or not. Elmore v. Foltz,
768 F.2d 773, 775 (6th Cir. 1985); Cottenham v. Jamrog, 248 Fed. Appx. 625, 633-34
(6th Cir. Aug. 21, 2007).
Because Petitioner fairly presented his claims to both the Michigan Court of
Appeals and the Michigan Supreme Court, the trial court was not mistaken when it
concluded that the Michigan Court of Appeals already considered and denied the
claims, even if it was mistaken about the date of the decision.
(2). The Claims Are Not Procedurally Defaulted
Next, the Court must determine whether the trial court’s reliance on MCR
6.508(D)(2) to bar consideration of the claims in the motion for relief from judgment
renders the claims procedurally defaulted. The Court concludes that it does not.
“A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to
comply with a state procedural rule; (2) the state courts enforce the rule; (3) the state
procedural rule is an adequate and independent state ground for denying review of a
federal constitutional claim; and (4) the petitioner cannot show cause and prejudice
excusing the default.” Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010).
Here, Petitioner does not meet the first element of the test; MCR 6.508(D)(2) is

Page 12 of 50

not a procedural rule that presents an adequate bar to habeas review. See Hicks v.
Straub, 377 F.3d 538, 558 n.17 (6th Cir. 2004). Instead of a procedural bar, this rule “is
a collateral estoppel rule which prohibits a trial court from reconsidering a claim already
decided against a defendant on direct appeal.” Skinner v. McLemore, 2011 WL
2192632 at * 3 (6th Cir. June 7, 2011).
“A claim is procedurally barred when it has not been fairly presented to the state
courts for their initial consideration–not when the claim has been presented more than
once.” Cone v. Bell, 129 S.Ct. 1769, 1781 (2009). Instead, “when a state court declines
to revisit a claim it has already adjudicated, the effect of the later decision upon the
availability of federal habeas is ‘nil’ because ‘a later state decision based on ineligibility
for further state review neither rests upon procedural default nor lifts a pre-existing
procedural default.’” Id. (quoting Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). The
invocation of this rule does not indicate that the claims are procedurally defaulted, but,
to the contrary, shows they are ripe for federal review. Id. Thus, the trial court’s failure
to review the merits of Petitioner’s claims for the reason that the claims were already
decided “creates no bar to federal habeas review.” Id.
Petitioner’s claims are not procedurally defaulted because they were fairly
presented to the state court of appeals for consideration in the motion to remand, and
appealed to the supreme court. The fact that Petitioner presented these same claims in
his motion for relief from judgment does not render them procedurally defaulted.

B.

Standard of Review
Page 13 of 50

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs all
habeas petitions filed after its effective date. Lindh v. Murphy, 521 U.S. 320, 326, 327
(1997). Under AEDPA, in order to obtain habeas relief, a state prisoner must show that
the state adjudication of the claim on the merits:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established 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).
A decision is contrary to clearly established federal law “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 decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A
decision is based on an unreasonable application of 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 state prisoner’s case.” Id.
Possible error by the state court is not sufficient to justify granting the habeas petition;
the state court’s application of federal law “must have been ‘objectively unreasonable.’”
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quoting Williams, 529 U.S. at 409).
However, § 2254(d) “by its own terms is applicable only to habeas claims that
were ‘adjudicated on the merits in State court . . . .’” Maples v. Stegall, 340 F.3d 433,
436 (6th Cir. 2003). When a state court declines to address the merits of a habeas
Page 14 of 50

petitioner’s properly raised claim, federal habeas review is not subject to the deferential
standard mandated in 28 U.S.C. § 2254(d). See Cone v. Bell, 129 S. Ct. 1769, 1784
(2009); Evans v. Hudson, 575 F.3d 560, 564 (6th Cir. 2009) (“When AEDPA deference
does not apply, we apply the preAEDPA standard of review and review questions of law
de novo and questions of fact for clear error.”).
The parties do not contest the Magistrate’s conclusion that § 2254(d) applies to
Petitioner’s ineffective trial counsel claims. This is curious, given that the parties appear
to assume that the state courts did not address the merits of Petitioner’s claims due to a
procedural bar. “Nevertheless, a party cannot ‘waive’ the proper standard of review by
failing to argue it.” Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008) (overruled on
other grounds by Cullen v. Pinholster,131 S.Ct. 1388 (2011)). This Court has a duty to
determine and apply the appropriate standard of review in all cases.
Here, the Court of Appeals’ order denying the motion to remand merely stated:
“The Court orders that the motion to remand is denied.” Although this is a summary
denial with no reasoning, the Court must presume that the state court adjudicated
Petitioner’s claims on the merits. Harrington v. Richter, 131 S.Ct. 770, 784 (2011)
(“When 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.”). Because there is no indication that the state court’s denial was not on the
merits or was based on procedural rules, AEDPA deference applies to Petitioner’s
claims.

Page 15 of 50

C.

The Evidentiary Hearing & Cullen v. Pinholster

The Court held an evidentiary hearing on December 8, 2010. After the hearing,
the parties filed supplemental briefs discussing the merits of the claims in light of the
evidence submitted.
However, after the hearing and supplemental briefing were complete, the
Supreme Court decided Cullen v. Pinholster, 131 S.Ct. 1388 (2011), which cast
significant uncertainty on the role of federal evidentiary hearings in state habeas cases.
Cullen holds that federal court review of a claim governed by 28 U.S.C. §
2254(d)(1) “is limited to the record that was before the state court that adjudicated the
claim on the merits.” Id. at 1398. In other words, “evidence later introduced in federal
court is irrelevant” to a federal court’s review of a state court’s merits based decision. Id.
at 1400. Thus, those seeking habeas relief in federal court “must overcome the
limitation of § 2254(d)(1) review on the record that was before [the] state court.” Id.
Although the full implications of Cullen are unclear, under this Court’s reading of
the case, the Court is required to ignore the evidence submitted at the hearing when
determining whether Petitioner meets the standard set forth in 28 U.S.C. § 2254(d)(1).
Despite this, the Court believes that granting the evidentiary hearing was proper.
Evidentiary hearings are governed by 28 U.S.C. § 2254(e)(2). In an earlier decision,
this Court decided that Petitioner was entitled to this hearing under § 2254(e)(2).
Although Cullen certainly addresses how and when evidence may be considered, it did
not decide or address when an evidentiary hearing is proper. Id. at 1411 n.20 (“[W]e

