Hargrave-Thomas v. Yukins

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hargrave-Thomas v. Yukins No. 02-2152 ELECTRONIC CITATION: 2004 FED App. 0208P (6th Cir.) File Name: 04a0208p.06 PROSECUTING ATTORNEY, COUNTY OF WAYNE, Detroit, Michigan, for Appellant. Andrea D. Lyon, DePAUL UNIVERSITY COLLEGE OF LAW, Chicago, Illinois, UNITED STATES COURT OF APPEALS Bridget M. McCormack, MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ NELSON, J., delivered the opinion of the court, in which COOK, J., joined. CLAY, J. (pp. 14-20), delivered a separate KYLLEEN HARGRAVE- X dissenting opinion. THOMAS, - _________________ Petitioner-Appellee, - - No. 02-2152 - OPINION v. > _________________ , - DAVID A. NELSON, Circuit Judge. This is an appeal JOAN YUKINS, - from an order granting a writ of habeas corpus. The key issue Respondent-Appellant. - is whether the state trial court’s refusal to hold an evidentiary - hearing on certain ineffective assistance claims which the N petitioner had asserted in a timely motion for a new trial Appeal from the United States District Court constituted “cause” for the petitioner’s subsequent failure to for the Eastern District of Michigan at Flint. assert a different ineffective assistance claim in her direct No. 00-40171—Paul V. Gadola, District Judge. appeal. We conclude that the denial of an evidentiary hearing on the particular ineffective assistance claims that were Argued: October 30, 2003 asserted initially did not constitute cause for the delay (which proved to be fatal) in asserting the new ineffective assistance Decided and Filed: July 6, 2004 claim. Accordingly, and because the procedural default cannot be excused on other grounds, we shall reverse the Before: NELSON, CLAY, and COOK, Circuit Judges. grant of the writ.

_________________ I

COUNSEL After a bench trial in a Michigan state court, the petitioner, Kylleen Hargrave-Thomas, was found guilty of first degree ARGUED: Joseph A. Puleo, OFFICE OF THE murder and arson. The court determined that early one PROSECUTING ATTORNEY, COUNTY OF WAYNE, morning Ms. Hargrave-Thomas entered the home of her Detroit, Michigan, for Appellant. Andrea D. Lyon, DePAUL boyfriend while he was sleeping, stabbed him in the heart UNIVERSITY COLLEGE OF LAW, Chicago, Illinois, for with a knife she had taken from his kitchen, and set his bed on Appellee. ON BRIEF: Joseph A. Puleo, OFFICE OF THE fire. She was sentenced to life in prison.

