NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0756n.06 No. 10-5257 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

PATRI CK THURMOND, Petitioner-Appellant,

v. HOWARD CARL TON, Warde n, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED ST AT E S DI STRI CT C OURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE

BEF ORE: BA TCHEL DER, Chief J udg e, and GRI F F I N , Ci r c u it Ju d g e s ; a

n d COHN, District J udg e. * GRI FF I N, Circuit J udg e. Petitioner Patrick Thurmond appea ls the di strict court’s denial of h i s p et i t i o n for a writ of habea s corpus. We af

firm. I

. We bor row our sta tement of the underly ing fac ts f rom the decision of the Tenne ssee Court of Criminal Appea ls affirming Thurmond’s convic tions on direct appe al. On September 8, 1994, [t he victim] worke d as a housekee per for the Drury I nn. At about 9:00 a. m., while clea ning the bathroom of a fourth-f loor room, she hear d a noise from the sleeping are a. She found a man standing in the room’s sleeping are a. He wore a black shirt, long b l ac k s h o rt s, black gloves, and held a pistol. The man tried to speak to [her], but she does not understa nd any Eng lish.

The Honora

ble Aver n Cohn, Senior United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation.No. 10-5257

Thurmond v. Carlton

When [t he victim] tried to esca pe, [t he man] g rabbe d her by the shirt and put the g un to he r head. Then, he threw her on the bed and put a pillowcase ove r her

head. H e rape d her

. . . Trial testimony established that the attack lasted betwee n one and 1 1/2 hours. [The victim] later ide ntified [Thurmond] as her attacke r. The assault cea sed when fellow Drury I nn staff members, L eah Adams and L ourdes Rivera, bang ed on the door and called out to [t he victim]

. [Thurmond] motioned for [t he victim] to re- dress while he did the same. Whil e Adams and Rivera tried to open the hotel room door, [Thurmond] opened the door and pushed his w ay betwee n the women. Rivera chase d [Thurmond] down the steps and ar ound the building to a restaur ant parking lot behi n d t h e hotel. When she acc used him of raping [t he victim] , [Thurmond] replied, “she g ave it to me.” Rivera watche d [Thurmond] g et into a g ray Chevrolet Corsica and memorized the license plate num b er as [ Thurmond] drove awa y . Rivera rela ted the number “099 J KB ” to a hotel manag er who, in turn, rela ted it to police. When asked by Detec tive Danny Ba x ter for the number from memory , Rivera rela ted the number “099 J KF.” Ba x ter found that “099 J KF” was reg istered to the wrong t y

p e o f car , but confirme d that “099 J KB ” was the plate number of a Corsica re g istered in [Thurmond’s] name. Earlier that morning , L y

nn King , a housek ee p er at near by Day s I nn[,] saw a man, we ar i ng all black clothing, roaming the halls of that hotel. She and o t h er housekee pers had seen the same man, in the same clothing, linge ring around the hotel a couple of we eks ea

rlier. King identified [Thurmond] as the man she saw. State v. Thurmond , No. 01C01-9802-CR-00076, 1999 WL 78752 4 , at *1–2 (Tenn. Crim. App. Oct. 5, 1999). The State of Tenne ssee char g ed Thurmond with ag g rava ted burg lary , two counts of ag g rava ted ra pe, attempted a g g rava ted ra pe, and a g g rava

ted sexual battery

. The case was tried to a jury

. The s t at e s h o we d that the victim and Rivera both identified Thurmond as the attacke r during a photogr aphic line-up the day of the rape , and that King identified Thurmond as the man she saw wande ring the halls of a near by hotel (whe re she worke d) the morning of the ra pe and w eeks e arlier . These thr ee w omen also identified Thurmond at trial. Adams, who

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was unable to identify Thurmond from the line-up, despite seeing him fac e-to-f ace for a few seconds when he opened the hotel-r o om door, never theless identified him at trial (over a y ear later)

