The Honor able Ka rl S. F orester , Senior United States District J udg e for the Easter n District * of Ke ntucky , sitti ng by

desig nation. NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 08a0724n.06 F iled: Novem ber 24, 2008 No. 07-1795 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT QUINN P OINDEXTER, P etitioner -Appellee,
v. RA YM ON D B OOK

ER , W ar de n, Respondent-Appellan t. ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EA L FR OM THE U NI TED STA TES DIST RI CT CO UR T F OR THE EASTE RN DISTRICT OF M ICHIGAN

Before: COLE and GIBBONS, Circuit Judges; F OREST ER, Senior District Judge. * JULIA SMITH GIBBONS , Circuit Judge . The wa rden ap peals the judg ment of the district court conditi o n al l y gra n ting a writ of ha be as c or

pu s purs ua

nt t o 2 8 U .S. C. § 22 54 to petitioner-a

ppellee Q uinn Poindex ter. The district court held that Poindext er r ece ived ineff ective assistance of counse l and th at t h e M i ch i gan Court of Appe als’s finding to the contra ry was a n
unrea sonable a

pplication of Supreme Court pr ece dent. For the following rea son s , we a g ree and

a ff ir m th e jud g me nt o f t

he dis tr ic t c ourt
. I. This case arises f

rom the shooting of

Timothy Ruff l ate one night in Detroit. Ruff testified that he wa lked alone pa st Poi ndexter’s house on his way to meet friends at approximately two2

o ’ c l o c k i n t h e m o r

n i n g . A s R

u f f p a s s e d P o i n d e x t e r ’ s h o m e , a c c o r d i n g t o R u f f ’ s t e s t i m o n y, Poindex ter ra

n out of the house without a shirt, pants, socks, or shoes. He ha d a long g un and, without wa

rning , shot at Ruff multipl e times. The third shot, f ired from appr ox imately

ten to fiftee n y ard s awa y , h it Ru ff in t he fo re he a d, de str oyingon e e y e and dis pla c ingthe oth e r f

ro m hi s e y e so c ke t. Ruff testified that he did not n ame his assa ilant when aske d by police off

icer s at the sce ne, but informed the police that the shooter lived in the “ third house” a nd pointe d t o wards the home that Poindex ter, Walter Petty , J r., Sabrina Moore, and Dion Griff in shared. At the time Ruff pointed at the house, his ey es had a lrea dy been de stroy ed. Ruff sur vived but is blind as a result. T h e p ro s ec u tion’s theory was that the shooter

thus ran out of his house ha lf-nake d, unprovoked, an d s h o t Ruff. The state pre sented two witnesse s to the Michiga n trial court who ide nti fi e d Po ind e xter

a s th e sh oo te r, Poi nd e xter ’s ro omm a te Pe tty and Ruff. P ett y did no t na

me Poindex ter a s the shooter until approximately eig hteen da y s after the shooting, w hen he himself w as questioned by

the police a

bout his invol vement in an unr elated alterc ation. Petty then informed the p o l i c e t h a tP o i n d e x t e r

h a d g o n e t o P e t t y ’ s g i r l f r i e n d ’ s h o u s e a f

t e r t h e s h o o t i n g t o f

i n d P e t t y . In contra st to Ruff’s testimony that Ruff was walking alone a nd was shot for no r eason, Petty alleg ed that Poindex ter c onfided in him that three men were try ing to brea k into Poi ndexter’s ca

r and shot at Poindex ter whe n he ca me outside. Acc ording to Petty , Poindex ter said that a fter the three men shot at him, he shot back and notice d that two men fled a nd one man wa s ly ing on the g round. On appr ox imately

the same da

y that Petty

implicat ed P o indext er in the shooting , Ruff identified the shooter

as “B ig 50,” Poindex ter’s nic kname. Ruff stated that he had not mentioned3

“ B ig 50 ” a t th e tim e of the sh oo tin g be c a us e he wa s af

ra id t hat th e sh oo te r w a s st ill the re and wo uld shoot him aga in. F oll ow inga