No. 02-2152 Hargrave-Thomas v. Yukins 3 4 Hargrave-Thomas v. Yukins No. 02-2152

Ms. Hargrave-Thomas moved for a new trial, arguing, order her immediate release or, in the alternative, to allow among other things, she had been denied effective assistance discovery and to hold an evidentiary hearing. of counsel by reason of the fact that her trial lawyers had neglected to move for the suppression of certain evidence and The state argued, in response, that consideration of the new had failed to object to alleged prosecutorial misconduct. Ms. ineffective assistance claim was barred by M.C.R. Hargrave-Thomas asked the court to hold an evidentiary 6.508(D)(3), Ms. Hargrave-Thomas having failed to establish hearing if it could not grant the requested relief on the “good cause” for not raising the claim on appeal and “actual existing record. prejudice” resulting from the allegedly ineffective assistance.1 Hargrave-Thomas replied that she could not have raised the The prosecution opposed the motion and argued that an failure-to-investigate claim on appeal because the facts evidentiary hearing was unnecessary. The acts or omissions supporting that claim were not in the trial record and were not of counsel cited by Ms. Hargrave-Thomas were already known to her at the time. matters of record, the prosecution maintained, and the record showed they lacked merit. The trial court accepted the The trial court denied the motion for relief from judgment prosecution’s argument and denied the motion for a new trial on both procedural and substantive grounds. First, the court without conducting an evidentiary hearing. held that Ms. Hargrave-Thomas “fail[ed] to establish ‘good cause’ for not raising” the new ineffective assistance claim on Ms. Hargrave-Thomas then appealed her conviction, appeal. The court then addressed the merits of the claim and asserting the same ineffective assistance claims she had raised rejected it on the ground that an attorney’s failure to in her motion for a new trial. She also moved for a remand to investigate “do[es] not constitute ineffective assistance of the trial court for an evidentiary hearing. The state court of counsel.” The court did not hold an evidentiary hearing. appeals denied the remand motion “for failure to persuade the Court of the necessity of a remand at this time.” The court went on to affirm Ms. Hargrave-Thomas’ conviction, holding among other things that Hargrave-Thomas had not established 1 that she had been prejudiced by the alleged deficiencies in her M.C.R.6.508(D)(3) provides, in part, that “[t]he court may not grant lawyers’ performance. The Michigan Supreme Court denied [post-appeal] relief to the defendant if the motion Ms. Hargrave-Thomas’ application for leave to appeal. *** “(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and Next, represented by new counsel, Ms. Hargrave-Thomas sentence or in a p rior motion under this subchapter, unless the filed a motion with the trial court seeking post-appeal relief defendant demonstrates from judgment under Chapter 6.500 of the Michigan Court Rules. The motion raised a new claim of ineffective “(a) good cau se for failure to raise such grounds on assistance of trial counsel – one that Ms. Hargrave-Thomas appeal or in the prior motion, and acknowledged had not been raised in her motion for a new “(b) actual prejudice from the alleged irregularities that trial or in her appeal. This new claim was based on her trial supp ort the claim for relief. counsel’s alleged failure to investigate the case and interview *** witnesses. Ms. Hargrave-Thomas asked the trial court to “The court may wa ive the ‘go od cause’ requirement of subrule (D)(3)(a) if it concludes that there is a significant possib ility that the defendant is innocent of the crime.”

No. 02-2152 Hargrave-Thomas v. Yukins 5 6 Hargrave-Thomas v. Yukins No. 02-2152

Ms. Hargrave-Thomas sought leave to appeal, but both the II court of appeals and the supreme court denied leave on the ground that Hargrave-Thomas had failed “to meet the burden In general, a federal court may not consider a claim for of establishing entitlement to relief under MCR 6.508(D).” habeas corpus relief if the claim was procedurally defaulted in state court – i.e., if the last state court to render a judgment Ms. Hargrave-Thomas then filed her federal court petition in the case rejected the claim because it was not presented in for a writ of habeas corpus. The petition asserted four accordance with the state’s procedural rules. See, e.g., Harris grounds for relief, one of which was a tripartite ineffective v. Reed, 489 U.S. 255, 262 (1989). A procedurally defaulted assistance claim. The claim was based on (1) trial counsel’s claim may be considered in federal habeas corpus proceedings alleged failure to investigate and interview witnesses, (2) the only if the petitioner either shows “cause” for his failure to failure to move to suppress evidence, and (3) the failure to comply with the state’s procedural rules and “prejudice” object to alleged prosecutorial misconduct. With respect to resulting from the alleged violation of federal law or shows the failure-to-investigate branch of the ineffective assistance that the federal court’s refusal to consider the claim will result claim, the state responded that the Michigan courts had in a “fundamental miscarriage of justice.” Coleman v. rejected the claim on procedural grounds and Ms. Hargrave- Thompson, 501 U.S. 722, 750 (1991); see, e.g., Harris, 489 Thomas had not shown “cause” for her procedural default. U.S. at 262. Prior to the hearing on Ms. Hargrave-Thomas’ petition, the The question presented in the case at bar is whether the district court instructed counsel for both parties to be prepared district court erred in ruling that “cause” and “prejudice” to discuss what the court perceived as a “Catch-22.” Because excused the procedural default of Ms. Hargrave-Thomas’ Ms. Hargrave-Thomas’ requests for an evidentiary hearing failure-to-investigate claim. The district court’s application were denied, the court said, she was not able to raise her of the “cause and prejudice” rules must be reviewed de novo. failure-to-investigate claim on direct appeal. And because she See, e.g., Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). had not raised the failure-to-investigate claim on direct Because we are reviewing a federal court’s application of appeal, she was barred from raising it in her collateral legal rules, and not the state courts’ adjudication of the claim, proceeding. “It thus appears,” the district court said, that “the we are not called upon to determine whether any state court state procedural rules prevented Petitioner from raising her decision “was contrary to, or involved an unreasonable failure-to-investigate claim until she reached this Court.” application of, clearly established Federal law.” 28 U.S.C. § 2254(d). Such a determination would become necessary if After argument, the district court concluded that the denial we were to conclude that the failure-to-investigate claim is of the requests for an evidentiary hearing constituted “cause” not procedurally barred – i.e., if we were to reach the merits for Ms. Hargrave-Thomas’ procedural default. The court of the claim. For reasons to which we now turn, however, we further concluded that Hargrave-Thomas was prejudiced by conclude that Hargrave-Thomas’ claim is procedurally barred. her trial attorneys’ failure to investigate. The court therefore ordered that Hargrave-Thomas be granted a new trial or be A released from custody. (The court rejected Hargrave- Thomas’ other claims for relief, including the remaining It seems clear that the last state court to render judgment in branches of her ineffective assistance claim.) The state has Ms. Hargrave-Thomas’ case rejected her failure-to-investigate filed a timely notice of appeal. claim on procedural grounds. Ms. Hargrave-Thomas, it will

