NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0742n.06
No. 10-2685
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

EFRAI M GARCI A, Plaintiff-Appellant,

v.

CARMEN PAL MER, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: BATCHEL DER, Chief J udg e, KEI TH, and MARTI N, Circuit J udg es. BOYCE F . MARTIN, JR., Circuit Judge. Efra im Gar cia, a Michig an prisoner convicted of two counts of first-deg ree murder, one count o f as s ault with intent to commit murder, and one
count of possession of a firea rm while committing a felony , appea ls the district court’s dismiss al of his habea s corpus petition filed pursu an t t o 2 8 U.S.C. § 2254. Although the district court denied
Gar cia’ s petition, it g rante d a Certifica te of Appea lability with respe ct to Gar cia’ s claim that his trial counsel was ineffe ctive for failing to investiga te or revie w the work product of an investiga tor from

a rela ted fede ral case . This Court g rante d Gar cia’ s Motion to Ex pand the Certifica te of Appea lability
to include Gar cia’ s claim that his trial counsel was ineffe ctive for failing to use t ra n s cr i p t s of a witness’s prior testimony for impeachme nt. For the following rea sons, the judgme nt of the district court is AF FI RMED.No. 10-2685

Garcia v. Palme r I

. Gar cia’ s convictions arise from a g ang -re lated shooting, known as the “Rutland Street shooting,” that took place in a residential neig hborhood i n Detroit during the e arly morning hours of J uly 17, 1994. The Michig an Court of Appea ls set forth the underly ing fac ts of the shooting, and this Court presumes that those fac ts a re corr ect on habea s revie w. W agner v. Smith , 581 F.3d 410, 413 (6th Cir. 2009) (c iting 28 U.S.C. § 2554(e) (1))

. The Detroit Police Depa

rtment beg an investiga ting the Rutland Street shooting in 1994, and the Fe dera l Bur eau of I nvestig ation took over the i nvestig ation in 1997. L ater that y ear , fede ral
prosec utors broug ht char ges u n d er the Racke teer I nfluenc ed and Corrupt Org anizations Act, 18
U.S .C. §§ 1961–1968 (1970), in fede ral district court ag ainst sever al members of the Cash Fl o w Posse g ang , including Gar cia, J err y Waucaush, Gre g ory Ba llesteros, and Marty Rodrigue z. During the pendency of t he federa l case , the court appointed private investiga tor J ulianne Cuneo to assist
Gar cia with his defe nse. Cuneo dedica ted approximately one hundred hours to the investiga tion of the Rutland Street shooting, during which t ime she obt ained copies of FBI repor ts and the De troit Police Depa

rtment’s homicide file, questioned sever al witnesses, and took photogr aphs. Waucaush,
Ba llesteros, and Rodrigue z plea ded g uilty to cer tain char g es and ag ree d to testify ag ainst Gar cia at trial for a reduc ed sentenc e. The fede ral case never went to trial beca use the fede ral char g es ag ainst
Gar cia, the sole rema ining defe ndant, wer e dismiss ed on jurisdi ct i o n al g rounds in 2000 and Waucaush, B allesteros, a nd Rodrigue z withdrew their plea s.

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Garcia v. Palme r I n 2001, the State of Michig an broug ht char g es ag ainst Garc ia, Waucaush, and Ba llesteros for the Rutland Stree t shooting. Upon lear ning tha t attorney

Fr eder ick Moore ha d been a ppointed
to repr esent Gar cia in the state case , Cuneo ca l led Moore. During the initial call, Cuneo offe red Moore her assist ance and acce ss to her fi l e fre e of char g e, although there i s no indication that she made Moore awa

re of the amount of time that she spent on the investiga tion or of the contents of her file. Moore told Cuneo that her assistance would be valuable and that Gar cia encour ag ed him to talk with her. None theless, he ne ver me t with her.
I I

. During the trial, the prosec ution prese nted an overw helming amount of evidenc e implicating
Gar cia in the Rutland Street shooting. J ust as th ey had done in the fede ral case , Gar cia’ s codefe ndants Waucaush and Ba llesteros pleade d g uilty to cer tain char g es in the state case . They ag ree d
to t es t i fy ag ainst Gar cia at trial and rec eived reduc ed sentenc es for their cooper ation. Be fore Waucaush a

n d B a ll e s te r o s te s ti f

ie d , the prosec ution called sever al witnesses who provided testimony detrimental to Gar cia’ s defe nse by linking Garc i a d i re ct l y to the R utland Street shoot ing or to the
g uns used i n the shooting. The witnesses included me mbers of the Cash Flow Posse, coopera ting witnesses, victim Shirley