be nc h tr ia l, t

he tr ia l c ourt

a c qu itt e d Po ind e xter

of the c ha rg e d o ff e ns e , a ssa ult wi th i nte nt t o mu

rd e r, bu t found

him g uil ty of the le sse r i nc lud e d o ff

e ns e of a ssa ult wi th i nte nt t o commit gr eat bodily harm less than m urder and felony firea rm. Poindex ter wa s sentence d to thirteen

and on e ha lf y e ars to t we nty y e ars in pr iso n fo r a ssa

ult and tw o y e ars in p ri so n f

or fe lony fi re a rm . Poi nd e xter

tim ely a pp e a le d a nd fi le d a mot ion to r e mand

fo r a n e vid e nti ary

he ari ngpurs ua

nt t o People v . Ginther , 212 N.W.2d 922 (Mich. 1973) ( “ Ginther hear ing” ). People v . Poindexte r , No. 233907 (Mich. Ct. App. Apr. 25, 2002) . The Michigan Court of Appe als g rante d the motion, and Poindex ter prese nted three day s of testimony alleg ing ine ffe ctive assistanc e of c ounsel. Poindex ter argued that his c ounsel, Robert Slameka, failed to c all alibi witnesses, failed to c all a medica l expert to testify to the victim’s medical re cords, a nd misadvised Poindex ter not to testify

. Three alibi witnesses, Dion Griff in, Sabrina Moore , and Violet Hicks, a ll testified at the Ginther hear ing that Poindex ter wa s innocent and that they wer e with P o i ndexter in the home he sh are d w ithGr if

fi n, Mo or e , a

nd Pe tty a t th e tim e of

the sh oo tin g . Al l th re e sa id t hat Po ind e xter

did not leave the house until after he hea rd shots, and t h en he ca lled the police. Nota bly , Griff in and Mo or e re c ounte d th a t Pe tty wa s a g itate d, sa id s ome on e ow e d him mon e y , a nd le ft the same ho us e
ang ri ly mom e nts be fo re the y

he ard sh ots . T he ir

te stimo ny est abli sh e d th a t Pe tty ha d a mot ive to shoot someone that eve ning a nd that he exited shortly

befor e t he shooting from the same “third” house that Ruff indicated to the police. The ir testimony thus not only

sup p o rted Poindext er’ s innocenc e but also implicated Petty

.I t is un c le ar f ro m th e re c or d w ho “ Re d” is. 1 4 J uawa nda and Robe rt Robinson, neighbor s of Poindex t er and Petty , also testified at the Ginther hear ing. Juawanda

Robinson st ated that she hear d two people arguing immediate ly befor e the gun s h o t s . S h e al so hear d Ruff identify “Red” as the shooter

to the police at the sc ene. T he 1 Robinsons st ated that they had not re ceive d s u b p o en as t o testify at trial, thoug h Slameka testified that he ha d s ub po e na e d th e m. N e ve rt he le ss, the y

a pp e are d at Poin de xter ’s tr ia l a ft e r a ne ig hb or tol d the m to a tte nd . T he y

ha pp e ne d to arr ive duri ng c los ing argume nts , and Slame ka de c lin e d to re qu e st
a c on tin ua nc e or to re qu e st that th e pr oo fs be re op e ne d in or de r t o c a ll the Rob ins on s a s w itn e sse s. Thus five witnesse s were not called to testify at P oindext er’ s trial, who t og ether would have of fer ed testimony that Ruff’s initial identification of the “ third house” a nd “Red” as the shooter

applied eq u al l y t o i mp l i ca t e P et t y

as t o P o i n d ex t er , t h at P et ty h ad a mo t i v e t o s h o o ts o m eo n e t h at ev en i n g, and that Poindext er w as in his bedroom at the time of the shooting. After three day s of testimony , including a n attempt by

Poin dexter to present e vidence that he passe d a lie dete ctor test, the trial court held that Slameka’s failure to call witnesses a nd his advice to Poindex ter not to testify wer e par t of his tr ial strateg y . The trial c ourt conc luded that counse l had not been inef

fec tive. Poi nd e x ter ti me ly

a pp e a le d, a lle g ingine ff

e c tiv e a ssi sta

nc e of c ouns e l on

fi ve g ro un ds :

