*3 MARTIN, Circuit Judge; OLIVER, District Judge.** MARTIN, J., delivered opinion the court, in OLIVER, D.J., joined. BOGGS, (pp. 380-88), C.J. delivered separate dissenting opinion.
OPINION MARTIN, BOYCE F. JR., Circuit Judge. July 22,
On 2005, the district court granted Ege’s petition Carol for a condi- **The Oliver, Jr., Honorable Ohio, Solomon United sitting by designation. States Judge District for the Northern District death, and stabbed 1984, bludgeoned grounds corpus habeas writ tional There her. laying beside organs her (1) bite-mark Thompson’s entry at forced sign no right violated trial Ege’s state un- found door was home, back and the trial, and a fair Clause Due Process cut. had been cords phone The locked. Ege’s state (2) performance eve- on the alive seen last Thompson unconstitutionally deficient between 21, sometime February ning of The prejudice. her actual caused police investi- initial p.m. and 9:15 8:45 judgment the district appeals State no yielded April additionally concluded gation, argues grounds, on both later, years Eight evidence. definitive time-barred petition *4 reopened was however, investigation of 28 period limitations one-year with forward coming persons following result of 2244(d)(1). as For Dur- incriminating Ege. allegedly RE- and part in evidence reasons, AFFIRM we investiga- reopened of this the dis- course ing the judgment part in VERSE been that had 1992-1993, tion, court. trict February scene the murder at collected I Michigan to was submitted None time. for the first lab The crime is crime troubling case. is a This con- crime lab to was submitted investigation The initial horrific. results lab The charged to the crime. Ege was nected Defendant deficient. Thomp- and Davis fingerprints murder. yielded after years nine until others, but and Thompson sus- logical hairs of are who son and others are There connected at the trace evidence no saw defendant similar one No pects. exhumed body was No Thompson’s murder. Ege. evening scene on a mark investigate apparently links defendant physical taken in photographs visible a mark testimony that cheek her left except crime autopsy initial The that is scene. murder ais bite at the cheek victim’s was that the mark denti- concluded had report with defendant’s consistent highly murder tried Ege was mortis.1 livor tion. investigation. 1992-1993 following the WL Ege, No. People Sept., attempted to (Mich.Ct.App. trial, prosecution *1 n. at At Davis description with 1996). was the was obsessed Ege Such that show jealous furiously by the case therefore and was Carol appeal Thompson direct child heard and Thompson Appeals, wit- presented conviction and jury prosecution The following carrying. Thomp- Cin killing Ege for the murder testified first-degree who nesses years prior several Thompson. argued had dy son entered Ege death, when Thompson’s ro- both had Thompson Ege case a watch destroy house to Davis, Thompson’s Mark with mantically involved bought had Thompson T-shirts car- allegedly Thompson child whose present- Further for Davis. he found testified Davis rying. in a engaged Thompson Ege ed that some bedroom upstairs in her Thompson sister’s Thompson’s struggle 22, physical February a.m. 5:00 before time sort of some postmortem suffered mortis, a body where known location also Livor Medi- Illustrated Dorland's caused or trauma. skin discoloration lividity, blow a form of ed.2003). (30th Dictionary blood, marking the settling cal often by the house, when Thompson was five months was largely undermined the friend’s pregnant. Witnesses also testified that subsequent testimony that he and Davis Ege attempted had to hire two different were not in together fact night. Also men to kill Thompson, and that about one on cross-examination, Davis testified that week death, before Thompson’s Ege had he never believed that Ege had killed roommate, asked her Parker, Carol pro- Thompson, and affirmed that Ege had in vide her an in exchange alibi for free fact been home night. all Finally, rent. several witnesses testified prosecution’s expert witness, Dr. that Ege expressed to them a desire Warnick, Alan opined that the mark found Thompson see killed. One witness tes- Thompson’s cheek, which the original tified that after Thompson became preg- autopsy report had concluded was liver nant, Ege her, said to “Cindy [Thompson] mortis, was actually a bite mark. Dr. going was not to have the baby; that she Warnick was unable to examine the actual didn’t why, know how or and she didn’t injury, because Thompson’s body was too get want involved, me that she badly decomposed upon exhumation nine wasn’t going to baby.” have the Another years after the Thus, murder. Dr. War- witness testified told her “she *5 nick relied on photographs of the mark could stomp baby her, out of slit her which had been taken at the of time throat, rip up her in pieces little and think initial autopsy, in 1984. Dr. Warnick com- nothing of it.” Yet another witness testi- pared dentitions of suspects several raised that fied Ege