No. 02-2152 Hargrave-Thomas v. Yukins 7 8 Hargrave-Thomas v. Yukins No. 02-2152

be recalled, did not present the claim on direct appeal before the denial of Ms. Hargrave-Thomas’ requests for an raising it in her collateral motion for relief from judgment. evidentiary hearing constituted “cause” for her failure to raise That omission violated a state procedural rule, Michigan the failure-to-investigate claim on direct appeal. This Court Rule 6.508(D)(3), which generally precludes relief conclusion, we believe, was erroneous. from judgment “if the motion . . . alleges grounds for relief, other than jurisdictional defects, which could have been raised In People v. Ginther, 212 N.W.2d 922, 925 (Mich. 1973), on appeal from the conviction and sentence . . . .” The the Supreme Court of Michigan held that a criminal defendant Michigan Supreme Court, like the trial court and the court of should move for a new trial and seek to make a separate appeals, cited M.C.R. 6.508(D) in rejecting Hargrave- factual record in the trial court if the trial record does not Thomas’ failure-to-investigate claim. cover the claims he wishes to raise on appeal. Ms. Hargrave- Thomas followed that procedure with respect to her original Our precedents establish that the state supreme court’s one- claims of ineffective assistance – i.e., the claims that her trial sentence order – an order saying simply that Ms. Hargrave- attorneys should have moved to suppress evidence and should Thomas “failed to meet the burden of establishing entitlement have objected to alleged prosecutorial misconduct. The trial to relief under MCR 6.508(D)” – “was based on an court declined to hold an evidentiary hearing (and the court of independent and adequate state procedural rule.” Simpson v. appeals declined to remand for such a hearing), presumably Jones, 238 F.3d 399, 407 (6th Cir. 2000); cf. Burroughs v. because the claims then in question could be disposed of on Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002), modified, 35 the existing record. Fed. Appx. 402 (6th Cir. 2002). Despite its brevity, the order constituted a “reasoned” judgment that adequately explained Ms. Hargrave-Thomas’ position seems to be that she should its procedural basis. Because the Michigan Supreme Court have been granted a Ginther hearing to develop an ineffective “expressly stated” that Hargrave-Thomas’ claim was “barred assistance claim different from the claims she raised in her by MCR 6.508(D),” see Simpson, 238 F.3d at 408, the federal motion for a new trial and on direct appeal. We find no basis courts may not review that claim absent “cause and prejudice” for this position in Michigan law. Ginther authorizes the or a “fundamental miscarriage of justice.” See Harris, 489 creation of a record to support claims which the defendant U.S. at 262-63. “wishes to urge on appeal” – not claims which the defendant has expressed no wish to urge on appeal. Ginther, 212 B N.W.2d at 925. Neither Ginther nor, to our knowledge, any other Michigan authority permits the use of an evidentiary The “cause” standard in procedural default cases “requires hearing to illuminate claims which have not been asserted or the petitioner to show that ‘some objective factor external to to unearth claims of which the defendant may be unaware.2 the defense impeded counsel’s efforts’ to raise the claim in state court.” McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Such 2 Our understanding of Michigan law on this point accords, we factors may include “interference by officials,” attorney error believe, with that of the M ichigan Supreme Court. In rejecting Ms. rising to the level of ineffective assistance of counsel, and “a Hargra ve-Tho mas’ failure-to-investigate claim on the basis of procedural showing that the factual or legal basis for a claim was not default, that court necessarily determined that the refusal to hold a Ginther reasonably available.” Id. at 493-94 (internal quotation marks hearing did not constitute “good cause” for the default. See M.C.R. omitted). As we have seen, the district court concluded that 6.50 8(D )(3). In the Supreme Court’s view, therefore, the trial court was not required to hold a hearing for the purpose of developing unraised