J ohnson, and law e nforc ement off icer s. On Aug ust 27, 2002, the jury found Gar cia g uilty of two counts of first-deg ree murder, one
count of assault with intent to commit murder, and one count of p o s s es s i o n of a firea rm while committing a felony

. Gar cia rec eived concur rent terms of life imprisonment without the possibili ty of parole for the murder convictions, a concur rent term of twenty to forty y ear s imprisonment for the

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Garcia v. Palme r assault conviction, and a consec utive term of two y ear s imprisonment for the felony firea rm conviction. On di rec t appea l from his convictions in the Way ne County

Circuit Court, Gar cia asserted that trial counsel was ineffe ctive for “re fusing to meet with an investiga tor that had previously been appointed b y the fede ral court, or revie w information g ather ed by the investiga tor.” People v. Garcia , No. 246154, 2004 WL 1620844, at *4 (Mich. Ct. App. J uly 20, 2004). The Michig an Court of Appea ls aff

irmed Gar cia’ s convictions, id ., and the Michig an Supreme Court denied Gar cia’ s application for

leave to appea l. People v . Garcia , 472 Mich. 868 (2005). Subsequently , Gar cia filed a mot ion for relief from judgment i n which he raised a hos t of

new claims, including a claim that his trial counsel was ineffe ctive fo r fa i ling to impeach Marty Rodrigue z, but the Way

ne County Circuit Court denied the motion on proce dural g rounds. I n particula r, the Circuit Court dismiss ed the claims under Mich. Comp. L aws § 6.508(D)( 3) beca use Gar cia “fa iled to show g ood cause for failure to raise the new issues on appea l, and actua l prejudice for the alleg ed irreg ularities that support the claim for relief .” People v. Garcia , No. 01011952-03 (Way ne Cnty

. Cir. Ct. April 28, 2006). The Michig an Court of Appea ls denied Gar cia’ s application for lea ve to appea l, a s did the Michig an Supreme Court, w ith both courts citing section 6.508(D)

. People v. Garcia , No. 270439 (Mich. Ct. App. Nov. 28, 2006) (unpublished); People v. Garcia , 477 Mich. 1112 (2007).
Gar cia filed this habea s corpus petition pursuant to 28 U.S.C. § 2254 in the Easter n District of Michig an in 2007. I n deny ing G arc ia’s petition, the district court held that Gar cia had not be en

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Garcia v. Palme r p re j u d i ce d by trial counsel’s failure to revie w the investiga tor’s work product and it dismiss ed
Gar cia’s re m ai n ing claims on proce dural g rounds. The district court g rante d a Certifica te of Appea lability as to the orig inal ineffe ctive assistance claim, and this Court g rante d Gar cia’ s motion
to expand the Ce rt ificate to include his claim that trial counsel had been ineffe ctive for failing to impeach Ma

rty Rodrigue z. I I I

. This Court revie ws a d i s t ri ct court’s denial of a writ of habea s corpus de novo. Dando v. Y ukins , 461 F.3d 791, 795 (6th Cir. 2006) (citing W ol f e v. B r i g a n o , 232 F.3d 499, 501 (6th Cir. 2000)). Under the Antiterror ism and Effe ctive Dea th Penalty Ac t , a writ of habea s corpus may be
g rante d “with respe ct to any claim that was adjudicate d on the merits in State court” if the state court’s decisi o n was “contr ary to, or involved an unrea sonable application of, clea rly established
Fe dera l law, as deter

mined by the Supreme Court of the United S tates.” 28 U.S.C. § 2254(d)( 1).
A state court decision is “ contra ry to” clea

rly established fede ral law “if the state court arr ived at a conclusion ‘opposite to that rea ched by [t he Supreme] Court on a question of law or if the state court decide s a case differ ently than [t he Supreme] Court has on a set of materia lly indi s t i n g uishable fac ts.’” W

olfe , 232 F.3d at 501 (quoting W illiams v. Taylor , 529 U.S. 3 6 2 , 405 (2000))

. An
“unre asonable application” of clea rly established fede ral law is wher e “‘the state court identifies the

corr ect g overning leg al principle from [t he Supreme] Court’s decisions but unre a s o n a b ly applies that principle to the fac ts of the prisoner’ s case .’” Id