told him she wanted Thomp- by the defense and found that none of son “really bad, hurt either beat up her them could have made the bite mark. He bad or kill her.” also checked dentition and concluded Ege virtually denied all allega- of the that it was highly consistent with the bite tions by made prosecution witnesses, and mark. Dr. Warnick was by asked much of their testimony was called into prosecution, say “Let’s you have the De- serious question on cross-examination, ei- troit Metropolitan Area, three, three and a through ther impeachment showing or of half million people. Would anybody else bias. The defense’s theory of the case was within that kind of number match like she Ege that could not have been at the crime did?” responded, He “No, in my expert scene on the evening of the murder be- opinion, nobody else would match up.” cause she at was home all evening, and Ege’s defense counsel object did not to Dr. although that there was perhaps some evi- testimony, Warnick’s but rather called two dence her, pointing to a more compelling expert witnesses in first, rebuttal. The circumstantial case could in fact be made pathology professor Wayne at State Uni- against several of the prosecution’s wit- versity, concluded that the mark on nesses, including Davis. Davis admitted Thompson’s cheek was mortis, liver he had been drinking of most day not a bite mark. second, a dentist and night prior to Thompson’s murder, doctor, medical provided similar testi- and that by the he time decided to togo mony, and added that even if it were a bite Thompson’s house on the morning of Feb- mark, pattern did not align ruary 22, he had consumed approximately dentition. five bottles of wine. presence Davis’s Thompson’s house coincided approximately A jury Ege found guilty of first-degree with the time she' died. His alibi that he murder. On January 28, 1994 she was was drinking at a friend’s up house until sentenced to imprisonment life without the the time he found Thompson’s body possibility parole. of Ege’s direct appeal 2000, Michigan 24, and the August on tion Court Michigan rejected by was 30, April likewise on did Ege’s Supreme Court 17, 1997. September Appeals 1998, March final on became conviction days after
ninety
in
Ege presented
August
On
for leave
application
denied
following claims
court
appeal.
corpus:
of habeas
for writ
petition
months
28, 1999, almost sixteen
On
fundamen-
denied a
was
I. Petitioner
final,
filed
Ege
became
conviction
after her
process
of due
fair trial
violation
tally
in Michi-
relief
post-conviction
motion
an erro-
admission
through the
of law
that her
argued
She
court.
circuit
gan
awas
there
expert opinion
neous
was violated
a fair trial
right
a bite
chance”
to one
million
“3.1
mark
bite
made
body
victim’s
mark on
itself
both because
testimony,
where
petitioner,
than
anyone other
un-
probabilistically
scientifically
foun-
scientific
was without
opinion
this
Dr. Warnick
and because
sound
cases have
subsequent
and where
dation
unreliability.
record
demonstrated
to be com-
particular
shown
assistance
ineffective
an
also raised
of de-
with a series
unreliable
pletely
that her
claim,
grounds
identifi-
bite mark
monstrably erroneous
intro-
object to the
attorney had failed
cases.
capital
cations
evidence, well
duction
effective
denied
II. Petitioner
evidence concern-
introduction
toas
where counsel
circuit
trial counsel
history. The
assistance
prior sexual
ing Ege’s
obviously
a series
January
object to
failed
concluded
*6
inflammatory prosecu-
challenge
evidentiary
and
inadmissible
Ege’s
evidence, par-
testifying
the
posed
mark
questions
prosecution’s
the
torial
concerning the
and
history,
testimony
sexual
her
ticularly the
about
defendant
abortions,
an alternate
and
probability
multiple
history
mathematical
her
founda-
match,
proper
“lacked a
to demand
random
counsel
failed
where
had
excluded
expert
should
testi-
and
as to
Davis-Frye
hearing
tion”
However, the
raised.
objection been
and denied
an
by Dr. Warnick
mony given
(a) trial
because
relief
denied
appellate
circuit
assistance
the effective
evi-
object to the
failed
counsel
counsel,
represented
who
where
counsel
(b)
present
opportunity
dence, and
the
appeal,
on
trial
at
both
petitioner
meth-
challenging Dr. Warnick’s
inef-
own
of his
the issue
raise
failed to
resulting
any prejudice
removed
odology
appeal.
at trial
fectiveness
evidence.
the inadmissible
receipt of
from
rights
constitutional
III. Petitioner’s
improper
weighed
The court
confronted
was
she
where
were violated
evi-
untainted
strength of the
against
ques-
trial with
prosecution
trial was
that a new
and found
dence
history and
sexual
her
regarding
tions
assis-
ineffective
As to
required.
abortions.
two
she had
fact that
claim,
circuit court
counsel
tance
the habeas
to dismiss
moved
The State
well, finding that
as
relief
denied
arguing
judgment,
summary
petition
not substand-
was
performance
counsel’s
one-year
under the
time-barred
that it was
a motion
court denied
circuit
The
ard.
by 28
established
limitations
statute
15, 2000.