. The
state also showed that Rivera identified the license plate number o f t h e at t acke r’s car , which was reg istered to Thurmond. Finally , the state offe red that fibers found on the vict im’s clothing wer e consistent with those found on clothing seized from Thurmond’s home. Thurmond did not testify

. The jury found him g uilty on all five c ounts. The Tenne ssee Court of Criminal Appe als aff irmed, and the Te nnessee Supreme Court denie d leave to appea l. Thurmond soug ht relief in state post-conviction proce eding s, but was larg ely unsucce ssful. ( See id. ) He then filed for habea s relief in fede ral c ourt, raising claims rela ting to trial-court error and ineffe ctive assistance of counsel. See 28 U.S.C. § 2254. The distri ct co u rt denied relief , but issued a cer

tificate of appea lability with respe ct t o Thurmond’s claim of ineffe ctive assistance of counsel. Thur

mond timely

appea led. 1 I I

. We revie w the district court’s habea s decision de novo. Aye rs v. Hudson , 623 F.3d 301, 307 (6th Cir. 2010). Thurmond filed his petition in 2006, so the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 ( “AED PA”) a pplies. AEDPA per

mits habe as relief only

when a state cour

t’s

Whil e this appea l was pending , Thurmond asked us to expand the cer tificate of appea lability 1 and consider his claim that a sug g estive photogr aphic line-u p p ro d uced unreliable out-of-c ourt identifications and led to u nreliable in-court identifications, there by violating his rig ht to due proce ss. We declined his reque st, finding undeb at able the district court’s deter mination that the claim was proce durally defa ulted. We there fore do not addre ss this claim here

. S ee B u g h v. Mitchell , 329 F.3d 496, 502 n.1 ( 6th Cir. 2003). - 3 -No. 10-5257

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m erits adjudication resulted in a decision that is “contr ary to, or involved an unrea sonable application of, clea

rly established Fe dera l law,” or was “base d on an unrea sonable deter mination of the fac ts in light of the evidenc e prese nted i n t he State court proce eding .” 28 U.S.C. § 2254(d). “Clear ly estab l i s h ed Fe d er al law” ref ers to the Supreme Court’s holdings as of the time of the rele vant s tate-c ourt d ec i sion. Lundgren v. Mitchell , 440 F.3d 754, 763 (6th Cir. 2006). “I n order for 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[;]

. . . [i t] must have been ‘objec tively unrea s o nable.’ ” W iggins v. Smith , 539 U.S. 510, 520-21 (2003) (interna l citation omitted). The threshold for “unre asonable ness” is “substantially highe r” than it is for incorre ctness, Schriro v. Landrigan , 550 U.S. 465, 473 (2007), satisfied only when a state-c ourt decision “wa s so lacking in justification that there wa s an error well understood and compre hended in exis ting law bey ond any possibili ty for fairminded disag ree ment.” Harrington v. Richter , 131 S. Ct. 770, 786-87 (2011). I I I

. Thurmond claims he was denied the e ffe ctive assistanc e of tria l counsel whe n his lawy er: (1) f ailed to inve stiga te and later prese nt a n alibi defe nse; and (2) failed to objec t to the admission of hea rsay testimony

and phy sical evide nce. A. To succe ed on a c laim of ineff ective a ssistance of c ounsel, a de fenda nt must show that his lawy er’ s perf

ormanc e was defic ient and that the defic iency prejudice d his defe nse. Strickland v.