. (quoting W illiams , 529 U.S. at 407). “I n order for

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Garcia v. Palme r

a fede ral court to f

ind a state court’s application of [S upreme Court] prec edent ‘unre asonable ,’ the
state court’s decision must have been more than incorre ct or err oneous. The state court’s application
must have been ‘objec tively unreas o nable.’ ” W iggins v. Smith , 539 U.S. 510, 520–21 (2003) (citations omitted).
I V. Gar cia claims t h at he rec eived ineffe ctive assistance of counsel beca use his attorney , Fr eder ick Moore, f

ailed to investig ate Juli anne Cune o’s work pr oduct. Under the test set forth in Strickland v. W ashington , 466 U.S. 668 (1984), to establish an ineffe ctive assistance of counsel claim, Gar cia “must show both defic ient perf ormanc e and prejudice .” K

n o wles v. Mirzayance , 556 U.S. 111 (2009). “[A] court deciding an actua l ineffe ctiveness claim must judge the rea sonablene ss of counsel’s challeng ed conduct on the fac ts of the particular case, viewed as of the t ime of counsel’s conduct,” taking into consideration “all the circ umstances.” Strickland , 466 U.S. at 690. The Michig an Court of Appea ls deter mined that Gar cia had not established defic i ent perf ormanc e on the part of Moore. Specifica lly , the Michig an Court of Appea ls held the following : We are not persua ded that the aff idavit from the private investiga tor establishes that defe nse counse l was ineffe ctive. At best, it only establishes that defe nse counsel ref used to meet wit h h er . T he rec ord discloses that much of the information the investiga tor mentions in her aff idavit was available to defe nse counsel, including the FB I ’s “302s” and the FB I ’s copy of the De troit Pol ice De partment’s f ile. Although th e i n vestig ator also conducte d interviews and backg round investiga tions, it is not appar ent from the rec ord that defe nse counsel did not conduct his own investiga tion into these same are as. There fore , we cannot conclude that def ense counsel was ineffe ctive for

failing to take adva

ntag e of the investiga

tor’s ser vices.

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Garcia v. Palme r People v. Garcia , 2004 WL 1620844 , at *4. I n light of the state court’s merits-base d decision
reg arding the perf

ormanc e prong of Gar cia’ s ineffe ctive assistance claim, defe rential revie w under section 2254(d) applies and we may g rant Gar cia’ s habea s petition only if the state court’s decision

was “contr ar y t o , o r i nvolved an unrea sonable application of, clea rly established Fe dera l law, as deter mined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)( 1). 1
To establish defic ient perf ormanc e under S t r i ck l and , the petitioner “must show that
‘counse l’s repr esenta tion fell below an objective standard of rea sonablene ss.’” Harrington v. Richter , 131 S.Ct

. 770, 787 (2011) (quoting Strickland , 466 U.S. at 688). “A court co n s i d er ing a claim of ineffe ctive assistance must apply a ‘strong presumption’ that counsel’s repr esenta tion was within the ‘wide rang e’ of rea sonable profe ssional assistance .” Id

. (quoting Strickland , 466 U.S. at 689). Petitioner bear s the burden of showing that counsel made err ors “so serious that counsel was
not functioning as the counsel g uara nteed the d ef

endant by the Six th Amendment.” Id

. (interna l

T h e d i s t r i c t c o u r t a p p l i e d d e n o v o r e v i e w t o t h i s c l a i m b e c a u s e i t a l l o w e d G a r c i a t o d e p o s e M o o r e , a n d i n 1 B r o w n v
. S m i t h , 5 5 1 F

. 3 d 4 2 4 , 4 2 9 ( 6 t h C i r . 2 0 0 8 ) , w e h e l d t h a t t h e d e f e r e n t i a l r e v i e w m a n d a t e d u n d e r s e c t i o n 2 2 5 4 ( d ) d o e s n o t a p p l y w h e r e “ n e w , s u b s t a n t i a l e v i d e n c e s u p p o r t i n g a h a b e a s c l a i m c o m e s t o l i g h t d u r i n g t h e p r o c e e d i n g s i n f e d e r a l d i s t r i c t c o u r t

. ” H o w e v e r , s i n c e t h e d i s t r i c t c o u r t i s s u e d i t s o p i n i o n , t h e S u p r e m e C o u r t d e c i d e d C u l l e n v
. P i n h o l s t e r , 1 3 1 S

. C t

. 1 3 8 8 ( 2 0 1 1 ) , i n w h i c h i t h e l d t h a t “ [ i ] f a c l a i m h a s b e e n a d j u d i c a t e d o n t h e m e r i t s b y a s t a t e C o u r t , a f e d e r a l h a b e a s p e t i t i o n e r m u s t o v e r c o m e t h e l i m i t a t i o n o f § 2 2 5 4 ( d ) ( 1 ) o n t h e r e c o r d t h a t w a s b e f o r e t h a t s t a t e C o u r t