“ [Slame ka ] (1 ) f

a ile d to pr e se nt a

de fe ns e ; ( 2) fa ile d to c a ll c re dib le and a va ila ble de fe ns e wi tne sse s; (3) a dvised defe n d ant not to testify ; (4) fa iled to disclose his prior repr esentation of a prose cution witness; and (5) f

ailed to ca ll an expert or phy sician t o explain the contents of the victim’s medica l
rec ords.” People v . Poindexte r , No. 233907, 2003 Mich. App. L EXI S 2638, at *6 (Mich. Ct. App.5

Oct. 21, 2003) (footnote omitted). The Michig an Court of Appea ls f ound that Poindex ter di d not
ov e rc ome the str on g pr e su mpt ion that his c ouns e l’ s de c isi on s we re ba se d on tr ia l str a te g y and did not show that, but for counse l’s mistakes, the re sult of the trial would have been dif fer ent. Poi nd e xter

the n f ile d a n a pp lic a tio n f

or le a ve t o a

pp e a l in the Mic hig an Su

pr e me Court , arguing a ctual innoce nce a nd failure by

the Michig an Court of Appe als to consider his poly g raph
resu l t s , wh i ch v er i fi edh i s i n n o ce n ce , wh en af fi rm i n g P o i n d ex t er ’s conviction. Poindexte r v. Booke r , No. 05-CV-71607, slip op. at 7 (E.D. Mich. Ma y 30, 2007) (“

Poindexte r ” ). Th e Mic hig an Su pr e me Court denied Poindext er’ s application for leave to appea l. Poindex ter filed a

petition in the Un i t ed S t ates District Court for the Easter n District of Michig an for

a wr it of habeas corpus , ar gu i ng that 1) “the state cour t’s decision that trial counse l was not i neff

ective was contrary to and an unrea sonable application of S upreme Court prec edent” ; and 2) Poindex ter “ is actually innocent.” Poindexte r III , slip op. at 7. I n his ineffe ctive assistanc e of counse l claim, P oindext er alleg ed si x way s in which counsel was inef fec tive. The district cour

t found that two of the g rounds war rante d ha be as relief

. First, the distric t co u rt found that trial counsel’s de cision not to present alibi witnesses wa s not based in sound trial strateg y and pre judiced the outcome of the trial. Second, the district c ourt found that trial c ounsel failed to subpoe na and produce two additional witnesses, and but for this failure to reque st a continuanc e whe n they did not

a pp e ar o r t o mov e to r e op e n th e te sti mony wh e n th e y

did a pp e ar, the re is a

re a so na ble pr ob a bil ity that the outcome would have bee n differ ent. The district c ourt thus concluded that trial counsel wa s ineffe ctive and c onditionally g rante d habeas relief

.6

T h e wa rd en ti mely

appea led to this court. The wa rden ne x t made a motion to stay the i s s u an ce of the wr it pending a ppeal. Poindexter responde d to the war den’s motion, moved for immediate bail re lease from custody , and made a motion for an unconditional writ of habeas corpus and immediate r elea se. On Septembe r 20, 2007, the dist rict court enter ed a published or der de ny ing Poindex ter’s motion for a n unconditional writ of habeas corpus , g ra nti ngthe wa

rd en’s mo tion t o stay the writ of habeas c or

pu s pe nd ing a

pp e a l, and g ra

nti ngPoi nd e xter ’s imm e diate re le a se on ba il. Poindexte r v. Booke r , No. 05-CV-71607, slip op. at 1, 8 (E.D. Mich. Sept. 20, 2007). The district court de nied the wa

rden’ s motion for re co n s i d eration of Poindex ter’s r elea se on bond pending appea l. Poindexte r v. Booke r , No. 05-CV-71607, slip op. at 1 (E.D . Mich. Oct. 26, 2007). II. We review de novo a district cour t’s g rant of a

writ of habeas corpus

. W olfe v. Brigano , 232 F.3d 499, 501 ( 6th Cir. 2000). Finding s of fa ct by t h e d i s t ri ct cour t are revie wed f

or cle ar e rror unless the district court’ s fa ctual determinations are based only on a re view of the state cour t transcr ipt, in which case they are revie wed de novo

. Dando v. Yukins , 461 F.3d 791, 796 ( 6th Cir. 2006). Fa ctual dete rminations by a state c ourt are presumed to be corr ect unless r ebutted by clea r and convinc ing e vidence . 28 U.S.C. § 2254(e)(1)