February
reconsideration
2244(d)(1).
court de
The district
denied
Appeals
Michigan Court
it was
because
motion
the State’s
nied
mo-
post-conviction
as to
appeal
satisfied
“discovery
of non-record
judge to be improperly admitted, had a
relating
facts
reliability
of the
substantial
injurious
effect or influ
state’s
did
witness
not occur and could not
ence in determining
jury’s
verdict.”
have
until
occurred
after the expiration of D.
22,
Op., July
Ct.
at 36 (quoting
filing deadline,
the habeas
even as tolled
Abrahamson,
Brecht
619, 638,
507 U.S.
by [Ege’s]
post-conviction
motion.” 113
(1993)).
371 [a applied decision 2052, court 80 104 U.S. 466 Vincent, 538 Price incorrectly.” v. case] third (1984)). toAs 674 L.Ed.2d L.Ed.2d 634, 123 S.Ct. U.S. her second portions those claim and Rather, federal (2003). order “[i]n of evidence relating claim application a state court’s find court history, sexual prior at trial decision ‘unreasonable,’ state court’s Ege does not relief. denied district court or incorrect more than must have denials. these appeal ‘objectively erroneous[;][it] must court’s the district appeals The State Smith, 539 v. Wiggins unreasonable.’” merits on the ruling L.Ed.2d 510, 520, 123 S.Ct. as petition, Ege’s habeas II of I counts and stated, “a has As this Court 4, 2002 court’s June the district well must whether ask habeas court federal pe- post-conviction state ruling that clearly estab application court’s state time-barred. tition was objectively reason law lished that, finds court If the federal able. II cor court has the state objectively, viewed reviews This Court legal princi governing rectly identified the habeas writ regarding court’s decision decisions Supreme Court’s from the ple Brigano, 232 v. novo. de corpus Wolfe principle unreasonably applied Cir.2000). find (6th Factual 499, 501 F.3d case, may prisoner’s the facts are re court by the district ings made Adams, 376 Millender the writ.” grant the factual unless error clear viewed for Cir.2004). (6th 520, 523 F.3d made based are determinations Mitchell, 329 Bugh v. court documents. Ill Cir.2003). (6th In such 496, 500 F.3d Period The Limitations A. reviewed de findings are cases, factual 2244(d)(1) § 28 U.S.C. Id. novo. ap- shall of limitation period 1-year “A and Ef Antiterrorism Under writ habeas for a application to an ply (“AED- of 1996 Penalty Act Death
fective custody pursuant by person corpus may grant PA”), a federal 28 U.S.C. court.” of a State judgment adjudication court’s the state relief unless runs period 2244(d)(1). limitation either: occur- possible of’ several latest “from the con- (1) in a decision resulted rences, including an to, unreasonable or involved trary be- judgment (A) which the date Feder- of, clearly established application *8 of direct the conclusion by final came law, as determined al time of the expiration or review States; or the United Court of review; ... or seeking such was based (2) in a decision resulted predi- (D) which the date factual of determination unreasonable upon an presented or claims the claim cate pre- of the evidence light in the facts through discovered have been could proceeding. court in the State sented diligence. of due exercise 2254(d). the “unrea- § Under 28 U.S.C. Furthermore, added). section, (emphasis Id. prong application” sonable tolled period limitation one-year issue the may not court habeas “a federal appli- filed properly during which “time in concludes court because simply writ other or post-conviction for State cation the state- judgment independent its collateral review with respect to the perti- possible suspect; other, because a nent or claim judgment is pending.” 28 second undermined prob 2244(d)(2). § ability Wayne determination —the County Prosecutor’s Office concluded that it
If
“will
was
district
correct that the
approve
warrants
factual
where the main
predicate namely, that
evi
Dr. War-
—
dence as to
identity
nick
of a potential
was a “sham” scientist —for Ege’s due
defendant
opinion
is the
process habeas claims
of Dr.
could not have
Warnick
until
is the
discovered
“some time after
he/she
source
the bite
April
1999,”
2241(d)(1)
Ege
§
marks.”
notes that
then
while the
pe-
limitations
letter
riod
dates from
begin
would not
to run
it was
public
from
not a
the date
docu
ment,
on which her conviction
and thus she could
became final
not have known
(March 30, 1998),
that Dr.
but rather
Warnick
Ege’s
from
been thrown into
discovery
disrepute
of the
in April
letter
until
receipt
1999.
letter in
period
limitations
would then
argues
have been
further
that prior to
tolled in
approximately
April 1999
four
there
published
existed no
or
run,
months
it began
after
upon
unpublished
Ege’s
Michigan appellate decisions
proper filing of a
relating
claim for
post-
Warnick,
to Dr.
and thus the “fact
conviction relief. Running of the
that defense
statute
[Wayne
learned of the
would have
30, County]
recommenced on
letter
all
April
can only be character
2001, when the Michigan Supreme
ized as
Appellee’s
fortuitous.”3
Br. at 54-
denied
appeal
fact,
leave to
Ege’s denial
55. In
post-
two other
cases which Dr.
conviction relief. Ege’s federal
Warnick’s bite
pe-
mark testimony
ques
was
tition
then
August 13,
filed
only
tioned were
published around the
approximately four months after
same
this deni-
time that
counsel received the
Thus,
al.
if the district court
letter.