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W ashington , 466 U.S. 668, 687 (1984). Both components of the inquiry are mix ed questions of law and fac t, id. , and are the r e f o r e r e v ie w e d u

n der AEDPA’s “unre asonable application” prong when that statute applies. Railey v . W ebb , 540 F.3d 393, 397 ( 6th Cir. 2008). To establish the first component of an ineffe ctive-a ssistance claim, a defe ndant must show that his lawy er’ s perf

ormanc e “fe ll below an objective standard of rea sonablene ss” as measure d by “pre vailing profe ssional norms.” Strickland , 466 U.S. at 687–88. J udicial revie w of a lawy er’ s perf ormanc e is “hig hly defe rential” and subject to a rebuttabl e p resumption that the conduct fell within “the wide rang e of rea sonable profe ssional assistance .” Id. at 689. A defe ndant’s burden is
to “over come the presumption that, un d er t h e circ umstances, the challeng ed action might be considere d sound trial strateg y .” Id. (interna l quotation marks omitted). Although “strate g ic choice s made afte r thoroug h investiga tion of law and fac ts rele vant to plaus i b l e o p tions are virtually unchalleng eable [,] ” thos e “ma de af ter less than c omplete investig ation are rea sonable pre cisely to the ex tent that rea sonable prof essional j udg ments support the l imitations on investiga tion.” Id. at 690-91. Th e p er fo rm ance component itself is defe rential; it become s doubly so when AEDPA applies. Knowles v. Mirzayance , 556 U.S. 111, 123 (2009) (citing Y arborough v. Gentry , 540 U.S. 1, 5-6 (2003) (per curia m)); see also Harrington , 131 S. Ct. at 788 (“ When § 2254(d) applies, the question is not whether counsel’s actions wer e rea son able. The question is whether there is any

rea sonable a

rg ument that counsel satisfied Strickland ’s def ere ntial standard.” ). To establish p re

j u d i ce from his lawy er’ s defic iency , a defenda nt must show a “rea sonable probability that, but for counsel’s unprofe ssional er r o r s, the result of the proce eding would have been

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differ ent.” Strickland , 466 U.S

. at 694. A “re asonable probability ” is a probability “suff icient to undermine confide nce in the outcome.” Id. “The likelihood of a differ ent result must be substantial,
not just conce ivable.” Harrington , 131 S. Ct. at 792. A verdict o r conclusion st rong ly supported by the re cord is less likely to ha ve been aff

ecte d by err ors than one with w eak rec ord support. See Strickland , 466 U.S. at 696. B. Thurmond first arg ues that his lawy er was ineffe ctive by failing to fully investiga te and later prese nt an alibi defe nse. He claims h e t o l d h i s l awy er well befor e trial that Delore s Gra y son, his friend and employ er, would have testified that Thurmond was working at Gra y son’s store when the victim was attacke d

. Du ri n g post-conviction proce eding s, the state court hear d testimony from various individuals reg arding this claim. Bec ause that testimony g ives context to t he state c ourt’s decision on Thurmond’s c laim, we summarize it below in some detail. 1. Gra y son testified t hat s he hired Thurmond t o wor k as a secur ity g uard at a video store she manag ed. The morning of the ra pe wa s also Thurmond’s birthday , and Gr ay son called Thurmond
at his home befor e 9:00 a.m. to ask if he would open the store so she could run an err and. Thurmond oblige d, and Gra

y son went to the mall to buy him a bi rt h d ay p re s en t

. On her return to the video store, she stopped at a car wash around 9:30 a.m. Her car battery died shortly afte r the wash, so she called the video store and asked Thurmond to pick her up, which he promptly did. Thurmond stay ed at the store until 2:00 or 3:00 that afte rnoon.

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Gra y son further testified that she told Thurmond’s lawy er, Terr ance McNa bb, that she could testify , and McNa

bb responde d that he would “proba bly ” u s e h er t es timony at trial. When she showed up the morning of trial, howeve r, McNa bb dismiss ed her without an explanation. Gra y son acknow ledg ed that she did not immediately come forwa rd, despite b el i eving the police had the wrong suspect. She appa rently believed T hurmond’s lawy er w ould contact he r if she c ould help. McNa bb testified next. He rec alled that, at Thurmond’s urg ing, he asser ted his i n t ent to prese nt an alibi defe nse in response to the prosec utor’s discovery reque st. Howeve r, when McNa bb spoke with Gra