No. 02-2152 Hargrave-Thomas v. Yukins 9 10 Hargrave-Thomas v. Yukins No. 02-2152

Had Ms. Hargrave-Thomas raised the failure-to-investigate We are not persuaded, in short, that the state courts’ refusal claim in her motion for a new trial, and had she requested a to order a Ginther hearing constituted “cause” for Ms. Ginther hearing in connection with that claim, we have no Hargrave-Thomas’ procedural default. Both “cause” and reason to suppose that her request would not have been “prejudice” must be shown when a habeas petitioner seeks to granted. Under the circumstances, we believe that it was Ms. excuse a procedural default, see Carrier, 477 U.S. at 494-95, Hargrave-Thomas’ failure to raise the claim, and not any so we need not decide whether Hargrave-Thomas has shown misguided action of the state courts, that caused the “prejudice” resulting from her trial attorneys’ alleged failure procedural default. Ms. Hargrave-Thomas never having to investigate. See Smith v. Murray, 477 U.S. 527, 533 alleged ineffective assistance on the part of her post-trial and (1986). appellate counsel, this failure does not constitute an “objective factor external to [her] defense.” Carrier, 477 U.S. C at 488. As we have said, a procedurally defaulted claim may be Ms. Hargrave-Thomas contends that she had no way of reviewed in habeas proceedings despite the absence of a knowing about her failure-to-investigate claim when she filed showing of “cause” if such review is necessary to avoid a her new trial motion; she contends, in other words, that “the fundamental miscarriage of justice. See, e.g., Coleman, 501 factual . . . basis for [the] claim was not reasonably available” U.S. at 750. The “fundamental miscarriage of justice” test is to her at that time. Id. We are not persuaded. Even if met only in the “extraordinary case” where “a constitutional Hargrave-Thomas had no meaningful communication with violation has probably resulted in the conviction of one who her trial attorneys about the preparation of her case, she knew is actually innocent.” Carrier, 477 U.S. at 496; see Schlup v. from her attendance at trial that the attorneys did not call any Delo, 513 U.S. 298, 321-22 (1995). “To establish the witnesses – a fact that might easily lead one to suspect requisite probability, the petitioner must show that it is more inadequate preparation. Moreover, the attorney representing likely than not that no reasonable juror would have convicted Ms. Hargrave-Thomas after the trial could have interviewed him” in the light of the evidence that was not presented at the trial attorneys to discover any potential claims.3 And trial. Schlup, 513 U.S. at 327. Hargrave-Thomas was able to raise the failure-to-investigate claim in her motion for relief from judgment, after all, Applying this standard, we are unable to conclude that Ms. without having had the benefit of an evidentiary hearing. Hargrave-Thomas has shown it probable that she is actually innocent. Hargrave-Thomas relies primarily on five affidavits, each of which was executed about six years after the events at issue.4 None of the affiants testified live at the hearing on the habeas petition. claims.

