*1 747 sentencings two between the the time TUCKER, Petitioner-Appellee, David imposing objective reasons for rise to
gave thirty additional an upon Defendant imprisonment.
months PRELESNIK, Respondent-
John Appellant. B. ad generally does not
This Court No. 98-1343. of ineffective assistance dress claims Appeals, United States Court of See, appeal. when raised on direct Sixth Circuit. 1135, Tucker, F.3d v. 90 e.g., United States Cir.1996). (6th a claim is best Such 1143 Argued March 1999. post-conviction proceeding in a brought Decided June § 2255. See United under 28 U.S.C. (6th F.3d 263 Seymour, 38
States
Cir.1994). rule reason for this One ineffective assistance of counsel
claims of finding of
require prejudice, a factual well-equipped to courts are not factual the resolution of issues.
undertake 123 F.3d Aguwa,
See United States Cir.1997). case, (6th present In the
423 charges attorney preju that his
Defendant object to vindic by failing him
diced resentencing. place
tiveness that took
However, no evidence the record contains to determine wheth
permitting this Court indeed behaved unrea
er defense counsel his decision not
sonably or whether or one “chilled”
object strategic was a one the dis
by the vindictiveness of apparent Sowders, Wiley v.
trict court. See (6th Cir.1981); see also
F.2d
Pearce, 2072. We 395 U.S. to address Defen
consequently decline claim of ineffective assistance
dant’s may develop parties
counsel so that record on the issue. See United
adequate (6th Goodlett,
States v.
Cir.1993).
IV. above, we the reasons set forth
For judgment of the district
REVERSE
court, proceed- REMAND for further opinion. with this
ings consistent *2 a term sentencing guidelines, to
applicable
Peti-
years
imprisonment.
of six to ten
tioner-Appellee Tucker has now served his
parole.
sentence and
conviction and
appealed
Mr. Tucker
*3
that he
right
argued
sentence as of
and
ineffective assistance of coun-
had received
court remanded
sel. The state
judge
hearing,
the trial
for a
the case to
in
hearing Michigan,
a
known as Ginther
claim of ineffective assis-
on Mr. Tucker’s
judge
denied Mr. Tuck-
tance. The
er’s claim. The
Mr.
conviction and
peals affirmed
opinion,
unpublished
sentence
a brief
by an
Michigan,
and the
vote,
evenly divided
denied Mr. Tucker’s
appeal.
People
for leave to
See
(1996).
Tucker,
preme Court’s the inef- OPINION Amendment based Sixth counsel. The district fective assistance of BECKWITH, District SANDRA S. mo- Respondenb-Appellant’s court denied Judge. February on tion for reconsideration David Petitioner-Appellee In followed. appeal and this assault with intent Tucker was convicted of bodily harm after a state great to do I. BACKGROUND hour. lasting less than one bench Petitioner-Appellee In both him June outside The trial sentenced were em- Anthony Henderson Tucker and by the range prescribed zero to 24-month * Ohio, Beckwith, sitting by designation. United S. Honorable Sandra District Judge for Southern District States fact, He prosecution’s only witness. De- a McDonald’s restaurant
ployees of troit, pushed Mr. Tucker him into testified that Michigan. On June severely Wiley attacked and and an Henderson was where Robert the restroom the men’s restroom of or near beaten man assaulted him. Mr. unknown suffered Henderson the restaurant. also testified that he had been Henderson un- injury and was rendered closed-head period for a of six months after comatose re- Petitioner-Appellee Tucker conscious. assault, that he had been unable to injury to the Mr. Henderson’s res- ported nine police period for a speak manager duty, who instructed taurant months, and that all of his ribs had been Tucker call 911. attack. broken assault, Anthony The victim of Mr. Tucker also testified. He denied Henderson, in a remained comatose De- in the assault on any involvement *4 period hospital troit for extended to represented His counsel Henderson. The medical rec- time after the assault. Mr. judge the trial Henderson’s medi- that he hospitalization of his indicate ords had no cal records would show that he month, period of one was comatose for not memory of the assault. Counsel did coherently two to speaking that he was records, however, and could not have assault, that he months after the four The trial convicted judge introduce them. not have broken ribs. any did Petitioner-Appellee Tucker of assault with initially brought Detroit Police The great bodily injury. intent to do against individuals other than charges two sentencing Anthony hearing, At An- Petitioner-Appellee for the assault on impact made a victim state- Henderson thony April Henderson. Not until in which he stated that he had been ment assault, Anthony after the did ten months period comatose for a after the six-month Police Henderson indicate to the Detroit assault and that he had been unable to in- that he believed that Mr. Tucker was speak peri- for an additional three-month volved in the assault. For reasons that had od. He stated his assailants record, entirely clear from are not judge all of ribs. The trial de- broken his prosecutor eventually pursue decided to applicable sentencing viated from