Warnick,
was correct
See Amolsch v.
No.
in its
finding,
factual
then
B. of each. In Due this case Process Claim there was no evidence to support the ex- offered Ege asserts she deprived of her due pert’s regarding conclusion the probabil- process right to a fair trial because of the ity made the mark. defendant court’s improper admission Dr. words, In other expert did not testify Warnick’s bite-mark testimony, which she that he had particular claims was both identified substantively and fea- proba- tures that had a knoum bilistically unsound. parties, Both well rate occurrence. Neither did ex- as the court, have correctly high- pert did [sic] testify that he had multi- lighted the critical portion of Dr. War- plied these values to reach his conclu- nick’s trial testimony: sion. Q: Now, Doctor, regard your testimony, you indicated that it’s highly People v. Ege, Oakland Circuit No. Case consistent with the dentition of Defen- 93-125655-FC, January (in at 5 dant Ege; Carol is that correct? omitted) ternal citation added). (emphasis A: Yes. Thus, the state habeas court it high found Q: Okay. With regard to—let me ask ly. problematic not that prosecution you a question. Let’s say you have the used Warnick to introduce bite Detroit Metropolitan Area, three, three mark evidence in the place, first but that and a half million people. any- Would Warnick had tied his observations to a body else within that kind of number statement about probabilities that was match like she did? wholly without foundation. agree. We No,
A: my expert opinion, nobody prosecution failed lay any founda else would match up. whatsoever, tion either for Dr. Warnick’s 4. Dr. expert testimony, Liebman, which was Federal Corpus Habeas Practice and later found to be in essence a sham a party (5th ed.2005). Procedure 5.2b 45n. In such on whose behalf the given, cases, may petitioner could not have been rea analogized be where, to cases for example, a sonably expected to discover the misconduct DNA later admits lying during numerous pretrial discovery or trial. As a conse results, regarding times test key aor eyewit quence, an untimely otherwise petition may ness later perjury admits to identifying timely deemed proper circum defendant. Randy Hertz & James S. stances.
375
Application
(1)
Habeas Court’s
State
The
denti-
of the
connection
under Chambers
“Prejudice”
assertion
or Warnick’s
general,
tion in
of
by probabil-
a
connected
two were
that the
pro
due
habeas
of
Any review
to one.
million
ity of 3.5
improper admission
claims based
cess
ruled
court then
habeas
state
the
But
the Su
of
cognizant
must
of evidence
that could
prejudice
any possible
that
not the
“it
that
mandate
Court’s
preme
of Dr.
improper
from
resulted
reex
court
habeas
of a federal
province
by the
negated
testimony was
Warnick’s
state-
determinations
amine state-court
pres-
permitted
Ege had
fact
McGuire, 502
v.
Estelle
questions.”
law
to Dr.
opposition
in
experts
own
ent her
385
116 L.Ed.2d
62, 68, 112 S.Ct.
rejected Warnick’s
Warnick,
of whom
both
stan
deferential
very
this
Under
Thompson’s
the mark
conclusion
violated, and thus
dard,
simply livor
not
mark and
awas bite
cheek
warranted, only if an eviden-
relief
habeas
Furthermore,
the state
6.
Id. at
mortis.
that it results
egregious
“so
ruling is
tiary
court noted
habeas
fairness.”
fundamental
of
in a denial
guilt or
the
case,
where
Cir.2003).
(6th
at 512
Bugh, 329 F.3d
on an
hinged
the defendant
of
innocence
evi
prejudicial
the admission
“Whether
opin-
suspect
unchallenged
fundamental
denial of
constitutes
dence
witnesses
independent
Numerous
ion.
the evidence
upon whether
turns
fairness
defen-
the
which
efforts
to the
testified
crucial, critical
in
sense of
is material
killing
in
help
secure
made to
dant
Brown
factor.”
significant
highly
in
took
which she
victim,
steps
to the
Cir.2000).
(6th
O’Dea,
645
227 F.3d
victim,
to her
kill
attempt to
one
ac-
murder
before
statements
roots
have their
principles
These
in which
manner
curately predicted the
Cham
decision of
Supreme Court
ultimately murdered.
victim was
284, 302-03,
410 U.S.
Mississippi,
bers v.