3 Ms. Hargrave-Thomas contends that her post-trial and appellate 4 counsel had no duty to investigate potential claims that were not apparent The district court found these affidavits sufficient to show prejudice from the trial record. Regardless of whether this contention (which the resulting from the alleged failure to investigate. Without commenting on state disputes) is correct, it seems clear that no co urt rule or trial court that finding, we note that the “fundam ental miscarriage of justice” test ruling prevented Hargrave-Thom as’ cou nsel from cond ucting such an requires a petitioner “ to make a stronger showing than that needed to investigation. establish prejudice.” Schlup, 513 U.S. at 327.

No. 02-2152 Hargrave-Thomas v. Yukins 11 12 Hargrave-Thomas v. Yukins No. 02-2152

According to the affidavit of Deborah Smulsky, a co- There are substantial inconsistencies, however, between worker, Ms. Hargrave-Thomas said on the day before the Mr. Sibu’s affidavit – executed six years after the fact – and murder that the decedent, Joe Bernal, had proposed marriage statements he made closer in time to the murder and arson. the previous night. Hargrave-Thomas argues that this At Ms. Hargrave-Thomas’ preliminary examination, Sibu said evidence undercuts the prosecution’s theory as to motive – that he saw a police car and spoke with a police officer at 4:30 namely, that Bernal had spurned Hargrave-Thomas. But there a.m., and that he was not sure whether that was the day of or is no necessary conflict between Ms. Smulsky’s testimony the day after the fire. He also said he was “positive” that Mr. and the prosecution’s theory. Hargrave-Thomas could have Bernal’s garage door was closed when he spoke with the misled Smulsky. Or Bernal could have proposed one day and officer; in his affidavit he stated that the door was three- retracted the proposal the next. Because Smulsky’s testimony quarters open. Moreover, Sibu told police on the day of the does not compel a finding that Hargrave-Thomas lacked fire that when he delivered the paper at about 4:30 that motive, we think a reasonable factfinder could have convicted morning “there were no cars in the driveway or the street, and Hargrave-Thomas despite the new evidence. he didn’t notice anything unusual.” Presented with these inconsistencies, a reasonable juror could easily find Mr. Ms. Hargrave-Thomas’ sons, Nathan and John, said in their Sibu’s latest account unpersuasive. affidavits that their mother awoke them on the day of the murder at 6:15 a.m. and 6:30 a.m. respectively, and that she In sum, we cannot say that “no juror, acting reasonably, seemed to be behaving normally then. Dennis Hewitt, would have voted to find [Ms. Hargrave-Thomas] guilty” in Nathan’s guidance counselor, similarly swore that Hargrave- the light of the proffered affidavits. Schlup, 513 U.S. at 329. Thomas was not upset or agitated when she met with him The other evidence cited in Hargrave-Thomas’ brief – none between 7:30 and 8:00 that same morning. This evidence of which directly exculpates her – also fails to compel a might have aided the defense at trial by showing that finding of actual innocence.5 We conclude that the Hargrave-Thomas was calm and composed within an hour or “miscarriage of justice” exception does not excuse Hargrave- two after Mr. Bernal’s bed is thought to have been set on fire. Thomas’ procedural default. Calmness does not always mean innocence, however, and the probative value of this evidence, we believe, falls short of The order granting Ms. Hargrave-Thomas’ petition for a what is required. writ of habeas corpus is REVERSED, and the case is

Finally, Wesley Sibu, a newspaper delivery person, stated in his affidavit that he saw “a man in a uniform” – possibly a policeman or fire-fighter – at Mr. Bernal’s house at 4:30 on 5 the morning of the murder. The man told him that there had M s. Hargrave-Thomas points to a polygraph test flunked by her been a fire, but Mr. Sibu did not see any police cars or fire former boyfriend, Bob Stone. The results of that test indicate that Mr. Stone answered one or more of the fo llowing questions untruthfully: trucks. These facts could suggest that the “man in a uniform” (1) Do you know for sure who killed Joe? (2) Did you kill Jo e? (3 ) Did was the perpetrator. The district court found Sibu’s affidavit you assist in any way to cover up this crime? (4) Are you withholding “especially significant” because other evidence suggested that from me any information concerning the death of Joe? (All of Stone’s another potential suspect, Ms. Hargrave-Thomas’ former answers were “no.”) Because the test did not determine which of the boyfriend, “may have been falsely representing himself as a questions were answered untruthfully, this evid ence does not directly exculpate Hargrave-Thom as. It could prove nothing more, for example, police officer.” than that Hargrave-Thomas confessed to Stone.

