NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0761n.06 No. 10-1198 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT REGINA LD WALKER, P etitioner -Appellant,

v. BONITA HO F F NER, Warden, Respondent-Appellee. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

BEFORE: KEITH, CLAY, and COOK, Circuit Judges. CLAY, Circuit Judge. On Marc h 1, 2001, Petitione r R eg inald Walker was convicted of first deg ree murder in violation of Mich. Comp. L aws § 750.316, and possession of a firea rm in the commission of a felony in violation of Mich. Comp. L aws § 750.227b, for the fata l shooting of L arr y Troup. Petitioner filed a petition for a writ o f h ab ea s co rp us pursuant to 28 U.S.C. § 2254 on Dec ember 21, 2006, claiming that his counsel had been ineffe ctive beca use he failed to investiga te and prese nt an insanity defe nse despite Petitioner’s known, extensive, and well-doc umented history of mental illness. On J anuar y 14, 2010, the United States District Court for the Easter n District of Michig an denied his petition. On Februa ry 18, 2010, that court g rante d Petitioner a C ertificate of Appea lability pursuant to 28 U.S

. C

. § 2 2 5 3 (c)(1) on the question of whether the state court’s decision that Petitioner had not been prejudice d by his attorney ’s failure to raise an insanity defe nseNo. 10-1198

was an un re as o n able application of fede ral law. On September 2, 2011, this Court reve rsed the decision of the di strict court, and g rante d the writ. W alker v. McQ uiggan , 656 F.3d 3 1 1 (6 t h Cir. 2011). The United States Supreme Court g rante d a writ of cer tiorari, vaca

ted this Court’s decision, and rema nded the case back to this Court. Howes v. W alker , 132 S. Ct. 2741 (2012) (Mem.). I n its

rema nd order , the Supreme Court direc ted us to rec onsider t h e ca s e i n l ight of their decision in Parker v . Matthews , 567 U.S. —, 132 S. C t. 2148 (2012). Upon rec onsideration, we REVERSE the decision o f the district court, and GR ANT Petitioner’s applica tion for a wr it of habea s corpus.

BACK GR OUND A. F acts The fac ts of this case wer e laid out in detail in our prior decision. W alker v. McQ uiggan , 656 F.3d 311, 312–13 (6th Cir. 2011 ) ( W a l ker I ). The underly ing crime was the ki lling of L arr y J ohn Troup by Petitioner Reg inald Walker on the night of April 11, 2000. Id. at 312. Quoting extensively from the de cisions of the Michig an Court of Appe als, we f ound that: The prosec ution prese nted testimony that at about midnight, Walter Gaiter and Troup enter ed the store to purcha se some beer

. After pay ing for the beer at t he chec kout counter , Gaiter leane d back into defe ndant, who was b eh i nd them. After Gaiter apolog ized for bumping into defe ndant, defe ndant told him that he did not like being touched, which defe ndant repe ated afte r he paid for h is p u r c h a s e s . Pausing, defe ndant then pulled an automatic handgun from under this [si c] jacke t and fired three or four shots, killing Troup instantly

. Neither Gaiter nor Troup was arme d. Def endant then picked up the clip that had fallen to the floor, put it in his pocket, and walked out the store.

2No. 10-1198

Id. (quoting People v. W

alker , No. 233494, 2003 WL 133057, at *1 (Mich. Ct. App. Jan. 3, 2003) ( per curiam )). Petitioner had a long

history of mental illness. Despite be ing only 46 y ear s old at the time of trial, he rec eived Social Security Disability benef its as a result of mental health issues. Id. at 315. His medical history indicated that Petitioner had been hospitaliz ed many times, starting in 1983, for various “schizophrenic” illnesses. Whil e he had been presc ribed anti-psy chotic medications since 1983, he had not alway s taken them. Trea tment at s ev er al differ ent hospitals had resulted in diag noses of “par anoid schizophrenia, g ener alized schizophrenia, schizoaffe ctive disorder, depre ssion, bi-polar disorder, and alcohol depende nce.” Id. At multipl e times, Petitioner repor ted to doctors that he had sui cidal or homicidal feeling s, and that he ha d been he aring voices. Within the six months prec eding the shooting, Petitioner’s mother, who was an appointed g uardia n to him, had him involuntarily