. Pursuant to the Antiterror ism and Effec tive Death Penalty Act of 1996 (“A EDPA”), a fede ral court may g rant a state prisoner habeas relief only if the state c ourt’s dec ision (1 ) re su lte d in a de c isi on that wa s c on tr a ry to, or inv olv e d an un reas ona ble application of, c lear ly

established Feder al l aw, as deter mined by the Supreme Court of the United States; or (2) r esulted in a de cision that was based o n an u n rea sonable de termination of the fa ct s i nl i gh to f t h e e v i d en ce p re s en t edi nt h e S t at e c o u rt p ro ce ed i n g.7

28 U. S.C. § 2 25 4( d) . T he state c ourt ’s de c isi on mus t be no t on ly

inc or rect bu t a lso ob

je c tiv e ly
unrea sonable. Ro mp illa v . B e ar d , 54 5 U. S. 37 4, 40 4 ( 20 05 ); W igg ins v . S

mi th , 539 U.S. 510, 520- 21 (2 00 3) ; W

illiams v. Taylor , 5 2 9 U.S . 362, 409 (2000). The Supreme Court has he ld that the

“ un re a so na

ble a pp lic a tio n” langua g e pe rm its a re vie wi ng c ourt to g ra nt habeas re lie f “ if

the state court identifies the corr ect g overningleg al principle f rom [the Supreme] C ourt’s d ecisions but
unrea sonably

applies that principle to the fac ts of the prisoner ’s ca se.” W

illiams , 529 U.S. at 413. I n analy zing whethe r a state court de cision is an “u n rea sonable a pplication” of Supre me Court pr e c e de nt, a

fe de ra l c ourt

sh ou ld r e ly

on ly on Sup re me Court

ho ldi ng s, no t dic ta . Id . at 412. A. I n order to obtain habeas relief for ineffec tive assistance of counse l, Poindex ter must show that the state court’s decision was contra ry to, or an unrea sonable application of, Suprem e C ourt p r e c e d e n t , n a m e l y Strickland v. W ashington , 466 U.S. 668 (1984). In Strickland , the Supreme Court held that def

ense c ounsel was ineffe ctive only if the defe ndant showed tha t 1) counsel’ s perf

ormanc e “fe ll below an objective standard of rea sonablene ss”; and 2) this deficient perf ormanc e pre

judiced the def ense. Id . at 68 8, 69 2. I n or de r to pr ov e the pe rf or manc e pr on g , Po ind e xter mus t ov e rc ome
a strong presumption that the action was part of “sound trial strateg y .” Id . at 689. I n order to prove the pre judice prong , Poindex ter must show that “ther e is a re ason ab l e probability that, but for counsel’s unpr ofessional e rror s, the result of the proce eding would have been dif fer ent.” Id . at 694. I n ana ly zing the me ri ts of an ine ff e c tiv e a ssi sta

nc e c la im, we re vie w the c la im de novo since it is a mix ed question of law a nd fac t. United States v. W agner , 382 F.3d 598, 615 (6th Cir. 2004). The district c ourt found that two sepa rate inactions of counse l warr anted habeas relief : counsel’s8

failure to investigate alibi witnesses and to investig ate witnesse s who wo u ld have supporte d the the or y that a no the r pe rs on sh ot the vic tim . We fi nd that habeas re lie f on bot

h g ro un ds wa s p ro pe rl y g rante d. B. De f e n s e c o u n s e l “ h a s a

d u t y t o m a k e r e a s o n a

b l e i n v e s t i g a t i o n s o r

t o m a k e a

r e a so nable decision that make s particular investigations unne cessa ry . I n any ineffe ctiveness c ase, a

particula r de c isi on no t to inv e sti g a te mus t be dir e c tly a sse sse d f

or re a so na ble ne ss i n a ll the c ircum st a nc e s, applying a heavy measure of defe renc e to counsel’s judg ments.” Strickland , 466 U. S. at 69 1. Whil e “strate g ic choice s made afte r thoroug h investigation of law and f acts re levant to plausible options
are virtually

unchalleng eable ,” Id

. at 6 9 0 , d ec i s i o n s m ad e by co u n s el af t er l e s s t h o ro u gh investigations “ are rea sonable prec isely to the extent that reasonable profe ssional judgments support the limitations on investigation.” Id