Page 16 of 50

need not decide whether § 2254(e)(2) prohibited the District Court from holding the
evidentiary hearing or whether a district court may ever choose to hold an evidentiary
hearing before it determines that § 2254(d) has been satisfied.”). While Cullen seems
to drastically limit the consideration of the evidence from the hearing, it did not decide
that it was error to grant the hearing.
Moreover, that the Court may not consider the evidence when determining
whether Petitioner meets § 2254(d)(1) does not mean that the evidence may not be
used for any purpose. However, the majority opinion for Cullen did not directly address
the proper uses of evidence from a properly granted evidentiary hearing, although it
suggested that some remain.
However, the majority made clear that a petitioner must show he is eligible for
habeas relief under the rigorous standard set forth in 28 U.S.C. § 2254(d)(1) before
evidence submitted in federal court may be considered. See id. at 1401 (28 U.S.C. §
2254(e)(2) “continues to have force where § 2254(d)(1) does not bar federal habeas
relief”).
Therefore, the Court must determine whether any of Petitioner’s claims satisfy §
2254(d)(1) before determining whether, and in what capacity, it may consider evidence
from the hearing.

D.

The State Court’s Decision Is an Unreasonable Application of Clearly
Established Supreme Court Precedent Under § 2254(d)(1).

Page 17 of 50

(1). Clearly Established Law
Petitioner argues that his trial counsel rendered constitutionally ineffective
assistance in two ways: (1) by failing to conduct a reasonable investigation of his alibi
witness; and (2) by failing to present his alibi witness at trial. Petitioner also says that
his appellate counsel was ineffective for failing to raise theses claims in his direct
appeal.
The Sixth Amendment to the United States Constitution guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defense.” U.S. Const., amend. VI. This Sixth Amendment right to
counsel is the right to effective assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 685 (1984).
The United States Supreme Court set forth a two part test for determining
whether a habeas petitioner received constitutionally ineffective assistance of counsel in
Strickland v. Washington. First, Petitioner must prove that his attorney’s performance
was deficient. Strickland, 466 U.S. at 687. An attorney’s performance is deficient if it
“fell below an objective standard of reasonableness.” Id. at 688. That is
“reasonableness under prevailing professional norms.” Id.
[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. In any ineffectiveness
case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.
Page 18 of 50

Strickland, 466 U.S. at 690-91.
However, “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Id. at 690.
Nevertheless, “[j]udicial scrutiny of counsel’s performance must be highly
deferential,” and includes “a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at 689. “[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Id. at 690.
Second, Petitioner must show he was prejudiced by this deficiency. Strickland,
466 U.S. at 692. To prove prejudice, Petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. However, Petitioner does not have
to show “that counsel’s deficient conduct more likely than not altered the outcome in the
case.” Id. at 693.
(2). Strickland and 28 U.S.C. § 2254(d)
Because the Court must give deference to the state court’s decision under §
2254(d), “[t]he pivotal question is whether the state court’s application of the Strickland
standard was unreasonable.” Harrington v. Richter, 131 S.Ct. 770, 785 (2011). “The
standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when
the two apply in tandem, review is ‘doubly’ so.” Id. at 788 (citations omitted).

Page 19 of 50

“Where a state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no reasonable basis for the
state court to deny relief. This is so whether or not the state court reveals which of the
elements in a multipart claim it found insufficient . . . .” Id. at 784.
“Under § 2254(d), a habeas court must determine what arguments or theories
supported or . . . could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 786.
If fairminded jurists could disagree, then the state court’s application of Strickland was
not unreasonable.
(3). Petitioner’s Claims
Petitioner argues that trial counsel performed deficiently because she failed to
investigate and call his alibi witness. The Court agrees.
a. Interpreting Strickland
It is well established that under Strickland counsel has a duty to conduct a
reasonable investigation into the facts of a defendant’s case, or to make a reasonable
determination that an investigation is unnecessary. See Wiggins v. Smith, 539 U.S. 510,
522-23 (2003). This “includes the obligation to investigate all witnesses who may have
information concerning his or her client’s guilt or innocence.” Towns v. Smith, 395 F.3d
251, 258 (6th Cir. 2005).

Page 20 of 50

Moreover, there is “no question that the failure to reasonably investigate
potentially exculpatory witnesses satisfies the deficiency prong of the Strickland test.”
Clark v. Redman, 865 F.2d 257 (6th Cir. 1988).
“The focus in failure-to-investigate claims, then, is the reasonableness of the
investigation (or lack thereof).” English v. Romanowski, 602 F.3d 714, 726 (6th Cir.
2010). Therefore, the relevant issue before the Court “is not whether counsel’s choices
were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470,
481 (2000).
Furthermore, while decisions as to what evidence to present and whether to call
certain witnesses are generally presumed to be matters of trial strategy, “strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on the
investigation.” Strickland, at 690-91; see also Caldwell v. Lewis, 2011 WL 915764 (6th
Cir. March 16, 2011) (counsel was ineffective for failing to call alibi witness promised in
opening statement where his only justification for not doing so was that he believed he
had completely discredited one of the prosecution’s two main witness on cross
examination).
b. The State Court’s Decision that Trial Counsel Was Not Deficient Is an
Unreasonable Application of Strickland
Because the state court did not explain the reasons for denying this claim, the
Court “must determine what arguments or theories supported, or . . . could have

Page 21 of 50

supported, the state court’s decision,” and “ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding” of
Strickland. Harrington, 131 S.Ct. at 786. If there is any reasonable argument that
“reasonable professional judgments support the limitations on [Ford’s] investigation,”
Petitioner’s claim must fail. Strickland, 466 U.S. at 691.
Additionally, the Court must determine whether there is any reasonable argument
that counsel’s decision not to call Young, made after an insufficient investigation, was a
reasonable professional judgment. If there exists a reasonable argument that Ford’s
decision was a reasonable professional judgment, Petitioner’s claim must fail.
After reviewing the record and relevant evidence before the state court, the Court
can find no reasonable argument, under the facts known at the time, that the limitation
on the investigation into Petitioner’s alibi witness was the result of reasonable
professional judgment. Ford’s failure to conduct a reasonable investigation of a known
alibi witness fell below an objective standard of reasonableness, and the state court’s
decision concluding otherwise is an unreasonable application of Strickland.
Furthermore, the Court can find no reasonable argument that Ford’s decision not
to call Young, which was made after an objectively unreasonable investigation, was the
result of reasonable professional judgment. Instead, Ford chose to abandon any
investigation into the alibi witness “at an unreasonable juncture, making a fully informed
decision . . . impossible.” Wiggins v. Smith, 539 U.S. 510, 528 (2003). Ford’s failure to
conduct a reasonable investigation of a known alibi witness rendered her failure to call