No. 02-2152 Hargrave-Thomas v. Yukins 13 14 Hargrave-Thomas v. Yukins No. 02-2152

REMANDED to the district court for entry of an order ________________ dismissing the petition. DISSENT ________________

CLAY, Circuit Judge, dissenting. The question before this Court is whether the district court erred in ruling that there was cause and prejudice to excuse the procedural default of Petitioner’s ineffective assistance of counsel claim. In analyzing that claim, we must consider whether the trial court erred in denying Petitioner’s three requests for evidentiary hearings, which were needed to determine whether facts existed to support the failure-to-investigate element of Petitioner’s ineffective assistance of counsel claim. Because Petitioner successfully established cause and prejudice to overcome her procedurally defaulted claim, albeit through the district court’s evidentiary hearing, I would affirm the grant of Petitioner’s writ of habeas corpus. Since a petitioner can generally demonstrate cause if she can present a substantial reason to excuse the default, Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994), a showing of such cause must ordinarily turn on whether the petitioner can establish that some objective factor external to the defense impeded counsel’s efforts to comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 486-89 (1986). Here, Petitioner argues that she was prohibited from asserting her ineffective assistance of counsel/failure-to- investigate claim on direct appeal since factual support was lacking in the trial record. During Petitioner’s direct appeal, she moved for a Ginther hearing three times, all which were denied.1 Because those hearings were denied, the direct

1 Under Ginther, the Michigan Supreme Court requires a defendant on direct appeal to request an evidentiary hearing in the state trial court when it intends to raise ineffective assistance of counsel and lacks the factual supp ort in the record. People v. Ginther, 212 N.W.2d 922, 925 (Mich. 1973 ).

No. 02-2152 Hargrave-Thomas v. Yukins 15 16 Hargrave-Thomas v. Yukins No. 02-2152

appeal was limited to the issues contained in the trial record, when an ineffective assistance of counsel claim arises. See which excluded Petitioner’s failure-to-investigate claim. Id.; People v. Barnett, 414 N.W.2d 378, 382 (Mich. App. Ct. see also People v. Avant, 597 N.W.2d 864, 870 (Mich. Ct. 1978) (holding that the “Court will not ‘second-guess’ matters App. 1999). of trial strategy, nor assess the competency of counsel through the use of hindsight”); see also United States v. Brown, 276 During proceedings in connection with Petitioner’s habeas F.3d 211, 217-18 (6th Cir. 2002) (deferring a review of an petition in federal district court, the court allowed time for ineffective assistance of counsel claim to a post conviction additional discovery and an evidentiary hearing. After proceeding when looking to dismiss a federal conviction, additional testimony and argument, the district court found where the record was not adequately developed). This Court that Petitioner’s counsel was “manifestly and flagrantly has previously recognized the importance of the development ineffective for failure to investigate or call witnesses or of a full record when assessing an ineffective assistance of present evidence.” At trial, Petitioner’s defense counsel, counsel claim. Smith v. Hofbauer, 312 F.3d 809, 821, n.2 Rene Cooper, and co-counsel, Nicholas Venditelli, received (citing Ginther for the proposition that “a defendant who no compensation for Petitioner’s case. The defense did not wishes to advance claims that depend on matters not of the present a theory of the case, made no opening statement and record can properly be required to seek at the trial level an put forth no evidence. During closing arguments, attorney evidentiary hearing for the purpose of establishing his claim Cooper stated that the prosecution’s proof amounted to . . . except in the rare case where the record manifestly shows nothing more than innuendos and speculation, and thus that the judge would refuse a hearing; in such a case the formed an insufficient basis upon which to find petitioner defendant should seek on appeal, not a reversal for his guilty. However, defense counsel subsequently conceded that conviction, but an order directing the trial court to conduct the the prosecution had proven that “the opportunity was there,” needed hearing”). This was precisely the district court’s logic when referring to Petitioner’s alleged involvement in the in granting Petitioner time for discovery prior to its ruling on crime. her habeas petition. An ineffective assistance of counsel claim can supply the Had any one of Petitioner’s three Ginther hearing requests cause that, together with prejudice, would excuse a procedural been granted, there is a substantial likelihood that Petitioner’s default. Murray, 477 U.S. at 488. It is apparent from the ineffective assistance of counsel claim would have revealed record that Petitioner’s trial counsel was inadequate and the ineffective assistance of counsel received by Petitioner as ineffective, which should have been reasonably apparent to a result of Petitioner’s trial attorney’s complete failure to the trial court, or any reviewing court. The state court may properly investigate defense witnesses and cross-examine have had insufficient evidence of ineffective assistance of prosecution witnesses. The reason these facts were not counsel to grant relief to Petitioner, but certainly had a uncovered until the district court’s evidentiary hearing was sufficient basis to grant a Ginther hearing. because of the improvident reasoning and decisions of the state court, which deemed Petitioner’s ineffective assistance Although once a defendant asserts a claim of failure-to- of counsel claims to be without merit. The Respondent and investigate upon direct appeal, a Ginther hearing is warranted, the majority opinion inappropriately speculate as to what the grant of an evidentiary hearing is generally otherwise information would have come out of any one of Petitioner’s discretionary. 212 N.W.2d at 925. There is a strong three requested Ginther hearings had Petitioner not been presumption in favor of courts engaging in a factual analysis denied the hearings; however, Respondent, and the majority,