the charges against Petitioner-Appellee Tuck- guideline imposed a term of six to only. er years imprisonment. ten trial, A prior few weeks Mr. Tucker’s remand from the On trial counsel received a letter from Antho- Appeals for consideration of Mr. Tucker’s ny compensation Henderson’s workmen’s counsel, claim of ineffective assistance of that Mr. attorney. attorney The stated testimony the trial court heard from the testify Henderson “unable to was. investigating police Anthony officer that identity as to the of the individ- specificity initially Henderson had identified Robert him.” severely uals who assaulted and beat Wiley pushed man who him as the into Appendix, p. attorney 65. The further “ad- judge The trial stated that evi- restroom. in any vised that Mr. Henderson is not of Mr. initial dence state- way agreeing testify against not to David not relevant. ments was attorney Mr. Tucker.” Id. never- indicating theless took the letter as presented Mr. Tucker also Anthony testify would not Henderson counsel, Nelson, trial Robert con- his nothing Mr. Tucker’s trial. He did cerning the letter he received from Mr. the trial. prepare for compensation Henderson’s workmen’s at- trial. torney shortly before and Mr. Tucker’s began, When the that the judge indicated that he believed Anthony counsel learned that Henderson regarding the letter testify, request would did not contents of was, hearsay mind continuance. Henderson in Henderson’s state of were long Mr. Nelson THE COURT: I don’t care how he evidentiary value. and of no coma, in a it make doesn’t been aware that thát he had not testified difference. initially identified Mr. Henderson Tucker, Honor, Wiley, you rather than MR. MORAN: Your don’t Robert prosecution memory? think that impacts he had trusted because documents and him with relevant provide THE COURT: Let the Court of investigation requested police he had man peals handle that. The After Mr. Nelson testified reports. guilty. bring You can all the rec- attempt want, did not in you that hasn’t ords work- with his statement to his Henderson all changed thing, except one it’s attorney compensation because he men’s -doneto me is me even more make hearsay, the the statement to be than believed convinced was before. Ginther hear- judge terminated How the world could there be a person denied difference? We know a ing. Petitioner-Appel- month, trial and a coma for one how would Tucker’s motion for new lee you like to be in a coma for two Ginther had been stated - '40, days? He was a coma irrelevancy.”- an “academic days. weeks after the hearing, Several *5 appeal, Michigan On the Court of appellate counsel received Mr. Tucker’s law peals, citing Michigan case based records. Coun- Mr. Henderson’s medical Washington, Strickland 466 U.S. the reopen sel moved to (1984), 80 L.Ed.2d 674 that the medical ground on the records that Mr. Tucker failed concluded had to that Mr. Henderson had tes- demonstrated error, that, for show but the claimed he falsely Mr. tified Tucker’s trial. would have had a chance of January hearing, appellate At a 1993 acquittal. That court also concluded that the proof counsel made an offer of of medi- prejudice Mr. Tucker had failed to show permitted The trial court cal records. resulting kind" from his counsel’s of the records into counsel to read portions bases, lack those the preparation. On argue concerning the and to their record affirmed the Michigan Appeals engaged then in import. judge a new trial court’s denial of the motion.for following dialog the counsel: vote, By trial. a divided I the trial. I heard THE COURT: saw denied Mr. Tucker’s mo- Supreme Court I believed the com- the witnesses. appeal. for to tion leave Those, you that plainant. records 8, 1996, Tucker a July On Mr. filed in brought today prove here abso- in corpus writ of -"habeas petition for nothing Nothing. at all. lutely a district court. Mr. -Tucker asserted I Absolutely nothing. saw the ter- in claim of assistance of counsel ineffectivfe injuries that man rible this .sus- Amendment. He violation of 'the Sixth tained. asserted, deprived that specifically, robbery. no Now I know there was of the effective assistance of counsel fight reason this knew that attorney’s prepare failure to virtue of his argu- was that there was an started a continuance when he for trial or seek getting changing ment over off or Anthony that Henderson would learned something, or and that man shift this obtain Mr. Henderson’s testify; failure to head; in' put he was was hit over those records medical records and use He walk. He’s hospital. cannot trial; failure impeach Mr. Henderson walking. having trouble indicating that Mr. police reports to obtain 'Robert initially implicated dispute There’s no about Henderson MR. MORAN: Tucker, as the that, Wiley, rather than Your Honor. 752 (2) restroom; in that was based him into the resulted a decision
person pushed who use the letter from on an unreasonable determination failure to compensation light at- the facts of the evidence Henderson’s workmen’s Henderson; presented pro- in the State court torney ceedings. other asserted failures. granted petition.