Following
Id. at
(1973),which
1038, L.Ed.2d
93 S.Ct.
Mateo, 453
People v.
see
precedent,
Court
“defeat
errors cannot
held that
(1996),
N.W.2d
Mich.
deprive a
or otherwise
justice”
ends
into
nature
inquired
habeas court
state
trial.
In
a fair
right
of her
defendant
“assesse[d] its
evidentiary error
looking
Chambers,
strength of
weight
light
effect
exclusion
improper
trial court’s
state
con
The court
evidence.”
the untainted
potentially
would
certain
untainted
that “[t]he
cluded
defendant,
its tenets
have assisted
to the
pointed
overwhelmingly
this case
involv
to situations
applicable
equally
No. 93- are
Ege,
People v.
[Ege].”
guilt of
admis
improper
trial court’s
a state
ing
125655-FC, at 6.
injurious
of certain
sion
notwithstanding,
prejudice
lack of
The
is there
question
ultimate
defendant.
ruled that
also
court
habeas
the state
court, in
whether
fore
con-
by Michigan’s
barred
claim was
Dr. Warnick’s
finding that admission
rule, because
objection
temporaneous
ulti
prejudicial
object to admission
failed
trial counsel
case, unreasonably
mate outcome
any point
testimony at
Dr. Warnick’s
Chambers.5
applied
proceedings.
evidence,
the State’s
“the nature
bite mark
concluded
5. The
altogether
different
would
proofs
statistical
the benefit
without
*12
case,
In the instant
hindsight
law,
assess-
dence
and we do not question the
ment of
impact
of Dr. Warnick’s testi- Michigan courts’ judgment
respect
with
mony requires
two intertwined assess-
admission of the bite mark evidence stand
ments of the
against
Ege:
ing alone.
People Marsh,
v.
177 Mich.
first, taken in the context of defense coun-
161,
App.
(1989).
441 N.W.2d
However,
33
sel’s rebuttal experts,
second,
and the
tak- Dr. Warnick’s statement
that among the
en in the
prosecution’s
context
other
3.5 million residents of the Detroit metro
evidence, all
only
of which was
circumstan-
politan area, Ege’s teeth,
only Ege’s
and
tial. As to
assessment,
the first
the effec-
teeth, could have made the mark on
tiveness of
experts
rebuttal
must be
Thompson’s cheek, was without doubt
viewed in comparison to the substance of
highly prejudicial.
It strains credulity testimony.
rebutted
agree
We
think
jury
that a
hearing Dr. Warnick’s
the district court that “Dr.
opin-
testimony would not
immediately place
ion that the petitioner
only
was the
person
Ege at the scene of Thompson’s violent
in the entire Detroit metropolitan area
murder, if only
teeth,
and not those of
who could have made the mark on the
3,499,999 other
residents,
Detroit
were
corpse
an aura
carried
of mathematical
linked to a bite mark on Thompson’s
precision pointing overwhelmingly to the
cheek. Such “testimony expressing opin
statistical probability
guilt,
when the
ions or conclusions in
terms of
deserved no
statistical
such credence.” D.
probabilities
Op.,
22,
Ct.
can
July
2005,
make
35. Bite mark
uncertain seem
may by
all but
very
proven,
its
nature be
and
overly
by
suggest,
quantifica
prejudicial
unreliable,6
tion,
and
but it may nev-
satisfaction of
requirement
ertheless be admitted
evi- guilt be established ‘beyond a reasonable
necessarily
weaker case
would have
(1991)
In
once the state habeas
added).
(emphasis
Thus, in order to
over
had concluded that the
come the
procedural
State’s
default de
testimony
error,
it was
fense, Ege must show both
unreasonable,
objectively
“cause” and
under the tenets
“prejudice” for her
espoused
failure to
Supreme
comply
Court in
Cham-
Michigan’s
bers,
contemporaneous
objection
for the state court to have concluded
rule.
prejudicial.
has acknowl
It
*14
edged that
may
“cause”
seems clear to
us that the bite-mark evi-
established
through a
“crucial,
showing
dence was a
of
highly
critical
counsel’s
signifi-
ineffective
factor,” Brown,
failing
cant
ness
properly
preserve
227
to
F.3d at
jury’s
review in state
Ege’s
determination of
court.
guilt.
Id.
just
“Not
any deficiency in
performance
counsel’s
(2)
Default&emdash;Trial
Procedural
Counsel’s
do, however;
will
the assistance must have
Failure to Contemporaneously Object been so ineffective as to violate the Feder
Constitution”&emdash;in
al
case,
though
Even
her
state habeas court
Sixth
Amendment right to
question
reached the
a fair
trial.
Id.
whether admission
of Dr. Warnick’s testimony unfairly preju-
The district court correctly noted
diced
(concluding, unreasonably,
that as a general rule, trial counsel’s stra
not),
that it did
the state court ruled that
tegic decisions on how the trial is to be
complaint could be dis-
conducted are
great
afforded
deference.
posed
prior
to reaching
question.