y son prior to trial, the information she provided reg arding Thurmond’s wher eabouts

on September 8 was inconsistent with what Thurmond told him. McNa b b co u l d not rec all specific ally what the inconsistencies wer e, testify ing that Gra y son “wa s i n co n sistent about the timing,” that the times “didn’t jive,” and that Gray son “couldn’ t rea lly tell me with any deg ree of

acc urac y about times.” He also said: [B]asically

when I talked with her

and re membering

what Mr. Thur

mond had said, I just didn’t believe her, I didn’t think she was cre dible with reg ard to that. I don’t think she was making up a story , she just didn’t seem to be cre dible. And I told Mr. Thurmond – we talked about calling her. And I rec ommended that I felt it would do more ha rm than g ood g iven what she said. McNa bb mentioned further that, from an ethical standpoint, he di d n o t fe el he could call her to testify . He stopped shor

t, however , of say

ing he thought Gr ay son was ly ing. As for Thurmond’s testimony , McNa bb g ave two rea sons for advising him not to testify : (1) inconsistencies in his story , and (2) his extensive criminal rec ord. Although he offe red no specific examples of inconsistencies, he did state that Thurmond’s story was “totally inconsistent with what

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he said to start off

with . . . [ a]nd . . . I

didn’t fee l like it was in his best interest to g et on the stand and g et caug ht in a contra dictory trial with a skilled attorney prosec uting the case that was g oing to cross[-]ex amine him.” He elabor ated: You know, on an alibi if a person say s he’s at point A at a cer tain

. . . time a

nd he’s g ot a witness that say s he’s there , that’s one thing. And if the person say s he’s there and the other witness say s, I can’ t rec all, it may have been over here at another place and time, that’s inconsistent. Ba sically , that’s what I reme mber. You know, I can’ t sit here and tell y ou the exact inconsistencies. But needle ss to say , [t here ] wer e a lot or I would’ve not made the rec ommendation to Mr. T h u rm ond that he shouldn’t testify

. Wit h respe ct to Thurmond’s cr iminal r ecor d, McNa bb could not r eca ll de tails, but thought it included one or two additional rape convictions and possibly some others. He acknow ledg ed that it would have been prudent to seek a pretria l ruling on the admissibili ty of the prior rape conviction befor e advising ag ainst Thurmond’s testimony , but stated that his rec ommendation would have been the same reg ardle ss of Thurmond’s criminal rec ord. I n McNa bb’s view, he had offe red the jury all of the inconsistencies i n the ey ewitness identifications and “fe lt like there may be a possible

rea sonable doubt issue that could be raised by that,” and that, if Thurmond testified “and these things

wer e broug ht up[,] it could have turned it a round and . . . cause d more problems[.] ” McNa bb also believed “ [t ]here wa s some rea sonable doubt on the sper m putting him there.” 2 Cross-examination further illumi nated McNa bb’s rea sons for advisi n g ag ainst an alibi defe nse. McNa

bb ag ree d that Gra

y son would have place d Thurmond in the same part of town as the

Sperm found on t h e h o t el bedspre ad did not match Thurmond’s DNA profile, and sperm 2 found on a va g inal swab of the victim was insufficient f or DNA testing. - 8 -No. 10-5257

Thurmond v. Carlton

rape , making it less l ikely that the defe nse would succe ed. “[I ]t wasn’t like [Thurmond] was in Alabama and Ms. Gra

y son was g oing to verify [t hat];