. at 691. I n deter mining what is obje ctively unrea sonable, we “conduc t an objective r eview of [counsel’s] performanc e, mea sured f o r ‘r ea sonablene ss under preva iling profe ssional nor ms,’ which includes a

context-depende nt consideration of the cha lleng ed conduct a s seen ‘ from counse l’s perspe ctive at the time.’ ” W iggins , 539 U. S
. at 5 2 3 (quot ing Strickland , 466 U.S. at 688-89) ( internal c itations omi tted). C o u n s e l ’ s d

u t y t o i n v e s t i g a t e h a s b e e nr e p e a t e d l y r e a f f i r m e d b y t h e S u p r e m e C o u rt
. In W ig g ins , th e Sup re me Court fo un d c ouns e l in e ff

e c tiv e fo r u

nr e a so na bly fa ili ngto i nv e sti g a te W i ggi n s ’s b ackg round for mitigating evidenc e. Id . at 534. Thoug h prese nted with social ser vice
rec ords that hinted at Wigg ins’s troubled past, counse l failed to i nvestig ate and thus failed to uncove r his ex tensive history

of phy sical, sexual, and psy cholog ical abuse . Whil e empha siz ing that9

Strickland

does not requir e def

ense c ounsel to investigate eve ry conce ivable evide nce tr ail, the Court
never theless held that counse l’s “dec is i o n t o en d their investig ation when they did was neither consistent with the profe ssional standards that preva iled [at the time] , nor re asonable in light of the
e vid e nc e c ouns el unc ov e re d .

. . e vid e nc e that w ou ld h a ve le d a re a so na bly c omp e te nt atto rn e y

to investigate furthe r.” Id . The Court conc luded that couns el’s “incomplete investig ation was the result of inattention, not rea soned strate g ic judg ment.” Id

. Simi larly , the Supreme Court in W ill iam s found def

ense c ounsel constitutionally ineffe ctive for failing to inve stigate Wil liams’s backg round. W illiams , 529 U.S. at 399. The Court found that Willi a ms’ s atto rn e y s u

nr e a so na bly fa ile d to se e k r e c or ds and “ fa ile d e ve n to re tur

n th e ph on e c a ll of a c ertified public a ccounta nt who had off

ere d to testify ” on Willi ams’s beha lf. Id . at 396. Consist ent with W

iggins and W

illiams , we have also gra nted habeas relief

when c ounsel fa ile d to inv e stigate, par tic ula rl y wh e n c ouns e l de c lin e d to int e rv ie w k e y de fe ns e wi tne sse s. Al tho ug h o ur

de c isi on s are no t c on tr oll ing un de r AE DPA , the y of fe r i ns ig ht o n th e re a so na

ble ne ss of the state c ourt’s application of Strickland

. Ste war t v . E rwi n , 503 F.3d 488, 493 ( 6th Cir. 20 07 ) ( “ Whil e th e pri nciple s o f ‘ c le arl y e sta bli sh e d la w’ are to b e de te rm ine d s ole ly by re so rt to Supreme Court ruling s, the dec isions of lower fe dera l courts m ay be instructive in asse ssing the
rea sonablene ss of a state court’s resolution of an issue.”). In Ra mo ne z v . B e rg hu is , we f ound that counsel wa s ineffe ctive whe n counsel rec og nized the possibili ty that three witnesses could provide testimony benef icial to the def

endant a nd y et failed to interview them. 490 F.3d 482, 489 (6th Cir. 2007). In Town s v . S

mi th , w e e xplic itl y

state d th a t c ouns e l’ s “ du ty inc lud e s th e ob lig a tio n to investigate all witnesse s who m ay have inf

ormation conc erninghis or her c lient’s g uilt or10

inn oc e nc e .” 39 5 F .3 d 2 51 , 2 58 (6 th C ir . 2 00 5) ; see also Clinkscale v . Carter , 3 75 F .3 d 4 30 , 4 43 (6 th Cir . 2 00 4) (c oll e c tin g Sixth C ir c uit c a se s w he re c ouns e l w a s f ound ine ff e c ti ve for fai lin g to investigate potential alib i wi tnesses). The se ca ses demonstrate that the fa ilure to interview ke y defe nse witnesses is objec tively unrea sonable in lig ht of Strickland