Page 22 of 50

the alibi witness a mere result of her own lack of preparation and investigation, not a
reasonable, tactical choice. This violated Petitioner’s Sixth Amendment right to the
effective assistance of counsel, and the state court’s decision concluding otherwise is
an unreasonable application of Strickland.
To reach this determination, the Court considers only the relevant evidence
before the state court. This includes the affidavit of Demetria Young that Petitioner filed
in support of his motion to remand. It says that Petitioner and Young went to a club
together for a date the night before the murder. They left the club together early the
next morning (around 1:00 a.m.) and went to Young’s house, where they spent the night
together. Young says Petitioner stayed there with her continuously through the morning
and until about 3:00 p.m. Because the murder occurred that morning between 10 and
12 a.m. at a different location, if Young were to be believed, Petitioner could not have
committed the murder.
In the affidavit, Young also says she approached Petitioner’s attorney at a court
hearing and told her that Petitioner was with her during the time of the murder. Young
says his attorney told her that she was not needed, and Young was never contacted
about the case.
Also in the state court record is a witness list and notice of alibi filed by Ford
sometime after the calendar conference. The witness list names Young as the first
witness. The notice of alibi says that Petitioner was with Young at her home at the time
of the shooting.

Page 23 of 50

Also before the state court were Petitioner’s representations in his motion to
remand. He says that he told Ford about Young “well before the start of trial.” Mot. at 8.
The record also includes the following conversation between the Petitioner, his
trial counsel, and the trial judge during the trial after the prosecution rested:
MS. FORD:

I filed a witness list on my client, two of them. I have
my investigator sitting to my right, Terry Feys.
.

.

.

MS. FORD:

My client did ask for some witnesses. We both tried
to find them. I have subpoena forms here. My file, I
was ready, willing, and able to subpoena people. It
was based on my determination that they didn’t want
to be here. So, we come up blank. Blank faces,
blank answers. So, that’s why I didn’t do that. Mr.
Hale, you understand that, right?

DEFENDANT:

Yes, ma’am.

MS. FORD:

I’m referring particular to Brenda Hill and – it’s really
Lavon Hill. You understand that, right?

DEFENDANT:

Yes, ma’am.

MS. FORD:

That’s why they’re not here. You agree with the
reason.

DEFENDANT:

Yes, ma’am.

MS. FORD:

There were others, and I’m not going to go through
the whole list.
.

.

.

MS. FORD:

There was alibi, there were people in the discovery –

THE COURT:

Alright.

MS. FORD:

For a variety of reasons, either through the
unavailability, [un]willingness, or change in theory
between my client and I, they’re not here.

Page 24 of 50

THE COURT:

Very well.
.

.

.

THE COURT:

So, you’ve had a chance to go through that with your
client –

MS. FORD:

We’ve been through everything.
.

MS. FORD:

.

Is that right?

DEFENDANT:

.

Yes, ma’am.

Trial Tr., dated January 30, 2001, at 161-163.
At Petitioner’s sentencing, the following conversation occurred between
Petitioner, his trial counsel, and the trial judge:
DEFENDANT:

I had witnesses that was[sic] willin’ to come to court
and for some apparent reason, my lawyer took it upon
herself not to call ‘em. I don’t know what the reason–

THE COURT:

Who are these persons? Name them for me and what they
would have testified to.

DEFENDANT:

My alibi witness, Miss Demetria Young, would have
testified that I was with her the day that this crime was
committed.
And I informed my lawyer of that, and when her and
my friend met in the courtroom, they had differences,
for whatever reasons it was, I don’t know. But Miss
Ford didn’t like her attitude for some reason, and
that’s the reason why Miss Ford failed to call her to
come testify.
.

MS. FORD:

.

.

And why his fiancé didn’t come – he’s referring to
something, a conversation he wasn’t privy to with the
fiancé on the calendar conference date, why his lover
didn’t come to court on his trial date befuddles me. I
mean, she’s mad at me and she stands up her man,
that’s a new one on me.
Page 25 of 50

But I’ll talk further if there’s a Ginther Hearing.
He and I had agreed not to do the alibi[.]
DEFENDANT:

She agreed. I didn’t agree.

MS. FORD:

He agreed.

DEFENDANT:

That was my alibi witness. I didn’t agree on nothin’.
.

DEFENDANT:

.

She had a problem with my alibi witness coming out
the gate when they first met. She told me this,
personally, that I don’t like your girl ‘cause she think I
want you or somethin’ like that, and I don’t want to call
her to court.
.

DEFENDANT:

.

.

.

This is, you know what I’m sayin’, this is one of my
witnesses that had the jury . . . heard her testimony
might have had differences on finding me guilty sayin’
that I was with her, even if they don’t believe her or
did believe her, this would have put a reasonable
doubt in the jury mind.