committed to a trea tment fac ility beca use of a cute psy chotic sy

mptoms. Id. at 315. All of the evidenc e at trial identified Petitioner as the culprit. Both the store cler k and Gaiter testified that Petitioner was the shooter, and that there had been a bri ef , non-violent encounte r betwee n Gaiter and Petitioner, when Gaiter had acc idently bumped into Petitioner, and that afte r a brief exchang e of words, Petitioner shot Troup. Both also testified that Petitioner then picked up the ammunition clip that had fallen out of the g un, and walked out of the store. The police arr ested Petitioner shortly afte rwa rds in a near

by semi-aba

ndoned house. Petitioner’s hand was bleeding , beca use he had punched a hole in the dry wall in the house, and hidden the g un inside. No evidenc e sug g ested that Petitioner had be en attac ked by Troup or G aiter. Id. at 313.

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Petitioner admitted to the killing, but “pre sented a mix ed def

ense of acc ident, self-de fense and intox ication.” Id. at 313. Despite having the option to reque st that an indepe n d en t cl i nical psy chiatrist of his choice evalua te Petitioner, Def ense c ounsel chose to r ely on the examination of Dr. Dexter L ee Fields, the Way ne County Circuit Court Psy chiatrist, who had found that Petitioner

was criminally

responsible a t the time of the shooting. Id. at 314. Fields had examined Petitioner befor e, and on a

t least one oc casion ha d conclude d that Petitioner was mentally ill. Id. at 314 n.3 Def ense counsel did not use an insanity defe nse; instead, h e chose to prese nt a “mix ed 1

acc ident/self-de fense /intox ication theory .” Id. at 314. Walker was convicted of first-deg ree murder, Mich. Comp. L aws § 750.316, and possession of a firea rm in the commission of a felony , Mich. Comp. L aws § 750.227b, a nd was sentenc ed to life in pr ison w ithout the possibili ty of par ole, and an additional two y ear s’ imprisonment on the firea rm cha rg e. W alker I , 656 F.3d a t 313. On direc t revie w of his conviction, Walker alleg ed that his attorney had provided ineffe ctive assistance of counsel beca use he ha d failed to investig ate or raise an i nsanity defe nse. Id. at 315. The Michig an Court of Appe al s found that counsel’s failure to investiga te the possibili ty of an insanity defe nse con s t ituted defic ient perf ormanc e, and rema

nded the case to the trial court for a Ginther hear ing as to whether Petitioner had been prejudice d by counsel’s defic iencies. People v. 2 W alker , No. 233494, 2003 WL 133057, at *3 (Mich. Ct. App. J an. 3, 2003) ( per curiam ). After the Ginther hear ing, the trial court found no prejudice , and the Michig an Court of Appea ls aff irmed that

Petitioner’s attorney at that point was Wil liam Wint ers. He declined to pursue an insanity 1 defe nse, althoug h his predec essor a s defe nse counse l had filed a notice of intent to do so. Id. Named for P eo

p l e v. Ginther , 390 Mich. 436 (1973), a Ginther hear ing is a ty pe of 2 evidentiar y hear ing unde r Michig an law f or cla ims of ineffe ctive assistanc e of c ounsel. 4No. 10-1198

decision. People v . W

alker , No. 249406, 2005 WL 657727, at *2 (Mich. Ct. App. Mar . 22, 2005) ( per curiam ). The Michig an Supreme Court declined to hear the case , issuing the following order : “Disposition: On order of the Court, the application for leave to appea l the Marc h 22, 2005 judgme nt of the Court of Appea ls is considere d, and it is DENI ED, bec au s e we are not persua ded that the question prese n t ed should be revie wed by this Court.” 474 Mich. 873 (2005) (table)

. Under the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 (“ AE DP A” ) t his Court revie ws the last

rea soned state court decision. See Cullen v. Pinholster , 563 U.S. —, 131 S. Ct. 1388, 1402 (2011) (“Sec tion 2254(d) applies even wher e there has been a summary denial.”)