. . . [t he video store] was fairly cl o se in proxi mity [t o] wher e [t he rape ] happene d.” Timing, too, was a problem, as “it would have been possible for him to have done this and then g et back [t o work].” Fur thermore , Gra

y son’s testimony would have been that Thurmond was working at the video store at the time, which was inconsistent

w it h w h a t T h u r mo n d ’ s la n d lord and employ er had told police when they sear ched T h u r mo n d ’ s r o o m: Thurmond worke d at Perry ’s Marke t for the landlor d, not at the video store f or Gra y son. Of final importance here , McNa bb acknowl ed ged t h at he filed a motion for new trial

asser ting his own ineffe ctiveness f or not c alling Gra

y son to te stify

. He explained tha t “ [i t w as] a n eff ort on my part to try to help Mr. Thurmond. You know, obviously I felt bad about his conviction. His fathe r and I g ot to be fairly g ood friends and I felt sorry for the family [.] ” He further stated that the motion was “proba

bly inarticulate ly draw n up,” and tha t he “should have probably said, failed
to call defe ndant’s alibi witness who may have establish[ed] ” that he was working at the time of the attack, not that she would have done so. (Empha sis added.) Thurmond testified last. He rec alled telling Mc N a b b “ over and over” that he wanted Gra y son to testify . Thurmond lear ned of Mc Nabb’ s rese rvations about calling Gra y son for the f

irst time at the evidentiar

y hear ing. He also rec alled that McNa bb advised him not to testify only beca use of his prior rape conviction. During cross-e x amination, Thurmond acknow ledg ed that he told police upon his arr est that he worke d as a cashie r at Perry ’s Marke t. He explained that his job at the video store

was new, and he did not want his new employ er to know he had been arr ested. He further

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acknow ledg ed that he l acked documentar y evidenc e showing that he worke d at the video store, explaining that he wa s paid in cash a nd rec ords wer e not kept. After hear ing the testimony , the state trial court deter mined that McNa

bb’s perf ormanc e did
not fall below profe ssional norms. I t fully cre dited his testimony that he saw inconsistencies in the stories Thurmond and Gra y son told him reg arding Thurmond’s wher eabouts, particula rly as to the “timing of events that took place .” Thurmond v. State , No. M2005-00214-CCA-R3-PC, 2006 WL 680924, at *9 (Tenn. Crim. App. Mar. 15, 2006) (quoting the trial court). I t ag ree d with McNa bb’s belief that “admitt i n g t es t imony by [Thurmond] and Ms. Gra y son would have cre ated serious

cre dibilit y

issues.” Id. The Te nnessee Court of Criminal Appeals also a g ree d, noting spe cifica lly that Gra y son’s statement about Thur mond working at the video store conflicte d with Thurmond’s

own statement to p o l i ce t h at he worke d at Perry ’s Marke t at the time, and that McNa bb did not believe G ray son was cr edible. 2. Thurmond’s succe ss on his ineffe ctive-a ssistance claim depends entirely upon whether McNa bb believed there wer e inconsistencies in the testimonies of Thurmond and Gra y son, and that Gra y son was not cre dible. As we explain more fully below, if he had that belief, his decision not to call either witness to testify and to instead structure a defe nse around the inconsistent statements of the identify ing ey ewitnesses and absenc e of a DNA match was a sound trial strateg y . And, g iven that belief, it was also rea sonable for McNa bb to decide not to further investiga te an al i b i defe nse. Howeve r, if McN abb did not find the stories proble matic, and he had no othe r strate g ic re ason for

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not calling them at trial, he was likely ineffe ctive, and a conclusion to the contra ry would require an

unrea sonable application of Strickland

. See Bigelow v. W illiams , 367 F.3d 562, 570 (6th Cir. 2004) (“[T]he failure to call a known alibi witness g ener ally would cons t i t u t e ineffe ctive assistance of counsel.” ); Matthews v. Abramajtys , 319 F.3d 780, 789–90 (6th Cir. 2003). Acc ording ly , we f irst consider the state cour

t’s deter mination reg arding McNa bb’s belief

. We note first that the deter mination is one of historical fa ct t h at we deem true unless Thurmond shows otherwise with “cle ar and convincing evidenc e.” 28 U.S. C