Sentencing Tr., dated March 8, 2001, at 9-12.
It is unclear from the January 30, 2001 trial transcript, why Ford failed to call
Young. Ford did not refer to each witness by name whom she would not call, nor did
she specify the reason that each would not be called. Ford stated that some would not
be called because they didn’t want to come to trial, she couldn’t find them, they were
unavailable or because of trial strategy.
However, in the March 8, 2001 sentencing transcript, Ford says she did not call
Young because she and Defendant agreed not to put on an alibi defense. Ford did not
say that Young could not be found, didn’t want to come to court, or was unavailable.
Ford confirmed that she spoke with Young at the calendar conference (which was held
Page 26 of 50

on August 25, 2000), but did not mention whether she attempted to speak with her at
any point afterwards. Ford said that Petitioner agreed with her decision not to put on an
alibi defense. Petitioner told the court he had not agreed.
Because the state court did not explain its denial of Petitioner’s failure to
investigate claim, the Court must determine what arguments or theories may have
supported the state court decision, and see whether those theories are consistent with
Supreme Court precedent.
It is undisputed that the evidence before the state court establishes that Ford
knew of Petitioner’s alleged alibi witness and his desire (at least initially) to mount an
alibi defense. The evidence also shows that Ford and Young spoke on one occasion,
after a calendar conference approximately five months before the beginning of
Petitioner’s trial. And, according to Young’s affidavit, the content of which is not called
into question by any other facts in the state court record, in the five months leading up
to trial, Ford never contacted or interviewed Young. None of the facts indicates that
Ford made any attempt, but was unable, to contact or investigate Young, or that Ford
had any reason to believe, based on Petitioner’s statements or actions, that an
investigation into Young would be “fruitless or even harmful.” Strickland, at 691.
Under these facts, it appears that the state court must have determined that it
was either not deficient performance for an attorney to fail to interview or investigate a
known alibi witness, or that Petitioner was not prejudiced by this deficiency. If so, this
was an unreasonable application of Strickland.

Page 27 of 50

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 69091. Failure to investigate an alibi witness, when the alibi witness offered to testify on the
defendant’s behalf, is objectively unreasonable. See Poindexter v. Booker, 301 Fed.
Appx. 522, 528-529 (6th Cir. 2008) (where alibi witnesses approached trial counsel, and
trial counsel was not receptive or interested in their testimony, and did not investigate
the alibi witnesses further, trial counsel’s investigation was objectively unreasonable);
Avery v. Prelesnik, 548 F.3d 434, 437-438 (6th Cir. 2008) (where trial counsel’s only
attempt to contact alibi witness was through an investigator who left it up to the witness
to contact counsel, and trial counsel never personally attempted to contact the witness,
trial counsel’s investigation was objectively unreasonable, because at “bare minimum”
counsel should put forth a reasonable effort to contact witnesses).
Here, after one brief, in court meeting, initiated by the witness, Ford apparently
made no investigation into Young. “A purportedly strategic decision is not objectively
reasonable ‘when the attorney has failed to investigate his options and make a
reasonable choice between them.’” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005)
(quoting Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991)).
Moreover, even if the state court believed that Petitioner agreed with Ford’s
decision not to investigate Young, as Ford said Petitioner did, this does not mean that
Ford’s failure to investigate was objectively reasonable. See Ward v. United States,
995 F.2d 1317, 1321-22 (6th Cir. 1993) (Defendant’s acquiescence to trial counsel’s
performance should not inform Strickland analysis, which is “judicial evaluation of
Page 28 of 50

counsel’s performance in accordance with an objective standard of reasonableness as
measured against the prevailing norms of the legal community.”). Based on the
evidence the state court had before it, Ford neither had the information she needed to
make a reasonable decision not to investigate, nor was informed enough to advise
Petitioner that his alibi defense should be abandoned.
Without creating additional facts which were not in the state court record, the
Court fails to see any arguments or theories which show the state court’s decision on
this issue was reasonable. Counsel’s conduct fell below an objective standard of
reasonableness, and it was an unreasonable application of Strickland for the state court
to decide otherwise.
Furthermore, Ford’s deficient investigation rendered her decision not to call
Young objectively unreasonable; she had no reasonable basis upon which to make this
decision.
Generally speaking, deciding not to present a specific defense or witness in
support is a strategic decision that, if reasonable, amounts to sound trial strategy; here,
however, there are no facts indicating how Ford came to the conclusion that this
strategy was reasonable without at least interviewing Young. And, even if the state
court theorized that Petitioner agreed to this strategy, it is unclear how Ford could have
fully informed her client of the potential risks of an alibi defense if she failed to fully
investigate it.

Page 29 of 50

There are simply no facts in the state court record that show Ford investigated, in
any capacity, a known alibi witness; that her client may have agreed with this strategy
does not render her performance any less deficient under Strickland’s objective
reasonableness standard. The decision, and advice, was simply uninformed. “A
purportedly strategic decision is not objectively reasonable ‘when the attorney has failed
to investigate his options and make a reasonable choice between them.’” Towns v.
Smith, 395 F.3d 251, 258 (6th Cir. 2005) (quoting Horton v. Zant, 941 F.2d 1449, 1462
(11th Cir. 1991)).
In the trial transcript, Petitioner appears to agree with Ford’s unclear and
unexplained reasons for not presenting witnesses. Even if he did, however, this does
not mean those reasons, or the decision itself, were justified. And, Petitioner was not in
a position to determine whether Ford’s representations and performance were
objectively reasonable or not. See Ward v. United States, 995 F.2d 1317, 1321-22 (6th
Cir. 1993).
It is difficult for this Court to identify any theory or argument under the facts
before the state court which shows that the state court’s decision was a reasonable
application of Supreme Court precedent.
If the facts alleged by Petitioner are true, the state court unreasonably applied
Strickland under 28 U.S.C. § 2254(d)(1) on both claims, when deciding that Ford’s
performance was not deficient.

Page 30 of 50

c. The State Court’s Decision that Petitioner Was Not Prejudiced by Trial
Counsel’s Deficient Performance Is an Unreasonable Application of Strickland
The Court finds that if the facts alleged by Petitioner are true, trial counsel’s
performance was deficient in both failing to investigate and call an alibi witness.
Petitioner must now show that he was prejudiced by this deficient performance, and that
the state court’s decision to the contrary was objectively unreasonable.
To prove prejudice, Petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “[A]
‘reasonable probability’ does not mean a certainty, or even a preponderant likelihood, of
a different outcome, nor even more, that no rational juror could constitutionally find [the
defendant] guilty.” Matthews v. Abramajtys, 319 F.3d 780, 790 (6th Cir. 2003) (internal
citation omitted).
Because the state court did not give reasons for its denial of Petitioner’s claims,
the Court assumes that the state court believed the deficiencies identified above were
not prejudicial to Petitioner; however, there is no reasonable argument that the failure to
investigate and call an alibi witness was not prejudicial to Petitioner. To the extent the
state court ruled otherwise, it unreasonably applied Strickland.
“To evaluate a claim of prejudice, the court must assess how reasonable jurors
would react to the additional alibi testimony had it been presented.” Avery v. Prelesnik,