The district court
interpreted
Several other circuits have
Applying the standard set forth
Strick
2254(d)
§
light
of the amendments to
Washington,
466 U.S.
104
land
resulting
from the enactment
statute
(1984),
L.Ed.2d 674
S.Ct.
decision,
very
AEDPA.
In a
recent
Petitioner-Appellee
court concluded
interpretations
this Court discussed
of the effective assis
deprived
Tucker was
articulating
circuit
the various
courts
of his trial coun
tance of counsel
virtue
arising in
applied
standard to be
to cases
sel’s failure to obtain
Killinger,
Nevers v.
this circuit. See
Interpreting
trial.
medical records before
(6th Cir.1999).
F.3d 352
2254(d)
in the manner outlined
28 U.S.C.
first made note of the
The Nevers court
Appeals
by the United States Court
disjunctive phrases,
contrary
two
“was
to”
Johnson,
the Fifth Circuit in Drinkard v.
and “involved an unreasonable
denied,
(1996), cert.
767-68
2254(d)(1).
of’,
§in
The court discussed
1107, 117
137 L.Ed.2d
520 U.S.
approaches
of the various circuit courts
(1997), the district court concluded
contrary
the “was
to”
have addressed
-jury
trier of
or
fact—
portion
any ap-
of the statute. Under
differently than”
find
—could
concluded,
the Nevers court
proach,
judge.
state court
Memorandum
claim
it was not a claim that the
before
Order,
Opinion
p.
Respondents
contrary
state court’s decision was
Appellant appeals from the district court’s
clearly
Federal
law. Accord-
established
*6
Opinion and Order.
ingly, the court did not decide which of the
varying interpretations
phrase
of the first
II. THE
AND
ANTITERRORISM
2254(d)(1)
Nevers,
§in
preferred.
it
See
EFFECTIVE DEATH PENALTY
trary
or involved an unreasonable
L.Ed.2d 671
Simi
of,
“a
application
clearly
larly,
established
this case does not involve
decision
law,
pure
application
Federal
as determined
law or the
of law
States;
way
of the
material
Supreme
indistinguishable
United
facts
prece-
or
from
on the basis of which the
those
753
”
French,
specifically rejected
First
Circuit
was decided....
Green
dent
(4th Cir.1998),
jurist”
cert. de
approach
Drinkard’s
870
143 F.3d
—
-,
O’Brien,
142
nied,
Crediting
119S.Ct.
145
at 25 n. 7.
U.S.
F.3d
Nevers,
(1999).
Circuits,
also
169
698
See
L.Ed.2d
both the
and Fifth
the Nev-
First
analysis is
Accordingly, our
F.3d at 361.
ers court
stated
application”
“unreasonable
limited to the
judg-
deference to the state courts’
[t]he
2254(d)(1).
in 28
phrase
U.S.C.
required by
ments
the AEDPA is
noted,
lack of
court
As the Nevers
by adopting
achieved
the rule that the
regard
circuits with
among the
agreement
of a state court’s ap-
unreasonableness
of the term
meaning
application
plication
clearly
established
application”
sharp.
See
“unreasonable
precedent will not be “debatable
.Court
Nevers,
the cases
error. See
Cir.1998).