No. 02-2152 Hargrave-Thomas v. Yukins 17 18 Hargrave-Thomas v. Yukins No. 02-2152

cannot say that these external factors were not the cause of determining the judgment’s result. Id. (citing Ylst v. Petitioner’s procedural default.2 Nunnemaker, 501 U.S. 797, 803 (1991)). Therefore, to decide a procedurally defaulted claim the federal court must Furthermore, when Petitioner’s procedurally defaulted “determine [whether] a petitioner failed to comply with a state claim is properly examined, Petitioner is entitled to a review procedural rule; and it also must analyze whether the state of the “cause and prejudice” analysis in which the Michigan court based its decision on the state procedural rule.” Id. at trial court engaged, with respect to Petitioner’s failure-to- 406. investigate portion of her ineffective assistance of counsel claim. The majority opinion maintains that the district court It is undisputed that Petitioner’s first attempt to argue impermissibly considered the merits of Petitioner’s claim and ineffective assistance of counsel based on a failure-to- that we are to “review the federal court’s application of legal investigate was raised in the state court collateral appeal and rules” only, and are to reach the merits of Petitioner’s claims not the direct appeal. Petitioner argues that the district court only if we conclude that “the failure to investigate claim is correctly looked to the November 23, 1998, Michigan Circuit not procedurally barred.” Court ruling as the last court opinion to provide a reasoned decision for the dismissal of Petitioner’s request for relief Nevertheless, it is well settled that a prisoner seeking regarding counsel’s failure to investigate, basing its denial on habeas relief in federal court must have presented the claim the state prohibition in M.C.R. 6.508 (D), and also addressing upon which he seeks relief to the state appellate courts. the merits of Petitioner’s claim as it performed a “cause and Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir. 2000). If such prejudice” analysis. Respondent claims, and the majority a claim is procedurally defaulted in state court, that agrees, that the district court erred in looking to the November procedural default carries over to federal court, precluding 1998 decision because the Michigan Supreme Court order, habeas review. Simpson v. Jones, 238 F.3d 399, 405-06 (6th dated April 28, 2000, was the last court decision in this matter Cir. 2000). In order for the claim to be barred in federal and did not address the cause or prejudice exceptions to a court, however, the last state court rendering a judgment in procedural bar, or discuss the merits of Petitioner’s habeas the case must have done so on adequate and independent state request. grounds, evidenced by the existence of a state procedural bar This Court in Burroughs v. Makowski, 282 F.3d 410, 413 (6th Cir. 2002), held that the reviewing federal court, when 2 Petitioner brings to the Court’s attention Massaro v. United States, determining whether petitioner’s claim was procedurally a Supreme Court holding stating that federal courts, in determining barred, must look to the last state court decision to see if federal habeas petitions for ineffective assistance of counsel, need not be claims were denied based upon a state procedural bar, even if precluded from reviewing such a claim on collateral review when not the ruling was brief and did not explicitly reference the raised first on direct appeal. 538 U.S. 500, 504 -05 (2003). T he Court particular section of the state statute on which its judgment is discussed policy determinatio ns concerning why the requirement of a direct appellate review prior to collateral review may undermine the based. Id. There, the last court to consider the matter, the purpo se of such a claim when ad equate factual support in the trial record Michigan Supreme Court, based its denial on the state may be lacking. Id. at 507 -08. T he Court also went on to distinguish this procedural bar of M.C.R. 6.508 (D), but not specifically procedural holding from that which would be followed by states, stating subpart (3) of (D); however, this Court found that the that a “growing majority of state courts now follow the rule we adopt Michigan Supreme Court and the previous Michigan Court of today.” Id. at 508 (citing Commonwealth v. Grant, 813 A.2d 726, 735-38 n.16 (Pa. 20 02) (cataloging other states’ case law adopting this position)). Appeals’ decisions presented sufficient explanations that their