. I n th is c a se , Po ind e xter ’s c ouns e l, S lame ka , f a ile d to inv e sti g a te tw o wi tne sse s, Di on Gr if fi n
an d S ab ri n a M o o re , wh o t o l d S l am e k a t h at t h ey

we re wi t h P o i n d ex t er

at t h e t i m e o f t h e s h o o t i n g. Griff in lived w i t h P oindext er a nd Petty , and Moore , also a roommate , was Poindext er’ s fiancé e. Griff in testified at the G in the r hear in g tha t he wo uld have te sti fi e d at tr ia l th a t he wa s w ith Poi nd e xter

duri ngthe sh oo tin g . A ft e r w a tc hin g te le vis ion tog e the r, he and

his g ir lf ri e nd we nt t o their room, and Poindexter and Moore went to their own be droom. He te stified: Petty came , g ot the phone, which w as in, Ibelieve Mr . Poindex ter’s r oom, got it from him. He went to the ba ck, but w hen he ca me in, what I

do reme mber a

bout that night is that he wa s a

lit tle a g itate d. An d he wa s a little a g g re ssi ve wi th his ton e that ni g ht.

. . . Not even 10 minutes ha d went by from the phone conver sation, befor e he tur ns and lea ves. . . . I

hear d the door s l am . . . . I m ea n just 10 mi nutes afte r that door shut, Iwould hear

shots. . . . may

be thre e, four

. ( Ginther He ari ngTr ans c ri pt ( “ GH T” ) at 81 .) Af te r h e ari ngsh ots , G ri ff

in s a id t hat he and

his g irlfriend le ft their bedroom and followed Poindex ter onto the fr ont porch. Poindext er w as ca rry ing the phone that Petty

had left behind. A neig hbor told them to call the police, a nd Poindex ter “ had told he r [he was] calling the m.” Id

. at 83. I n further defe nse of Poindexter, Griffin testified at the Gi nther hear ing that he had ne ver know n Poindex ter to own a ny g uns, but he knew Petty

owned
sever al g uns. Although G riffin a ccompa n ie d Po in d e xte r

to me e t with Sl ameka , Slameka neve r interview ed him. Griffin also testified that, without being intervie wed by Slameka, he ne verthe less approa ched11

Slameka on a later date and of fer ed to testify at P oindext er’ s trial. Acc ording to Griffin, Slameka “wa s rea lly adama

nt on not lis tening , and not re ally taking interest in what we wer e say ing.” Id . at 92. Moore similarly

testified at the Gi nth e r he ari ng that sh e wa s wi th Poi nd ex ter in thei r bedroom whe n Petty

enter ed the house , said someone owed him money , made a phone ca ll, and left th e h o u s e . Sh e a c c o mp an ie d Po in d e xte r to f iv e o f h is me e ti n g s w it

h Sl a me k a an d r e p o rte d

that Slameka neve r once asked her questions r eg arding the shooting e ven thoug h he knew that she wa s with Poindex ter that e vening

. Poindex ter must ove rcome the presumption that, “under the circ umstances, the c halleng ed action ‘mig ht be considere d sound trial strateg y .’” Strickland , 4 6 6 U. S
. at 6 8 9 (q u o t i n g Miche l v. Louisi ana , 350 U.S. 91, 101 (1955)). In this case, h o we ver, Slameka ’s fa ilure to ca ll Griffin and Moore is objec tively

unrea sonable. When Poindex ter mentioned G riffin a nd Moore a s potential witnesses the fir st tim e he me t with Slameka, S lameka told him that the judg e would not find them
cre dible witnesses bec ause of their close relationships with Poindex ter. As the district court noted, this reasoning is deficient beca use alibi witnesses often ha ve close relationships wit h the def endant