. § 2 2 5 4 (e)(1); see Ramonez v. Berghuis , 490 F.3d 482, 490 (6th Cir. 2007) (“[I ]n the context of a Strickland evidentiar y hear ing, it is for the judge to evalua te the cre dibilit y of the criminal defe ndant and the former defe nse counsel in deciding what advice counsel had in fac t g iven to the defe ndant during his trial, and such finding s are entitled to the Section 2254(e) (1) presumption.”); Bigelow , 367 F.3d at 571 (explaining that a state-c ourt finding that counsel was unawa re of the exis tence of potential alibi witnesses befor e trial is presumed c orre ct under § 2254(e) (1))

. The recor d, to be sure, could have supported a finding tha t McNabb’ s hesitation in calling Gra y son and Thurmond was not based on inconsistencies in their statements, but rathe r neg lige nce. McNa bb was unable to articula te on his own any specific inconsistencies he perc eived in Gra y son’s and Thurmond’s statements, raising the possibili ty that he saw none. Such a finding would also be supported by the fac t that Thurmond did not rec all McNa bb ever telling him about inconsistencies. McNa bb’s inab i l i t y to be prec ise is also rea sonably explained, howeve r, by the fac t that he was testify ing, w ithout notes, a bout c onversa tions that took pla ce over te n y ear s ear lier. And McN abb

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testified that he and T h u rm o n d did discuss McNa bb’s rec ommendation to not prese nt Gra y son’s testimony

. Also, that McNa bb arg ued in a new- trial motion that he was inef fec tive for not ca lling Gra y son could cut strong ly ag ainst his testimony that he had ethical concer ns in calling Gra

y son. The state c ourt saw thing s differ ently , howeve r, implicitly finding that McNa

bb either ig nored his i n i t i al conce rns when he filed the motion beca use, as he said, he felt bad about losing, or t h at h i s initial concer

ns did not loom as larg e in hindsight a fter the jury ’s ver dict. Fur ther support for the state court’s finding exis ts as well. At the time of the trial, McNa bb had been prac ticing law for twenty -five y ear s, and much of his prac tice invo l v ed cr iminal law. Although seasone d attorney s are not immune from making mistakes, McNa b b ’s ex perie nce in criminal matters never

theless provides some support for the s t at e court’s finding that McNa bb believed tha t Gray son’s and Thur mond’s testimony

would hurt the def

ense. Perhaps most importantly , and despite a lack of specific ity in McNa b b ’ s te s ti mo n

y , th e r e cord supports his asser

tion that Thurmond’s and Gra y son’s statements wer e inconsistent with eac h other and internally

. Thurmond told police upon his arr est that he worke d at Perry ’s Marke t. Thurmond’s landlord and employ er told police the same thing. I n response to a leading question, McNa bb said he was awa

re of these statements and considere d that they conflicte d wi t h wh at Gr ay son and Thurmond had told him about Thurmond working at the video store . Finally , McNa bb stated that he found Gra

y son not cre dible. Although McNa bb disclaimed any belief that Gra y son had outrig ht lied to him, the state court rea d betwee n the lines and conclude d that McNab b b el i eved she was

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Thurmond v. Carlton ly ing, g iven his “ethica l conce rns” in calling her. Thurmond has fa i l ed t o re b u t the state court’s finding that McNa

bb had ser ious conce rns with an alibi def ense. I n light of McNa

bb’s rese rvations, we cannot conclude that the state court was unrea sonable in r uling that McNa

bb’s perf ormanc e fe ll “within the rang e of c ompetence demande d of attorney s in criminal case s.” Strickland , 466 U.S. at 68 7 (c i tation and internal quotation marks omitted). Given that Gra

y son’s testimony place d Thurmond i n t h e s am e part of town as the rape , an alibi d ef en se was wea

k to beg in with. McNa

bb rea sonably conclude d that any inconsistencies— i n particula r, those conce rning Thurmond’s then-e mploy ment, which was sure to come up—would destroy th e al rea dy wea