Page 31 of 50

548 F.3d 434, 439 (6th Cir. 2008). However, the Court does not decide whether the jury
would be likely to believe the testimony of the alibi witness because “our Constitution
leaves it to the jury, not the judge, to evaluate the credibility of witnesses in deciding a
criminal defendant’s guilt or innocence.” Ramonex v. Berghuis, 490 F.3d 482, 490 (6th
Cir. 2007). Instead, the Court determines whether Young’s testimony, if believed,
undermines confidence in the jury verdict.
First, it is important to note that Petitioner always maintained his innocence, there
was no physical evidence linking him to the crime, and his trial counsel argued in her
closing statement that Petitioner simply was not present during the murder. Second,
the only evidence linking Petitioner to the crime was the testimony of two eyewitnesses.
One of the eyewitnesses died before trial and was, at least for a time, a suspect in the
crime. The other had a stake in Petitioner’s conviction–namely, that the witness’s own
prison sentence would be reduced.
Finally, the evidence the jury would have heard was not cumulative. The jury
was presented with absolutely no evidence of Petitioner’s alibi.3 Evidence that
Petitioner was not present during the commission of the crime is a complete defense to
the charge of felony murder, which the jury had no opportunity to consider. There is at
least a reasonable probability that the result of the trial would have been different had
counsel presented this alibi witness.

3

In fact, Ford declined to call any witnesses to testify on Defendant’s behalf.
Page 32 of 50

The facts before the state court, if true, show that Ford’s performance violated
Petitioner’s right to effective assistance of counsel. The state court’s ruling to the
contrary was an unreasonable application of Strickland.
Twenty Eight U.S.C. § 2254(d)(1) does not bar habeas relief.
E.

Consideration of Evidence from the Federal Court Evidentiary
Hearing Is Appropriate

Because 28 U.S.C. § 2254(d)(1) does not bar federal habeas relief, the Court
must next determine whether, and to what extent, the evidence submitted at the
evidentiary hearing should be considered by the Court.
In Cullen, the majority stated that § 2254(e)(2) “continues to have force where §
2254(d)(1) does not bar federal habeas relief.” Cullen v. Pinholster, 131 S.Ct. 1388,
1401 (2011). This includes, “[a]t a minimum,” when the claims were not decided by the
state court on the merits. Id. (emphasis added). However, the majority did not specify
any other situations where evidence submitted at an evidentiary hearing pursuant to §
2254(e)(2) might be properly considered.
Justice Breyer, concurring in part and dissenting in part, wrote separately to shed
some light on how §§ 2254(d)(1) and 2254(e)(2) work in the wake of Cullen. He stated:
If the state courts reject the claim, then a federal habeas court may review
that rejection on the basis of the materials considered by the state court.
If the federal habeas court finds that the state-court decision fails (d)’s test
(or if (d) does not apply), then an (e) hearing may be needed. Id. at 1412.

Page 33 of 50

Breyer went on to explain some situations in which consideration of evidentiary
hearing evidence may be necessary:
For example, if the state-court rejection assumed the habeas petitioner’s
facts (deciding that, even if those facts were true, federal law was not
violated), then (after finding the state court wrong on a (d) ground) an (e)
hearing might be needed to determine whether the facts alleged were
indeed true. Or if the state-court rejection rested on a state ground, which
a federal habeas court found inadequate, then an (e) hearing might be
needed to consider the petitioner’s (now unblocked) substantive federal
claim. Or if the state-court rejection rested on only one of several related
federal grounds (e.g., that counsel’s assistance was not “inadequate”),
then, if the federal court found that the state court’s decision in respect to
the ground it decided violated (d), an (e) hearing might be needed to
consider other related parts of the whole constitutional claim (e.g., whether
the counsel’s “inadequate” assistance was also prejudicial). There may be
other situations in which an (e) hearing is needed as well. Id.
The Court finds Justice Breyer’s explanation persuasive and his examples
particularly illustrative.
It is impossible to discern why the state court rejected Petitioner’s habeas claims;
however, the state court did not appear to deny the claim based on a procedural rule or
other state ground. Instead, it appears that the state court decided that even if the facts
Petitioner stated were true, his counsel was not ineffective. Again, it is impossible to
determine which prong of the Strickland test the state court concluded Petitioner failed
to satisfy–or whether the state believed he failed to satisfy both. For this reason, in the
Court’s § 2254(d)(1) analysis above, the Court assumed the state court determined that
Petitioner could satisfy neither prong.
Justice Breyer suggests that, because the state court’s decision was an
unreasonable application of Strickland under § 2254(d)(1), an evidentiary hearing may

Page 34 of 50

be necessary to decide whether these facts are true. Accordingly, the Court reviews the
testimony from the evidentiary hearing to decide if it supports the facts underlying
Petitioner’s claim.
F.

The Evidentiary Hearing

Petitioner testified on his own behalf and presented two other witnesses: trial
counsel, Deborah Ford; and his alleged alibi witness, Demetria Young. Petitioner
waived his attorney/client privilege for purposes of the hearing.
(1). Petitioner’s Trial Counsel Deborah Ford
Ford testified that she had an “extremely high” independent recollection of the
case, and estimated it to be at 80-90% before she reviewed the case file. Tr. 6, Dec. 8,
2010. Ford considered herself a very experienced trial attorney at the time of
Petitioner’s trial, and said she had taken first degree murder cases to trial many times.
Id.
Petitioner retained Ford to represent him after his preliminary examination in July
of 2000. Id. Ford visited Petitioner in jail. She did not ask him whether he committed
the murder, but he told her he did not. He also told her he had witnesses he wanted her
to interview. Id. at 9-10. He told her he was at the Zodiac Club the night before the
murder. However, Ford said that Petitioner’s explanation of where he was during the
time of the murder changed: Ford testified that Petitioner also told her he was with his