. ” P i n h o l s t e r , 1 3 1 S

. C t

. a t 1 4 0 0

. B e c a u s e P i n h o l s t e r l i m i t s o u r r e v i e w t o t h e r e c o r d b e f o r e t h e s t a t e c o u r t s u c h t h a t w e c a n n o t c o n s i d e r M o o r e ’ s d e p o s i t i o n , w e w i l l a p p l y s e c t i o n 2 2 5 4 ( d ) ’ s d e f e r e n t i a l s t a n d a r d o f r e v i e w . S e e M c C o y v
. J o n e s , 4 6 3 F

. A p p ’ x 5 4 1 , 5 4 5 ( 6 t h C i r . 2 0 1 2 ) ( c a l l i n g i n t o q u e s t i o n t h e c o n t i n u e d v a l i d i t y o f B r o w n i n l i g h t o f P i n h o l s t e r ) ; J o h n s o n v
. S h e r r

y , 4 6 5 F

. A p p ’ x 4 7 7 , 4 7 8

– 7 9 ( 6 t h C i r . 2 0 1 2 ) ( w e h e l d t h a t , u n d e r P i n h o l s t e r , w e c o u l d n o t c o n s i d e r n e w e v i d e n c e r e s u l t i n g f

r o m a n e v i d e n t i a r y h e a r i n g a t t h e d i s t r i c t c o u r t i n s p i t e o f t h e f a c t t h a t w e h a d r e m a n d e d t h e c a s e t o t h e d i s t r i c t c o u r t f

o r t h e p u r p o s e o f c o n d u c t i n g t h e e v i d e n t i a r y h e a r i n g , a n d a p p l i e d d e f e r e n t i a l r e v i e w u n d e r s e c t i o n 2 2 5 4 ( d ) )

.
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Garcia v. Palme r quotation marks omitted). The Supreme Court has provided courts wi t h g uidance for assessing ineffe ctive-a ssistance c laims based upon an a lleg ation that counsel fa iled to investiga te: [S ]t rate g ic choice s made afte r less than complete investiga tion ar e reasonable prec isely to the extent that rea sonable profe ssional judgme nts support the limit ations on investiga tion. I n other words, counsel has a d u t y to make rea sonable investiga tions or to make a rea sonable decision that makes particula r investiga tions unnece ssary . I n any ineffe ctiveness case , a particula r decision not to investiga te must be direc tly assessed for rea sonablene ss i n al l the circ umstances, apply ing a heavy measure of def

ere nce to c ounsel’s judg ments. Strickland , 466 U.S. at 690–91. “The focus in failure -to-investig ate claims, t h en , i s the

rea sonablene ss of the investig ation (or lac k there of).” English v. Romanowski , 602 F.3d 714, 726 (6th Cir. 2010) (c iting W

iggins , 539 U.S. at 527). “Surmounting Strickland ’s hi g h bar is never an eas y t as k , ” P a dilla v. K entuck y , 130 S.Ct

. 1473, 1485 (2 010), but “[e]st ablishing that a state court’s application of Strickland was unrea sonable under § 2254(d) is all the more difficult.” Richter , 13 1 S

. C t

. at 788. The standards under both Strickland and § 2254(d) are “hig hly defe rential,” id

. (citations omitted), and when courts apply the
two in tandem, the resulting standard is “do u b l y ” defe rential. Id

. (citing Knowles , 129 S.Ct

. at 1420). “[T] he question is not whether counsel’s actions wer e rea sonable. The question is w hether there is any

rea sonable a

rg ument that counsel satisfied Strickland ’s def ere ntial standard.” Id

. Apply ing th e requisite double defe renc e, we uphold the state court’s finding that Moore’ s perf ormanc e was not defic ient. Although Moore’ s decision to fore g o the investiga tion of Cuneo’s file was not advisable, it does not fall outside o f the wide rang e of rea sonable profe ssional assistance

. Cuneo does not claim that, during any of her interac tions with Moore, she made Moore awa re of the

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Garcia v. Palme r fac t tha t she spent approximately one hundred hours on the ca se or of the contents of her file. I t is clea r t h at , at some point afte r Moore’ s initial call with Cuneo, he decide d that he no longe r considere d her assistance valuable, and as the Supreme Court has noted, “[u] nlike a later revie wing court, the attorney observe d the rele vant proce eding s, knew of materia ls outside the rec ord, and interac ted with the client, with opposing counsel, and with the judge .” Id