Strickland,
U.S. at
104 S.Ct.
Specifically, the state habeas court ruled
2052 (holding that “a court must indulge a
because
trial counsel had failed
strong presumption that counsel’s conduct
contemporaneously
object
to
to Dr. War-
falls within the wide range of reasonable
nick’s testimony, any subsequent federal
professional assistance”); see also Wiggins
habeas claims raising the evidentiary issue
Smith,
510, 521,
539 U.S.
123 S.Ct.
were barred under of the. doctrine
pro-
(2003)
Ege does not dispute instead that Michi emphasizing that “the gan’s contemporaneous proper objection measure of attorney performance rule is a valid procedural remains simply rule. She therefore reasonableness pre must vailing confront professional norms.”) a hurdle inherent to our Neverthe less, system, federalist namely, that “a court was also correct petitioner who there has failed must be to some limit to meet this def procedural State’s erence: requirements pre
senting [her] claims deprived has case, In this it is difficult to conceive of a the state courts of an opportunity to ad reason for not objecting to the bite mark dress those claims in the first instance.” evidence and the statistical opinion. As Thompson, Coleman v. 722, 732, the state court of appeals observed in its L.Ed.2d 640 In opinion on direct appeal, “[t]he defense’s case, such a habeas petitioner is required theory as presented in its opening state- “to demonstrate cause for [her] state-court ment was that defendant not could have directly object than rather counter-experts evening scene crime at the been strategically reason- testimony is she was to as [sic] because the murder case, where, in the instant But “[n]one able. evening,” all the home linking a presented crime lab is to evidence physical submitted scene, crime.” and it the crime defendant defendant connected link, such a showing bite only physical Since connecting the object to its must physical only counsel then defense at the time scene to the crime been has petitioner foundation proper if no admissibil- murder, challenging its Anything else presenter. laid deci- a sound likely would have ity Furthermore, unreasonable. objectively Al- consequence. adverse no with sion in- chose counsel that defense the fact had been mark evidence though testi- counter-experts troduce prosecutions, in other used perform- counsel’s not insulate mony does wound the bite never examined Warnick counsel could is no reason There ance. photograph himself, use objected to War- simultaneously have ap- comparison make the wound to rebut attempted nick’s if defense Even be novel. pears his own. experts anticipated could *15 to over prejudice sufficient To establish the un- soliciting question prosecutor’s an ineffective with default procedural come evidence, might one statistical supported claim, petitioner a of counsel assistance contemporaneous a lodging expect that, probability” a “reasonable must show evi- to strike moving objection errors, a different counsel’s for her mistrial, would a dence, for perhaps or Strick have occurred. likely would result procedure operating standard A 694, 2052. 104 S.Ct. land, 466 U.S. at flaw in lawyer. competent defense establish, how to does not petitioner should opinion statistical Dr. Warnick’s likely than error “more ever, counsel’s admissibility and its obvious have been Id. the case.” the outcome not altered for ob- The basis readily assailable.... prob “Reasonable 104 S.Ct. at yet unsubstan- damaging to this jecting Strickland, then, “a prob is ability” under should opinion tiated confidence to undermine ability sufficient counsel, fail- to defense obvious 694, 104 S.Ct. Id. outcome.” substand- objection was lodge ure discussion previous Given our pro- 2052. prevailing performance ard ad by erroneous caused prejudice actual norms. fessional testimony, supra, of Warnick’s mission (internal at 27-31 Op., D. Ct. prejudice the Strickland conclude we omitted). agree dis- with We citations Thus, Ege has well. met as standard It is the matter. resolution trict court’s prej nested cause and the nested met both compel Wiggins true that Strickland an ineffective to use required prongs udice wide berth give habeas as “cause” claim of counsel assistance actions, most and that to trial counsel’s Ege’s non-com default.7 procedural her put attorney’s decision instances, an by AED- barred claim is assistance ineffective an ineffective use of again 7. We note limitations, due statute proce- PA’s claim excuse of counsel assistance III.A, Part similarly barred. here, Ege's claim of another dural default claim— sur- process claim due supra. Because use an different from process claim—is integral to the vives, any arguments too do so standing alone. assistance ineffective here, claim, including, as of this free-standing resolution we hold that And while pliance Michigan’s procedural default BOGGS, Judge, Chief dissenting. may rule therefore be excused. I agree with the majority’s reversal
the district grant court’s of Ege’s habeas petition C. based Free-Standing on her ineffective Ineffective assistance However, claim.