Page 35 of 50

girlfriend Demetria Young, but also that he was at Brenda Hill’s4 house. Ford said she
asked her investigator, Terry Feys, to help her determine whether any of Petitioner’s
claims could be confirmed. Id. at 11.
Ford said she filed two witness lists. On the first, Ford attached a notice of alibi,
identifying Demetria Young as an alibi witness. Id. at 12. Ford testified that it was part
of her pattern to file a notice of alibi whenever there was a possibility that one existed,
because she did not want to later miss the filing deadline. She never amended or
withdrew the notice of alibi. Id. at 14.
When asked what she did to locate these witnesses, Ford said she deferred to
her investigator. She testified she did not have a written report of his investigation, but
she described the witnesses as “quite illusive.” Id. at 13. When asked about her
success in locating witnesses, Ford said: “Well, it was hard because they were illusive
to find . . . . I spoke to Demetria Young in court. Terry Feys– I have in my grievance
response, I said he had a hard time locating her and getting her to respond and to call
back and to sit down and talk. I saw her in court, but as I recall it was just illusive and
vague; nothing that I felt that I could put a whole theory of defense on a murder case.
Particularly when Hale also had told me himself he had been at Anita [sic] Hill’s house
that morning; he told me that. So there were revolving defenses.” Id. at 13.
Ford said she spoke with Young only at the final conference on August 25, 2000.
Id. at 15. Ford testified that neither she nor her investigator ever obtained Young’s
4

Throughout the hearing, Brenda Hill is also referred to as Cynthia Hill. Additionally,
Ford often called Ms. Hill “Anita.”
Page 36 of 50

address or telephone number. Id. at 15. She said she asked Petitioner for Young’s
address and phone number, but he did not provide either. Id. at 16. However, the
notice of alibi Ford filed stated Young “lived on Prairie just East of Mack in the City of
Detroit.” Later, Ford admitted that she had Young’s phone number, but claimed her
investigator said he was never able to reach Young. Id. at 17. According to Ford,
Young never answered when the investigator called. Id. at 21. Ford said she did not
remember whether she ever called Young personally. Id. at 22.
Petitioner’s attorney asked Ford if Young told Ford she was with Petitioner at the
Zodiac Club during the evening before the murder, and continuously through much of
the next day (the day of the murder). Ford testified that she remembered Petitioner
telling her that, but that she did not recall Young saying it. Ford said she was unable to
pin down specifics with Young, and believed she was not credible. Id. at 19. However,
she said she did not remember the exact reason she believed Young was not credible,
but that “either she couldn’t give [Ford] her address or the exact time.” Id. at 19. Ford
described Young’s statement as “fuzzy and hazy.” Id. at 19.
However, Ford later testified that Petitioner told her he had been to Hill’s house
the morning of the murder, and that was why she did not believe Young. Id. at 30. She
said she did not call Young as a witness because she refused to let Young perjure
herself. Id. at 30-31. Ford testified that she did not even tell Young when the trial was
set to begin (although she said Young knew because she was at the calendar
conference when the date was set). The calendar conference was five months before
the trial began.
Page 37 of 50

Ford said was not sure whether she asked Young to testify at the trial, but said it
would be typical for her to ask. Ford said her investigator tried to ask Young to testify,
but he was never able to contact Young. Id. at 23. Ford said she did not subpoena
Young to come to trial because she did not think she ever got “a hard address” for
Young. Id. at 24.
Ford testified that she did not remember asking Young to sign a written
statement, and she first saw Young’s affidavit the day of the evidentiary hearing. Id. at
51-52.
Ford testified that Petitioner knew before trial that Young would not be called. Id.
at 27. Ford said this was not a change in strategy, because calling Young had never
been a part of the strategy. Id. However, Ford later testified that she had fluctuating
theories, that there were at least four different strategies. Id. Ford also testified that she
told Petitioner this strategy before trial. She was not sure when, but she went to the jail
the week before trial. Id. at 39. However, Ford was unclear on whether she told
Petitioner that Young was unavailable, or that she believed Young was lying. Id. at 3839. When asked whether Petitioner had objections to Ford’s decision not to call Young,
she said: “Not between us by the end of the trial, meaning by the end as you’re ready to
go in, no he did not object nor did he object on the record prior to the conviction. No.” Id.
at 34.
Ultimately, Ford testified that Young was unavailable and would have committed
perjury. Id. at 37-38. Despite her testimony that Young would commit perjury on the

Page 38 of 50

stand, Ford said if Petitioner had “forced” her to put Young on the witness stand, she
would have made a statement on the record that it was against counsel’s advice, and
would have called Young. Id. at 35.
Ford testified her strategy at trial was to impeach the credibility of the eye
witnesses, and to raise doubt concerning the accuracy of their identification of
Petitioner. Id. at 25-26. During her closing, Ford told the jury Petitioner was never at
the scene. Id. Young’s testimony would have been the only testimony to support this.
(2). Petitioner Jerome A. Hale
Petitioner testified that at the time of the murder in 1999, he and Demetria
Young had been dating for about 8 or 9 months. Id. at 53. They spent a lot of time
together, and they usually went to the Zodiac Club on the weekends. Id. at 54. He said
they always left together. Id.
Petitioner said he told Ford he was at the Zodiac Club with Young the evening
before the murder, and that he was with Young during the time of the murder. Id. at 55.
He told Ford that individuals at the club could corroborate that he was there, and Young
was willing to testify that he was with her at her house during the time of the murder. Id.
Petitioner also told Ford that Lavon Hill and Cynthia Hill should be witnesses, because
their house neighbored the crime scene. Id. at 56. However, Petitioner testified that the
only witness who could provide an alibi for him was Young, and that he never told Ford
otherwise. Id. He said he never told Ford different versions of where he was the day of
the murder. Id. at 73.

Page 39 of 50

Petitioner testified that he gave Ford a list of witnesses the first time she met with
him at the jail, which she wrote down. Id. at 68. He said he gave her the addresses and
phone numbers of almost all the witnesses, including Young. Id. He reiterated that he
only had one alibi witness, and that was Young. Id. at 69.
Ford told Petitioner that she had spoken with Young. Id. at 60. He said Ford
indicated that she and Young had a personality conflict during this conversation. Id.
Petitioner testified Ford never told him that she did not believe Young or that she was
not going to use Young as a witness. Id. at 61. Ford never discussed with him her belief
that Young was lying. Id. at 81. He said he did not know his witnesses were not going
to be called until the trial was over. He testified that he thought his witnesses were
being sequestered out in the hall during the trial. Id. 61.
Petitioner said it was his understanding that Ford was pursuing an alibi defense
on his behalf. Id. at 58. He said Ford never discussed a change in this strategy with him
before trial. Id. He also said that they never discussed abandoning any of his
witnesses before trial. Id. Petitioner said Ford did not question Young’s credibility, and,
in fact, told him Young was more credible than the witnesses who identified him as the
shooter. According to Petitioner, Ford said it was a matter of the eyewitnesses’
testimony against Young’s. Id. at 58-59.
When asked about the trial transcript, when Ford put on the record that she was
not going to call witnesses, and Petitioner appeared to agree, Petitioner said he
believed she was indicating that she was not going to call Lavon Hill and Brenda Hill.