. Poindexte r , slip o p . at 15. At t he Gi nth e r he ari ng , w he n Sl a me ka wa s a sk e d w hy

he did no t c a ll Griff in, he re sponded, “I can’ t honestly g ive y ou an answ er to that.” (GHT at 35.) As in W iggins , c ouns e l w a s aware o f ev ide nc e po te nti a lly be ne fi c ia l to the de fe nd ant a nd fa ile d to inv e sti g a te further . Thoug h counsel must not investigate ever y conce ivable line of evidenc e, the de cision not to c all Griff

in a nd Moore was not w ithin a “ra ng e of leg itimate decisions,” Strickland , 466 U.S. at 68 9, and is n ot t he pr od uct of so un d tr ia l st

rate g y . F a ilure to i nv e sti g a te tw o a lib i w itn e sse s,12

pa rt ic ula rl y wh e n th e wi tne sse s b oth pe rs on a lly

of fe re d to pr ov ide te sti mo ny be ne fi c ia l to Poindex ter, is there fore objectively unrea sonable, a

nd the state court’s decision to the contra ry was
an unre asonable application of Strickland

. Gi ve n th a t Sla

me ka ’s pe rf

or manc e is d e fi c ie nt, Poi nd e xter mus t a lso sh owthat th is perf ormanc e pre

judiced him “re sulting in an unre liable or funda mentally unfair outcome.” Miller

v . F ra nc is , 2 69 F .3 d 6 09 , 6 15 (6 th C ir . 2 00 1) ; Strickland , 4 66 U. S. at 69 2, 69 4. Poi nd e xter mus t show that there is a rea sonable probability that but f or Slameka’s failure to investigate Griff in and Mo or e , the re su lt of the tr ia l wou ld have be e n dif fe re nt. “ A re a so na

ble pr ob a bil ity is a pr ob a bil ity sufficie nt to undermine confide nce in the outc ome.” Strickland , 466 U. S. at 69 4; W ilson v. Parker , 515 F.3d 682, 698- 99 (6th Cir. 2008). T h e dis trict court r elied on the tria l court’s stateme nt that
e ith e r P e tty

or Poi nd e xter

sh ot Ruff

to c on c lud e that th e re wa s a re a so na ble pr ob a bil ity that if Slameka had c alled Gr iffin and Moore to testify , the totality of the e vidence “would have suppor ted a finding that Petty , not [ Poindex ter], was the shooter .” We ag ree . Acc ording to Griffin, Poindex ter was in his bedroom with Moore when the shots we re f ired and could not ha

ve left the house without Gr iffin’s seeing him. Accor ding to Moore , Poindex ter wa s in his bedroom with her whe n the shots were fired a nd did not leave the bedroom until afte r Ruff wa s injured. This testimony

is sufficient to under

mine co n fi dence in Poindex ter’s c onviction, and we aff irm the district court’s f

inding of ineffe ctive counse l and g rant of habeas relief on this ground. C. Poin d e xte r a ls o a ll e g e s th a t Sl a me k a f a il e d to inv e s ti g a te tw o a d d it io n a l w it n e s ses who would have provided further beneficia l testimony . As noted above , trial counsel’ s decision whethe r13

to invest i gate witnesse s is given “ a hea vy measure of def

ere nce” and is revie wed f or objec tive
unrea sonablene ss. Strickland , 466 U.S. at 691. J uawa nda and Robe rt Robinson are Poindex ter’s neig hbors. Slameka testified a t the Ginther hear ing that he bot h called and s ubpoenae d the R obinsons. The Robi nsons testified that they did not
rec eive a subpoena, a

nd Slameka has no doc umentation to show that he sent a subpoena. Juawanda Robinson testi fied at the Gi nth e r hear ing that she was pr epar ed to re count that she he ard two me n arguing immediate ly prior to the shooting. She a lso heard the victim tell the police that “Red shot me.” Rober

t Robinson t estified that he was going to sleep and was awake ned by the shooting. H e saw Ruff c raw ling on the g round and, in re sponse to a q uestion by the police, pointing in the direc tion that the shooter fled. The Robinsons appea

red at trial to testify during Slameka’s closing arg uments. They stated that th ou g h th e y

did no t re c e ive a su

bp oe na , a ne ig hb or tol d the m to te sti fy . Wh e n th e y arr ive d in court, Slameka

did not ask to reopen pr oofs. Poindex ter wa s adama nt before trial that the Robinsons testify and re counted the f

ollowing a s to what happe ned whe n they did appea

r: Then I asked him, I

was like Robinsons is here. He was like just telli ng me to shut up. Iwas like they witnesses, what are y ou talking about. Then he was like he w as like he we nt on with his closing ar g ument. But I did ask him to do one thing . Iasked could y ou at least put it on the rec ord they showed up or something. He said how am Isu pp os e d to do tha