Assistance of
because I
Counsel
believe
Claim
Ege’s claim was untimely, and that
In order for a
petitioner
admission of bite-mark evidence does not
succeed
a free-standing
as
ineffective
constitute an unreasonable application of
claim,
sistance
even if the claim clearly
established
Court prece-
has been used in
guise
another
as “cause” dent, I dissent from
majority’s
partial
procedural
excuse
default,
petitioner
affirmance of the district
grant.
court’s
(i)
must still demonstrate:
deficient per The same reasons the court uses to deny
formance
counsel,
(ii)
prejudice,
part of Ege’s petition should defeat the
meaning the
performance
deficient
de
remainder.
prived petitioner of a fair proceeding.
Strickland v. Washington,
I
687, 104
new evidentiary basis to renew a defaulted claim on that basis. The majority rv per- is
suaded, however, that the very same letter provides For a the new factual predicate reasons above, discussed this the notion that Dr. AFFIRMS the Warnick was a court’s con- “sham” scientist. ditional grant of Petitioner Ege’s writ of habeas corpus as to process her due claim, The majority believes that the district
but REVERSES as to her freestanding court’s conclusion that the Padzieski letter claim of ineffective assistance of counsel. constitutes new factual predicate is a partial Our reversal thus does nothing to factual finding, which we review clear upset the district court’s July 2005 However, error. the authority cited for order&emdash;namely, that Ege be released from this proposition, Bugh, 329 at F.3d custody unless the State of Michigan simply states that factual findings of a brings to trial again within seventy habeas court are reviewed for error, clear days, subject to the exclusions from such not that a predicate” “factual determina- period allowed § 18 U.S.C. 3161. tion under 2244(d)(1) is a
use of ineffectiveness of counsel to procedural excuse default. identification bite-mark introduce nick to ap- not does This court of fact. question to was allowed evidence, Warnick but that question whether have decided pear to about statement this foundationless as it make fact, insofar lawof or is one at 376-77. No Maj. Op. statutory probabilities. of a application requires Ege least, expert, be, well-qualified how at the matter standard, appears she that we the time of and fact notice at of law was on question mixed probability However, were we objected even have should de novo. review implies its that, appropriate majority evidence, as assume Carlson, N.W.2d review, letter constitutes People citations standard ques- Tribe, specific H. (Minn.1978) predicate and Lawrence new factual it can- competence, Mathematics, L.Rev. Dr. 84 Harv. tion of Trial timely make serve any case Op. Maj. not in at majority on which claim process from analysis proceeds majority’s The grant affirm the would although suggesting premises, these a new constitutes If letter petition. might not alone evidence the identification on the based for a claim predicate factual prejudicial especially been —coun- identification Dr. Warnick’s allegation testimony of a by the it was tered as unreliable, but particularly with the combination defense allegation that —its claim based for a not testimony resulted in probability improper at trial offered probability fairness of fundamental a denial admitted, then it been not have should of this the reasonableness trial. Whatever on a proceed allow most at should admits, the majority conclusion, if, evi- the identification based petition a new provide does not Padzieski letter evidence. dence, probability War- claim that for the predicate factual II not have should probability nick’s trial, analysis, such majority’s due admitted analysis is up with inextricably time-barred, majority’s bound however, concerning the properly claims time-barred in a claim grounded offered court, properly Warnick and not probability the district before *17 specifically Indeed, majority to be- the majority appears at trial. us. The before the question they that “do is a self- Ege’s petition concedes that because lieve respect to judgment courts’ both encompassing “hybrid” termed stand evidence bite the and his probability the yet 376 and alone,” Maj. Op. at ing testimony, the determination identification a new only provide could letter Padzieski pred- a new factual provides letter that the that proposition for the predicate factual impli- process due questioning the icate for evidence identification bite mark allows the identification cations They admitted. should us, consider court, the district of War- portion” “critical as the identify the probability implications process due that, De testimony his claim nick’s as well. itself million some 3.5 area of metropolitan troit the erroneous that case Were match Ege would no one people, (a claim based identification he identified marks supposed Padzie- predicate the factual which agree with victim, Maj. Op. at us), put before properly might ski letter that post-conviction the state ev- probability cumulatively with taken War- used the state was not problem idence, resulted in sufficient prejudice to ecuting Ege, despite the likelihood that the amount process to a due violation, this circumstantial case against her had been might appropriate. here, The situation available much earlier. Maj. Op. at 377. however, is precisely the reverse: the ma From fact, this the majority divines that jority’s argument is the newly-predi prosecution must have