Page 40 of 50

He said he was in agreement with that, because Ford said she could not locate them.
Id. at 62. However, he testified that he did not agree that Ford not call Young. Id. at 63.
Petitioner did not tell the trial court his concerns with Ford until after his
conviction. Id. at 66-67. He said he did not speak up because Ford told him not to
speak during the trial unless he was spoken to. Id. at 67. He said, “I was ignorant to the
fact . . . that I could just stand up and blurt out in the courtroom that hey, my lawyer
didn’t do what she’s supposed to until the Judge gave me the opportunity to speak . . . .”
Id. He said Ford told him to only address the court when the court addressed him. Id.
He said the first time the court asked him to speak was at sentencing, so that was when
he put his concerns on record. Id.
When questioned about the portion of the trial record where he appears to agree
that Ford discussed trial strategy with him, Petitioner said he was agreeing that they had
been over trial strategy generally. However, he said that the trial strategy included
calling his alibi witness. Id. at 72. He said he was not agreeing to any change in
strategy; they never discussed a change. He also said he still thought that Young would
be called. Id. at 73. He testified that he “didn’t know that the trial had stopped right then
and there.” Id. He testified he also “didn’t know that that time right there was the
appropriate time to voice my opinion or you know, say what I had to say.” Id.
(3). Alibi Witness Demetria Young
Young said she independently recalled that she was with Petitioner on January
16, 1999, through the night and much of the next day. She also remembered that they

Page 41 of 50

had gone to the Zodiac Club on the 16th. Id. However, she did not recall every detail of
their time together. She said it was their habit to go to the Zodiac Club almost every
weekend. Id.
Young testified that she remembered signing the affidavit. Id. at 42. She said it
was several months after Petitioner’s conviction. Id. at 48. She could not remember
who typed up the affidavit, or who gave it to her to sign. Id. at 50. She also did not
remember when it was first presented to her. Id. at 50. Young testified that if she would
have been called as a witness at Petitioner’s trial, she would have testified consistent
with her affidavit. Id. at 45. She said she and Petitioner have not been a couple for a
long time. Id. at 46. She came to the evidentiary hearing voluntarily, and was not under
subpoena. Id.
Young said she spoke with Ford only once. During that conversation, she told
Ford that Petitioner was with her during the time of the murder. She told Ford she was
willing to be a witness. Young said that when she spoke with Ford, Ford was “snappy”
with her, had a “very smart attitude,” and seemed to think she was lying. Id. at 44-45.
Young said that Ford never contacted her again, and did not tell her when the trial
would take place. Id. at 45.
Young said she did not recall Ford’s investigator ever calling her. Id. at 46.
Young said she has had the same telephone number since the1990s, and she always
tries to answer her phone because she also uses it as a business line. Id. at 45. She

Page 42 of 50

testified that she did not have her phone shut off, and she was available to anyone who
tried to contact her at that number. Id. at 78.
Young said she never contacted the police because she spoke to Ford. Id. at 47.
She said she was unaware of how the court system operated, and never approached
the prosecutor. Id.
G.

The Evidentiary Hearing Testimony Shows the Facts Alleged in
Support of Petitioner’s Claims Are True

The Court finds that the evidentiary hearing testimony shows the facts alleged by
Petitioner are true: Ford knew of his alibi witness, yet failed to conduct a reasonable
investigation, and had no reasonable basis from which to conclude that further
investigation was not necessary. To reach this determination, the Court makes several
factual findings based on its observation of the testimony of the witnesses at the
evidentiary hearing, and an assessment of their credibility. The Court considers their
credibility in light of the entire record.
First, the Court finds Young’s testimony and demeanor credible; she has no
stake in the matter, and was not personally involved with Petitioner at the time of the
hearing.5 Her testimony was consistent, and she testified at the hearing voluntarily.
The Court believes her testimony that: (1) she approached Ford about testifying on
Petitioner’s behalf; (2) she told Ford that Petitioner was with her during the time of the

5

Although the record is not clear on when Petitioner and Young stopped seeing each
other romantically, Petitioner says his relationship with Young was over before he was arrested
for this crime.
Page 43 of 50

crime; (3) she would have testified at trial, had she been asked; (4) she would have
testified that Petitioner was with her at the time of the murder, consistent with her
affidavit; and (5) she could have been reached by phone, had Ford made a serious
attempt to contact her.
Second, the Court finds Ford’s demeanor and testimony less than credible; her
testimony was vague, evasive, contradictory, implausible and self-serving. Additionally,
her hostile demeanor was in stark contrast to the other witnesses. The Court declines
to credit Ford’s testimony that: (1) she had an extremely high independent recollection
of the case; (2) Petitioner told her different versions of his whereabouts during the time
of the murder, or presented “revolving alibis;” and (3) she attempted to contact and
further investigate Young or an alibi defense. The Court believes that Ford spoke with
Young on one occasion, and immediately and unreasonably decided that she did not
believe Young, so she did not seriously attempt to investigate or contact her after that
meeting.
Ford’s testimony that she attempted to conduct a thorough investigation of
Young, but could not reach her, is undermined by her testimony that, upon first meeting
Young, she did not believe her. Ford testified that she never believed Young, and never
intended to use her during trial; therefore, it is implausible that she would continue to
investigate Young as an alibi witness. Furthermore, it is implausible that, had Ford
directed an investigator to contact Young, he was unable to do so in the five months