(6th
370,
objective
380
of reason-
fell below
standard
688,
at
104
2052. “A
ableness.
Id.
S.Ct.
Washington,
In
466 U.S.
Strickland
attorney performance
fair assessment
(1984),
668,
2052,
104 S.Ct.
was concerned with the stand. While the trial court’s said on of the articulation constitutional standard Now, impress jury what would clear, persuaded was less than we are not court; impressed what would have applied legal that the court the incorrect trial? since I think this was waiver standard. testimony of an have been Wouldn’t Likewise, expert, testimony but witness ap- peals, consideration of Mr. Tucker’s So, I’m going who was there. decision, peal explic- from the trial court’s grant that and I don’t think that rises to itly the standard enunciated applied Ginther, only the level of rises to the court, articulating That after Strickland. what I would level of this is have done. standard, that Mr. Tuck- simply stated engaged following The court collo- prejudice “failed to er had show quy with Mr. Tucker’s alleged from lack resulting kind counsel’s topic: the same concerning the dis- preparation.” issue before man, court, But this this man’s appeal, THE COURT: and before trict us quite quite was the trial made unreason- whether —it happened what he said clear about of the Strickland stan- able and he didn’t—he seemed to me to dard. talking
know what he was about. tri- Having performance reviewed the Honor, case, in Mr. Tucker’s we are sugges- MR. Your al counsel MORAN: *9 unreasonableness of you persuaded that if that tion we made is wildly differ- the state courts’ Strickland prior heard all of the jurists. reasonable among then had is not debatable things ent he had said and the writ granted the district court expert explain you why peo- While n regard to Mr. Tucker’s specifically after ple things don’t remember claim based counsel’s failure to ob- trial. We conclude that his failure to re- trial, continuance, tain and use medical records at we a quest combined with his conjunction deficiency consider that failure to obtain medical casting records request with counsel’s failure to a continu- reliability serious doubt on the of the testi- ance Anthony when he learned that mony prosecution’s sole witness at trial testify Henderson would and his earlier, failure to his obtain and use con- failure to obtain and use evidence of earli- tradictory statements of the con- witness er, contradictory by statements Mr. attack, cerning the was an error so serious concerning the Henderson assault. Peti- deprived as to have Mr. Tucker of a fair tioner-Appellee Tucker raised each of guaranteed by trial as the Sixth Amend- those failures his counsel as ment.
ground for relief before the district court. judge, having The state trial been in-
Counsel, unprepared and assuming of Mr. formed Tucker’s trial counsel’s prosecution present would no evi failure to obtain and introduce favorable client, against dence his nevertheless de continuance, request evidence and to request clined to a continuance prepare. nevertheless concluded that per- counsel’s so, failure to do when His he knew he formance was within range of reason- unprepared was for trial and had not ob professional able assistance. As we have tained critical evidence of which he was stated, such a only conclusion is not un- aware, could not be representa considered reasonable, but its unreasonableness tion within range the “wide of reasonable among jurists. not debatable reasonable Strickland, professional assistance.” See The trial suggested that the evi- 466 U.S. at Indeed,, Anthony dence of Henderson’s changing Petitioner-Appellee Tucker’s “burden of versions of the assault and the effect of overcoming presumption that the chal injuries memory his on his was irrelevant lenged might action be considered sound because it presented was not at trial. He strategy” is not a difficult one this recognized that he could decide the case. No conceivable trial strategy sound on the case basis of the evidence would include a proceed unpre decision to him, yet before he failed to attach any pared when counsel has learned that his significance to trial counsel’s failure to ad- assumption prosecution would not contrary duce evidence. present evidence was unfounded. The trial court also concluded that The same is true of Tucker’s trial Petitioner-Appellee Tucker had not been counsel’s Anthony failure to obtain prejudiced by any deficiency in his trial medical prior Henderson’s records to trial representation. counsel’s His basis for and to use the records to impeach Mr. conclusion, apparently, was that he Henderson. To the extent that Mr. was so influenced the extent of Henderson’s medical records could be used injuries his statement to demonstrate that memory his concern- on the concerning stand in Tucker’s ing faulty, the assault was particularly assault, volvement that