. Moore had a better sense of his needs than this Cour t co u l d p o ssibly have at this stag e of the litigation, and as his own investiga tion prog resse d, it was his sense that Cuneo’s assistance and file wer e unnece ssary . I t could h av e al so been his sense that, at a cer tain point in his investiga tion, meeting with Cu n eo an d revie wing her file would have been a distraction from more impo rt an t d u t i es rela ting to Gar cia’ s

case . See id

. at 789 (“A n attorney can avoid activities that appea r ‘distrac tive from more important duties.’” (quoting Strickland , 466 U.S. at 689)). The re is more than one r easona ble ar g ument that
Moo re re as o nably deter

mined the investiga tion was unnece ssary , and as a result, we find that the
stat e co u rt ’s deter

mination that Moore provided Gar cia with adequate repr esenta tion was not
contra ry to, or an unre asonable application of, c lear ly established fe dera l law.
V. Gar cia claims that his attorney ’s failure t o i m p ea ch Marty Rodrigue z at trial constitutes ineffe ctive assistance of counsel. I n particula r, Ga rcia arg ues that his attorney should have impeache d Rodrigue z with evidenc e that Rodrigue z was a defe ndant in the fede ral case and that the fede ral g overnme nt ga

ve him a plea

deal in exchang e for

his inculpatory

statements about Ga

rcia

.

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Garcia v. Palme r Be fore addre ssing the merits of this claim, we must deter mine if the claim is proper ly befor e

us or i f Gar cia procedur ally defa ulted the claim. Although the g overnme nt did not raise the issue of proce dural defa

ult on a ppeal, we may

raise it sua sponte. Hodges v . Colson , 711 F.3d 589, 601 n.2 (6th Cir. 2013) (c iting Elzy v. United States , 205 F.3d 882, 886 ( 6th Cir. 2000)). The state court did not co n s ider this claim on the merits, but instead dismiss ed it on state
proce dural g rounds. I n particula r, the Way ne County Circuit Court dismiss ed the claim under Mich. Comp. L aws § 6.508(D )(3) beca use Ga rcia “fa iled to show g ood cause for f ailure to ra ise the new issues on appea l, and actua l prejudice for the alleg ed irreg ularities that support the claim for relief .” People v. Garcia , No. 01011952-03 (Way ne Cnty

. Cir. Ct. April 28, 2006). Purs u an t t o section 6.508(D), the Michig an Court of Appea ls and the Michig an S u p re m e Court denied Gar cia’ s applications for leave to appea l. People v. Ga r cia , No. 270439 (Mich. Ct. App. Nov. 28, 2006) (unpublished); People v . Garcia , 477 Mich. 1112 (2007).
A habea s petitioner proce durally defa ults a claim if: “‘ (1) the petitioner fails to comply with

a state proce dural rule; (2) the state courts en force the rule; (3) the state proce dural rule is an adequate and independe nt state g round for deny ing revie w of a fede ral constitutional claim; and (4) the petitioner cannot show cause and prejudice excusing the defa ult.’” Guilmette v. Howes , 624 F.3d 286, 290 (6th Cir. 2010) (quoting Tolli ver v . Sheets , 594 F.3d 900, 928 n.11 ( 6th Cir. 2010)). The circ umstances surrounding Gar cia’ s ineffe ctive-a ssistance claim satisfy eac h element of the proce dural-de fault test. First, Gar cia failed to c omply with Mic h. Comp. L aws § 6.508(D)( 3). Second , t h e M ichig an courts enfor ced the rule, with the W ay ne C ounty Circuit Court providing a

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Garcia v. Palme r thoroug h explanation of section 6

. 5 0 8 (D )(3) ’s application. Third, “[i] t is well-e stablished in this circ u i t t h at the proce dural bar set forth in Rule 6.508(d) constitutes an adequate and independe nt
g round on which the Michig an S upreme Court may rely in forec losing re view of f eder al claims.” Howard v

. Bouchard , 405 F.3d 459, 477 (6th Cir. 2005)

. Finally , Gar cia never attempted to show

cause for his failure to raise the claim on direc t appea l. I nstead of arg uing cause in the brief that he submitt ed to this Court, Gar cia alleg ed that he broug ht the claim proper ly on direc t appea l; howeve r, in his memorandum in support of his habe as petition, he acknow ledg ed that he did not bring the claim on direc t appea l. Garc ia proc edura lly defa ulted on this claim.
For the above rea sons, the judgme nt deny ing ha beas c orpus re lief is AFF I RMED.

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