Page 44 of 50

between the calendar conference and the trial.6 This is particularly emphasized by the
ability of the Petitioner to contact Young ten years later using the same phone number,
and convince her to voluntarily come to an evidentiary hearing.
Ford’s testimony that her investigator told her he attempted to contact Young is
hearsay, and the Court does not find Ford’s memory on this issue any better than her
memory of the case as a whole. In fact, Ford first testified that she never even had
Young’s phone number and address before reviewing a document contradicting this.
Ford’s inability to contact Young is also implausible because Young voluntarily came
forth and spoke with Ford about her interest in testifying as an alibi witness. The Court
believes that Ford did not conduct an investigation of Petitioner’s alibi witness after
speaking with her in court once. And, this comports with Young’s testimony that neither
Ford nor Ford’s investigator attempted to contact her.
The Court does not believe that Petitioner presented Ford with more than one
alibi defense. According to Ford’s own testimony, she always filed a notice of alibi if
one was possible—this is apparently so even if she doesn’t believe the alibi witness. If
Ford filed a notice of alibi for Young, even though she didn’t believe Young and never
intended to call her, it is hard to understand why she would not do the same for the
other potential alibi witnesses Petitioner allegedly named. Based on Ford’s poor
memory and contradictory testimony, it seems more likely that Ford was simply

6

The calendar conference was on August 25, 2000. The trial began on January 29, 2001.
Page 45 of 50

confused about the facts (she often confused names, dates, and other important facts
during her testimony) and failed to accurately testify to what Petitioner told her.
It appears to this Court that Ford made no reasonable attempt to investigate
Young.
Moreover, the testimony shows that Ford had no reasonable basis to make the
decision that Young should not be called as a witness.
At the evidentiary hearing, Ford gave three reasons why she decided not to call
Young as a witness: (1) Young was not credible; (2) Young would commit perjury; and
(3) Young was unavailable. For the following reasons, as well as Ford’s demeanor
during the hearing, these reasons are inadequate to justify Ford’s strategic decision,
where, as here, the jury was not presented with the substance of the witness’s
exculpatory alibi testimony through the introduction of other competent evidence.
First, Ford said that she did not call Young because Young was incredible. When
asked why she decided that Young was incredible, Ford did not remember; however,
she said it could have been because Young did not give Ford her address or the exact
time Petitioner was with her. This is not a reasonable justification for Ford’s strategic
decision not to call Young, because there was no reasonable basis for Ford’s decision.
Ford spoke with Young only once, at Young’s behest, and more than 18 months after
the murder occurred. It would not be uncommon for an individual to need to review
records to help recall specifics after such a long period of time. Additionally, it is clear

Page 46 of 50

from Ford’s testimony that she did not remember her one encounter with Young well
enough to remember why she believed Young was incredible.
Second, Ford said her decision not to call Young was based on her belief that
Young would commit perjury. However, Ford had no basis for this decision because
she did not investigate the alleged alibi. This justification is also inconsistent with other
portions of Ford’s testimony. For example, Ford said that she did not subpoena Young
because she did not have Young’s complete address, not because Young was lying.
Ford indicated that she may have decided Young was lying because Petitioner told her
that he was at Brenda Hill’s house which neighbored Richardson’s house when the
shooting occurred; yet, in her closing statement to the jury during trial, she argued that
Petitioner was not there during the time of the murder. Certainly it would have breached
her ethical duties to present this argument had she believed that Petitioner was present
during the shooting. “While counsel has no duty to knowingly aid a perjurious defense,
there is nothing in the present record to suggest trial counsel had any such knowledge.”
Wilson v. Cowan, 578 F.2d 166, 168 (6th Cir. 1978). When she made the decision not
to call Young as a trial witness, Ford had no reasonable basis to believe Young would
fabricate trial testimony.
Third, Ford said Young was unavailable. However, Young said that she would
have testified at the trial had Ford asked her to do so. The Court does not believe that
Ford failed to call Young because she was unavailable, particularly in light of the fact
Ford also testified that she believed Young was incredible and lying, and that Ford
would not have put Young on the stand had she been available or shown up at the trial.
Page 47 of 50

The reasons given by Ford are not cogent tactical justifications for deciding not to
call Young. Although other reasons may exist that might justify Ford’s decision, it is not
appropriate for the Court to speculate as to what they might be. “Just as a reviewing
court should not second guess the strategic decisions of counsel with the benefit of
hindsight, it should also not construct strategic defenses which counsel does not offer.”
Caldwell v. Lewis, 2011 WL 915764 at *7 (6th Cir. 2011) (quoting David v. Lambert, 388
F.3d 1052, 1064 (7th Cir. 2004)). Ford’s performance in failing to call alibi witness
Young was deficient, because it was unreasonable under the circumstances and had no
cogent tactical or other justification. Caldwell, 2011 WL 915764 at *6 (“An attorney’s
failure to present available exculpatory evidence is ordinarily deficient, unless some
cogent tactical or other consideration justified it.”).
The evidence submitted at the hearing confirms the facts that Petitioner alleges,
and he is entitled to habeas relief.
H.

Appellate Counsel’s Failure to Raise These Claims on Appeal

Petitioner says that his appellate counsel was ineffective for failing to raise his
trial counsel’s ineffectiveness on the grounds discussed above in his appeal to the
Michigan Court of Appeals.
While it is true that the issues were not briefed on appeal, these claims were
properly raised, explained, and supported in the motion to remand while the appeal was
pending. Appellate counsel filed the motion to remand at Petitioner’s request. The
Court of Appeals reviewed the claims in the motion to remand, and denied relief on the

Page 48 of 50

merits. Therefore, Petitioner cannot show a reasonable probability that including these
claims in his appellate brief would have had any impact on the result of the appeal; he
cannot show prejudice.
Petitioner’s appellate counsel was not constitutionally ineffective.
IV.

CONCLUSION
Petitioner was denied the effective assistance of trial counsel in violation of his

Sixth Amendment rights, and the state court’s decision to the contrary is an
unreasonable application of clearly established Supreme Court precedent. Accordingly,
the Court CONDITIONALLY GRANTS the petition for writ of habeas corpus. The State
must either release Petitioner, or institute proceedings to retry him within 90 days of the
filing date of this Order. If the State fails to do so, Petitioner may move for an
unconditional writ seeking immediate release from custody. If the State appeals this
Order to the United States Court of Appeals for the Sixth Circuit, this Order is stayed
pending disposition of that appeal.
IT IS ORDERED.

s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge

Dated: July 27, 2011

Page 49 of 50

The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
July 27, 2011.

s/Carol A. Pinegar
Deputy Clerk

Page 50 of 50