he would not together when considered with evidence of have considered evidence that would assault, varying versions of the coun- have tended Mr. Henderson. sel’s failure to obtain those records could part have been of a sound Applying trial strate- jurist” stan- Rather, gy. dard, as we conclude that jurists conceded at the hearing, he had could not debate the unreasonableness of believed, no trial strategy. He until judge’s the state trial application of the trial began, that the prosecution would not prejudice Strickland standard. We have present Accordingly, per- evidence. previously set forth our conclusion that ceived no prepare strategy reason to for Petitioner-Appellee Tucker satisfied the *10 suggestion The trial court’s that the evi- standard component of Strickland first trial court. We reach dence offered Tucker’s the state before second, concerning counsel at the was an conclusion same of that standard. “academic convinces us that component irrelevancy” prejudice, application he made an unreasonable Anthony Henderson’s evidence of Strickland standard. reliably recall the incidents sur- inability to Any is substantial. rounding his assault further conclude the state trial We necessarily fact would finder of reasonable impeachment court’s evi- conclusion influenced the evidence have been given dence would have been of little value credibility Henderson’s lack of based injuries the extent of the witness’ and the memory. Applying upon his defective testimony arbitrary witness’ at trial is so necessary to return proof standard of as to be of plausible, outside universe conviction, finder of fact reasonable credible outcomes. The trial did not convicted Mr. Tucker likely not have would Anthony hear the evidence of Henderson’s bodily to. great with intent do assault memory difficulties and state reasons for been had all of the relevant evidence harm Rather, stated, rejecting that evidence. Accordingly, at trial. we con- presented essence, in that he would not consider the a contin- requested clude that had counsel badly evidence because he had seen the presented uance and obtained and evi- injured testify at trial. witness Such Anthony show that tending dence of the Strickland standard is as- memory concerning Henderson’s to the standard forth both offensive set faulty, there is sault arbitrary. Court probability the outcome Petitioner- decision, Appeals’ Court criminal case would have been Appellee’s ignored which that court the serious defi- therefore, Petitioner-Appellee, different. performance in trial counsel’s ciencies prejudice has demonstrated satisfaction resulting prejudice, overlooked the obvious component of the Strickland of the second equally pre- offensive to the Strickland for ineffective assistance of counsel. test concludes, therefore, cedent. The Court trial court’s reliance The state in grant- that the district court did not err injuries extent of Petitioner-Appellee petition ing at trial to conclude that and his corpus. for'the writ of habeas impeachment the introduction of evidence have affected the outcome of the
would not IV. CONCLUSION In a case like is indefensible. Tucker’s, in link- which the evidence therefore, We, grant AFFIRM the the vic- ing the defendant to crime is the writ. testimony, evidence that the
tim’s victim’s ' memory changed of the crime has and has SILER, dissenting. Judge, Circuit by injuries necessarily affected would been dissent, I believe that respectfully satisfy probabili- Strickland’s by Michigan The extent of the victim’s the decision ty” standard. Tucker, No. 153967 peals Michigan
injuries and the fact that he testified
was,
13, 1994),
not an
credibility.
(Mich.Ct.App. Sept.
of his
trial are not evidence
application of Strickland
the finder of fact was able to make
unreasonable
While
Washington, 466 U.S.
concerning the witness’ credi-
assessments
(1984), under the standard
made in the
medical
records which
contradicted Ordinarily, when a court makes this deter-
length
mination,
way
as to
present
there is no
finder,
question
original
back to the
fact
in a coma and whether
time that he was
Instead, this
likely
jury.
which
would be a
Therefore,
any broken ribs.
I con-
he had
anomaly:
case
who
presents
conclu-
my analysis
fine
whether this
that it
tried the case said
would
affect
comported
by
sion
the district court below
Tucker could not show to the
his decision.
2254(d).
of 28
the criteria
U.S.C.
that,
Michigan
Appeals
Court of
but for
law
majority correctly analyses
error,
the claimed
he would have had
it
are bound
says
when
we
acquittal.
chance for
If were
reasonable
Killinger,
decisions Nevers v.
169 F.3d
judge,
possible
it
that I
state
(6th Cir.1999);
Billy,
and Herbert v.
might have reached a different conclusion.
(6th Cir.1998). Thus, the
to indicate that is outside ” Nevers, outcomes.’ plausible, credible omitted). (internal citations