k defe nse and, quite possibly , the rea sonable-doubt defe nse McNa bb was building, leaving Thurmond with no defe nse. See Rompilla v. Beard , 545 U.S. 374, 381 (2005) (“I n judging the defe nse’s investiga tion, a s in apply ing Strickland g ener ally , hindsight is discounted by peg g ing adequa cy to counsel’s perspe ctive at the time investiga tive decisions are made, and by g iving a heavy measure of defe renc e to counsel’s judgme nts.” (interna l citations a n d q u o ta ti o n marks omitted)). I n McNa

bb’s view, “ many

things . . . just didn’t add up to Mr. Thurmond’ s alibi. And it would’v e b een devasta ting, in my opinion, with this story he was try ing to [propose].” Having made this judgme nt, McNa bb rea sonably deter

mined that further in v estig ation of an alibi defe nse would not be ar fruit. Cf. Burger v. Kemp , 483 U.S. 776, 794–95 (1987) (counse l’s limit ed pretria l investiga tion into his client’s past was r easona ble because all the wit nesses already broug ht to his attention provided pre dominantly harmful infor

mation).

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This case is unlike those Thurmond cites for the proposition that failing to prese nt available alibi witnesses g ener ally constitutes defic ient perf ormanc e under Strickland

. See, e.g. , Ave ry v. Prelesnik , 548 F.3d 434 (6th Cir. 2008); Stewart v. W olfenbarger , 468 F.3d 338 (6th Cir. 2006); Clinkscale v. Carter , 375 F.3d 430 (6th Cir. 2004); Luna v. Cambra , 306 F.3d 954 (9th Cir. 2002); Brown v. Myers , 137 F.3d 1154 (9th Cir. 1998); W ilson v. C owa n , 5 7 8 F. 2 d 166 (6th Cir. 1978). First, we note that the ca ses of Clinkscale , Brown , and W ilson wer e not ana ly

zed under AED PA’s heig htened standards, and there fore provide littl e g uidance

. Moreove r, all of the case s relied upon by Thurmond involve either a failure by counsel to contac t and persona lly interview potential alibi witnesses his client identified, or an inability of counsel to explain what trial strateg y motivated his decision not to call the witness at t rial. Her e, however, McNabb did not ignor e Gray son. Rather, he persona lly interviewe d her and, based upon his rea soned profe ssional judgme nt, deter mined her testimony would likely do more harm than g ood. The state court reas onably applied Strickland reg arding counsel’s tria l strateg y . C. Finally , Thurmond claims his attorney was ineffe ctive by not objec t i n g to a portion of Detec tive Ba x ter’s te stimony and not see king to suppre ss the victim’s clothing.

1. Detec tive Ba x ter testified at trial that he cre ated a photogr aphic line-up with pictures of six individuals, including Thurmond. Eac h individual was shown from the front and the side, for a total of twelve photogr aphs. Be fore showing the witnesses the photos, B axter explained g ener ally how

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a line-up worke d and asked Rivera to translate to the victim, who spoke no Eng lish. Rivera did so, and then left the room. Upon viewing the line-up, the victim plac ed her fing er on the photogr aphs of Thurmond, but, acc ording to Ba x ter, “had a confuse d look on her fac e.” Ba x ter then asked Rivera to come bac k into the room and translate. He told the jury of Rivera’ s translation: the victim was confuse d not beca

use she was unsure of her identification, but beca use she saw twelve pictures instead of six , as she appar ently had expected. Once the confusion was clea red up, the victim ag ain identified Thurmond a s her a ttacker