t. I sa id you a tto rn e y . B y

that ti me Iha d g ot u

ps e t, b e c a us e Ife lt then – I felt by that time that he was r ailroadingme. (GHT at 176.) After being asked by Poindex ter, Slameka did ask the cour

t to note that the witnesses ha d a pp e are d. Slame ka

te sti fi e d th a t he did

no t a sk to r e op en proof

s b e c a us e he tho ug ht i t w ou ld be “pe culiar” to postpone closing a rg uments. (GHT at 35.) As the district cour t noted, “under Mic hig an la

w, it i s with in a tri a l court ’s dis c re tio n to re op e n pro of s to per mit a la te -a rr ivi ngwi tne ss14

to testify .” Poindexte r , s l i p o p . at 2 0 (c i t i n g People v . Colli er , 425 N.W.2d 118, 121 (Mich. Ct. App. 19 88 )) . T he tr ia l c ourt

he ld t hat Sla me ka wa s n ot i ne ff

e c tiv e in fa ili ng to ca ll the Rob ins on s b e c a us e they wer e not ey ewitnesses. The M ichig an Court of Appe als aff irmed, holding that Slameka had made a “strate g ic dec ision” not to call them. Whil e “ [i]t is tr

ue tha t Strickland and W

iggins compel a f

eder al habe as cour

t to give a wide berth to trial counse l’s actions,” Ege v . Y ukins , 485 F .3 d 364 , 379 (6 th Cir . 2 00 7) , th e re is a lim it t o that defe renc e. Id . at 37 8; Ramonez , 4 90 F .3 d at 48 9 ( “ Con sti tut ion a lly e ff e c ti ve cou ns e l mu st develop tria l strateg y

in the true s en s e – not what be ars a false la bel of ‘strateg y ’ – base d on what investigation revea ls witnesses will actually testify to, not based on what counsel gue sses they might say in the absenc e of a full investigation.”). Given that the Robinsons would have offe red be nefic ial te sti mony on be ha lf of Poi nd e xter

and tha t th e y we re a va ila

ble to t e sti fy , S lame ka ’s fa ilure to investigate the Robinsons before trial or attempt to re open the proofs when they did appea

r at trial is n e ith e r “ str a te g ic ” nor re a so na ble . We fi nd

tha t Sla me ka ’s pe rf

or manc e wa s d e fi c ie nt i n th is
re g ard and that th e c on c lus ion by

the Mic hig an Co ur

t of Ap pe a ls t o th e c on tr ary

wa s an unr e a so na

ble application of Strickland

. To satisfy

th e sec ond prong of Strickland , Slameka’s de ficient pe rfor mance must have prejudiced Poindex ter. Juawanda Robinson’s testimony would have unde rmined the victim’s identification of Poindexter, since she hear d the victim tell the police that “Red” shot him. J uawa nda Robinson’s testimony

that she hea

rd two men a

rg uing be fore the g unfire w ould have stre ng thened the implication of Petty

as the shooter, since it is consistent with the alibi witnesses’ a ccounts that Petty left t he house ang rily at about that time. Robert Robinson would have testified that he saw the15

victim point i n the direc tion in which the shooter fled, which could have unde rmined the victim’s testimony that he did not identify

the shooter beca u s e he fea red the shooter wa s still prese nt. But for the a bsence of the Robinsons’ testimony that could h av e u ndermined or impeache d Ruff and further implicated Petty , there is a rea sonable probability that the result of the proc eedingwould have been dif fer ent. S lameka’ s failure to investigate t he R obinsons before trial or to ask for a continuanc e
o f c l o s i n g ar gu m en t s wh en t h ey ap p ea re d l at e t o t ri al t h er ef

o re p re j u d i ce d P o i n d ex t er . Bo t h p ro n gs of the Strickland test are satisfied, and Slameka’s failure to inve stigate the Robinsons i s ineffe ctive

a ssi sta nc e of c ouns e l and

wa rr ants habeas relief

. III
. F or the fo re g oin g re a so ns , w e a ff ir m th e jud g me nt o f t

he dis tr ic t c ourt
.