No. 02-2152 Hargrave-Thomas v. Yukins 19 20 Hargrave-Thomas v. Yukins No. 02-2152

rulings were based on the procedural default. Id. This case with prejudice her petition for habeas relief; however, this was subsequently remanded for a “cause and prejudice” would be in contravention of this Court’s procedural default analysis, to determine whether petitioner’s claim warranted analysis and the requirement of a “cause and prejudice” habeas relief, in view of the state procedural bar. Burroughs determination for a petitioner attempting to establish an v. Makowski, 35 Fed. Appx. 402 (6th Cir. 2002) (unpublished exception to a procedurally defaulted claim when requesting table decision). habeas relief. See Burroughs, 282 F.3d at 413. This is precisely the review in which the November 1998 court’s In the instant case, the district court’s findings are similar decision engaged, and the determination upon which the to those in Burroughs, except here the court looked to the district court reversed. Therefore, even if the latter Michigan previous Circuit Court’s November 1998 opinion instead of Supreme Court decision was reviewed to determine the the latest opinions of the Michigan Supreme Court and the viability of habeas relief on the merits of Petitioner’s claim, Michigan Appellate Court, since the procedural aspects of all the district court would still need to review the reasoning of three opinions were duplicative. The early November 1998 the November 1998 decision, to find the reasoning for such opinion specifically stated that Petitioner’s claims were dismissal, or if no reasoning was present there, the court subject to a “cause and prejudice” analysis precisely because would then have had to remand for a “cause and prejudice they were not brought up on direct appeal in accordance with analysis.” Burroughs, 35 Fed. Appx. 402. M.C.R. 6.508 (D)(3)(a)(b). The district court’s reliance on the Michigan Court of Appeals or Michigan Supreme Court I therefore respectfully dissent from the majority opinion would not have differed in result, as those decisions also insofar as I believe Petitioner has shown “cause and stated that Petitioner’s claim was denied “. . . because the prejudice” to overcome the default of her claim of her defendant has failed to meet the burden of establishing counsel’s failure-to-investigate, thus warranting the district entitlement to relief under M.C.R. 6.508 (D).” This Court court’s grant of habeas relief. should then view these latter decisions of the Michigan Court of Appeals and Michigan Supreme Courts as sufficiently explaining their rulings based on the procedural bars, Burroughs, 282 F.3d at 413, found in the previous November 1998 Circuit Court decision. See Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991) (citing Ylst, 111 S.Ct. at 2595 (“[W]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same grounds”)). Moreover, since Petitioner bears the burden of showing cause and prejudice when needed, the November 1998 Circuit Court decision addressed these issues, which the district court was permitted to review. Simpson, 238 F.3d at 408. The majority argues as though the district court’s analysis of the latter Michigan state court opinions should have deemed Petitioner’s claims procedurally barred and dismissed