felt the bite- cated weakness of the identification evi mark evidence to be particularly important dence makes stronger (time-barred) to the against case Ege, and in turn sug case that the introduction of probabili gests that “[i]t not unreasonable to con ty evidence constituted a due vio clude, therefore, single this piece of lation. Viewed light, the Padzieski physical evidence substantially prejudiced letter at best cumulative evidence, the outcome of Ege’s trial.” Ibid. Wheth presented defense, er or not it is conclude, unreasonable to so Warnick’s identification was inaccurate, the proper question in a habeas proceeding and such cumulative evidence “cannot form is whether it was unreasonable for the the newly discovered predicate” factual state court to reach the opposite conclu 2244(d)(1). § 28 U.S.C. Jones, Souter v. sion. It is simply not enough for this (6th 395 F.3d Cir.2005). The court to have a reasonable belief that there possibility that, as the majority suggests, substantial prejudice here. before the discovery of the Padzieski letter Williams v. Taylor, 529 362, 365, “Ege did not fully appreciate strength 1495, 146 L.Ed.2d 389 of her process claim,” Maj. Op. at 373 Granted, the majority (emphasis does added), assert does not appear to be a the state court’s basis for allowing an conclusion that the testi- otherwise time- mony barred was not claim. substantially prejudicial was an objectively unreasonable application of In addition, the majority fails take “the tenets espoused by the Supreme seriously the limitations imposed on feder- Court Chambers,” basing al this assertion review the relevant AEDPA on its belief that “the provision, bite-mark 2254(d), (in was a ‘crucial, critical highly relevant part) permits significant habeas relief only ” factor’ where the jury’s a state proceeding determination resulted in a guilt. to, Maj. decision contrary Op. or at 378 (quoting Brown, amounting to an 645). unreasonable application F.3d at of, clearly Again, however, estab- lished precedent. majority makes no ma- attempt to show why jority notes that to merit habeas relief “the court’s opposite conclusion was state court’s decision must have (rather been more unreasonable merely than incor- than or incorrect erroneous,” rect, but rather if that). it even was And, indeed, the must have been “objectively unreason- majority’s concession that at least some of *18 able.” Wiggins, 539 U.S. at 123 S.Ct. the circumstantial evidence was strong on 2527. However, analysis their of whether its points face to the conclusion that the the admission of Dr. Warnick’s testimony state court’s finding was not unreasonable. was substantially prejudicial largely turns They acknowledge the testimony of one this analysis on its head. witness that Ege had said “she could
The majority observes that stomp the state the baby out of [Thompson], slit her waited some years, nine until it throat, had ob- rip up in little pieces and think tained the bite-mark evidence, before pros- it,” nothing of Maj. Op. 377,1 to which 1. The majority’s comment that this ny testimo was "significantly, if completely, dis
383 (1992), the 353 L.Ed.2d 120 Ege sought that add we would that, despite no indication provides record Thompson, to kill someone hire into fallen may have disfavor recent Thomp and assaulted had threatened of admission jurisdictions, some posses of her some vandalized son such of identification bite-mark pro a friend asked sions, she character. a alibi. false vide grounding s Furthermore, majority HI tenets general conclusion
of War- from Dr. arising the claim Because our odds is at Chambers expressed time-barred testimony is probability ob nick’s we particular, In precedent. 2244(d)(1), and because under when of occasions number aon served not result did proceedings evidentiary predicated a habeas clearly of application an unreasonable of the existence depends issues, relief un- precedent Court Supreme established type particular establishing precedent AEDPA, I dissent standards der defen violating the as at issue of evidence affirmance partial court’s See, from e.g., Mal rights. process due dant’s of habeas the writ grant court’s 477-78 Wilson, 416 F.3d v. donado corpus. Cir.2005) admission (improper (6th unrea analysis evidence
voice-stress no where standard AEDPA
sonable ad established precedent Court aas or similar polygraph
mission
v.
Frazier
process);
due
violation
Huff
Plaintiff-Appellant,
ISAACS,
L.
Carol
Cir.2003);
(6th
780, 790
man,
F.3d
Su
Without
512-13.
F.3d at
Bugh,
v.
establishing the
precedent
Court
preme
INC.,
NUTRITION,
PET
HILL’S
evi
identification
bite-mark
Company,
Colgate-Palmolive
violation—and
process
as
dence
Defendants-Appellees.
any ex
here
suggestion
is no
there
No. 06-2201.
evidentiary
state-court
“[generally,
ists —
of due
level
rise
rulings cannot
Appeals,
States
United
]
they ‘offend[
unless
violations
Circuit.
Seventh
so rooted
justice
principle
some
2007.
people
of our
March
Argued
conscience
traditions
” Seymour
as fundamental.’
ranked
to be
4,May
Decided
Cir.2000)
(6th
542, 552
Walker, 224 F.3d
v.
Banc
En
Rehearing
Rehearing and
U.S.
Egelhoff
Montana
(quoting
29, 2007.
May
Denied
(1996)).
2013,
ruling offends Medi practice, to historical looking
tion 437, 446, 112 California,
na v. *19 Marshall court, them.” ibid., cross-examination,” al credited Lonberger, license has "no a habeas irrelevant: whose credibility witnesses 74 L.Ed.2d redetermine tri observed has been demeanor