. Detec tive Ba x ter’s testimony included two levels of hear say and fit no ex ce p t i o n s . I t was there fore inadmissible unde r Tenne ssee’ s evidenc e rules, and McNa bb should ha

ve objected to its admission. See Tenn. R. Evid. 805. Asserting preju d i ce from this attorney err or, Thurmond contends that “[w]i thout Ba x ter’s testimony , the jury would have only lear ned that [t he victim] was ‘conf used’ when she pointe d o u t Thurmond’s picture and would not have hear d Ba x ter’s explanation for her confusion,” which might have cause d it to be “seve rely troubl ed ” by the victim’s initial confusion. Thi s a

r g u me n t, h oweve r, ignor es the victim’s own testimony , which trac ked Ba x ter’s and

was admissible. Be cause Ba x ter’s testimony was cumulative to the victim’s, the lack of an objection (likely t o b e s u stained) did not prejudice the defe nse. See W ong v. Belmontes , 130 S. Ct. 383, 3

The state court did not consider the cumulative nature of Ba x ter’s testimony in disc erning 3 prejudice

. Neve rtheless, when AEDPA applies, fede ral courts consider th e r e s u lt o r d e c is io n r eac hed by the state court, not the rea soning employ ed to g et there

. See Holder v. Palmer , 588 F.3d 328, 341 (6th Cir. 2009); Neal v. Puck ett , 286 F.3d 230, 246 ( 5th Cir. 2002) (en ba nc) ( per c uriam) ( “[O]ur focus on the ‘ unrea sonable a pplication’ test under Section 2254(d) should be on the ultimate le g al conclusion that the state court rea ched and not on whether the state court considere d and discussed ever y ang le of the e vidence .”). - 15 -No. 10-5257

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387–88 (2009) (per curia m); Jame s v. United States , 217 F. App’x 431, 437 (6th Cir. 2007); cf. Anthony v. DeW

itt , 295 F.3d 554, 564 (6th Cir. 2002) (finding that beca use hear say testimony was

c u mu la ti ve of other evidenc e establishing the same fac t, admitting it was harmless err or under Brech t v. Abrahamson , 507 U.S. 619 (1993)). Moreove r, the victim and a co-w orker identified Thurmond as the a ttacker both in and out of court, another co-w orker identified Thurmond in court, an employ ee of a near by hotel identified Thurmond as the individual she saw suspiciously roaming the halls of that hotel the morning of the rape and we eks ea

rlier, a nd the license -plate numbe r R ivera identified t rac ed back t o Thurmond’s

car . The state court rea sonably deter mined that this evidenc e of g uilt belied any claim that McNa bb’s fa ilure to object to the he arsa y prejudice d Thurmond’s def ense. 2. L inda L ittlejohn testi fied that she matched fibers from the victim’s c lothing to f ibers taken from a shirt in Thurmond’s closet. Thurmond contends that counsel was ineffe ctive by not seeking to suppress the victim’s clothing due to a br eak in its c hain of custody

. See, e.g. , State v. Cannon , 254 S.W .3d 287, 297–98 (Tenn. 2008)

. After hospital nurses trea ted the vict i m , a n u rs e reta ined some of the victim’s clothing, i n cl uding her underw ear , for further testing. A preliminary fore nsic examination at the hosp i t al

reve aled the prese nce of bodily fluids (p ossibly semen) on the crotc h are a of the underw ear . The

nurse place d the underw ear and other clothing in a paper bag and seale d it. She then place d the bag in a locked cabine t. But when detec tives came to retrie ve the clothing for further testi n g, t h e

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victim’s underw ear was not in the bag , and no one knows what happene d to it. Given this brea k in the cha in of custody , counsel should ha ve moved to suppr ess all the clothing in the bag

. Once the clothing was suppressed, the jury woul d not have hear d L ittlejohn’s testimony reg arding the matching fibers. Howeve r, the state court deter mined that, in light of the “substantial” evidenc e of Thurmond’s g uilt—the multipl e ey ewitness identifications and the license- plate match—Thurmond failed to show a rea sonable probability of a differ ent outcome had the fiber evidenc e been excluded. We ag ree and hold that the state c ourt rea sonably applied Strickland

. I V. For these re asons, we a ffirm the judg ment of the district cour t.

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