. I n this case , the Michig an C o u rt of Appeals’ decision in 2005, People v. W alker , No. 249406, 2005 WL 657727, (Mich. C t

. App. Mar. 22, 2005) is the last rea soned state c ourt dec ision. B. P roce dural Hi story in the F ederal Court s I n Dec ember 2006, Petitioner asked the United States District Court for the Easter n District of Mi chig an to g rant a

writ of habe as cor

pus, based on the s ame claim of i neff ective assistance of counsel that he alleg ed in the state courts. I n J anuar y 2010, the district court acc epted the repor t and

rec ommendation of the mag istrate judge , which fo u n d t h at the Michig an court had corr ectly 1 identified the constitutional rule g overning claims for ineffe ctive assistance of counsel, and had not

unrea sonably applied the law to the fac ts of the case and denied the petition, but g rante d a cer tificate of appea lability on the question of whether the state court’s decision that Petition er h ad not been prejudice d by his attorney ’s failure to r aise an insanity defe nse was an unrea sonable application of

The mag istrate rec ommended that the district court d en y t he petition, beca use the state 1 court’s finding that there was no p re j u d i ce to Petitioner was not unrea sonable. (R. 14, Report & Recommenda tion, Nov. 13, 2009, at 8.) 5No. 10-1198

fede ral law. Walker appea led to this Court, and we g rante d the writ. See W alker I , 656 F.3d at 322. The Supreme Court g rante d cer tiorari, vacated our decision, and re ma n d e d “for further consideration in lig ht of Parker v. Matthews , 567 U.S. —, 132 S.Ct

. 2148 (2012).” Howes v. W alker , 132 S. Ct. 2741 (2012). DISCUSSIO N A. Stand ard of Review Where a district court has denied a habea s petition, and issued a cer tificate of appea lability , “we revie w the district court’s leg al conclusions de novo and its fa ct u al fi ndings for clea r err or.” Hanna v. Ishee , 694 F.3d 596, 605 (6th Cir. 2012) (citing Smith v. Mitchell , 567 F.3d 246, 255 (6th Cir. 2009)). The district court’s fi n d i n gs o f fa ct are clea rly err oneous when “we are left with the definite and firm conviction that a mistake has been committed.” United States v. Canipe , 569 F.3d 597, 600 (6th Cir. 2009) (citing United States v. Ellis , 497 F.3d 606, 611 ( 6th Cir. 2007)). Under the AEDPA, a fede ral court may not g rant a writ of habea s corpus with respe ct to any claim adjudica ted on the mer its in st ate c ourt unless the state a djudication: (1) resulted in a decision th at wa s co n trary to, or involved an unrea sonable application of, clea

rly established fede ral law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonable deter mi n at i o n o f the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

. 28 U.S.C. § 2254(d). A fede ral court may not issue t h e wr i t “simply beca use it conclude s in its independe nt judg ment that the rele vant state-c ourt decision applied clea rly established fede ral law

err oneously or incorre ctly

. Rather, that application must also be unrea sonable.” W illiams v. Taylor , 529 U.S. 362, 411 (2000). “[C] lear ly established fede ral law, as deter mined by the Supreme Court

6No. 10-1198

of the United States” ref

ers to the holdings, rathe r than dicta, of the decisions of the Supreme Court. Howes v. Fie lds , — U.S. —, 132 S. C t 1181, 1187 (2012) (quoting W illiams , 529 U.S. at 362). A decision that is “contr ary to” clea rly established fede ral law wher e “the state court arr ives
at a conclusion opposi te t o that rea ched by this Court on a question of law . . . [or] confronts fac ts that are materia lly indisti ng uishable from a rele vant Supreme Court prec edent and arr ives at a [t he opposite] result.” W

illiams , 529 U.S. at 405. Fur thermore , an unrea sonable application must be distinguished from an incorre ct application. Harrington v. Richter , 562 U.S. —, 131 S. Ct. 770, 785 (2011) (quoting W

illiams , 529 U.S. at 410). A state court decision which is mere ly incorre ct, rathe r than unrea sonable, is still entitled to de fer ence by a fede ral court in a habea s proce eding

. Id. As a result, the more g ener al the rule, th e g rea ter the leewa y acc orded to a state court’s decision under fede ral ha beas r eview. Id. at 786. C. The Decision of

the Mic higan Court of Appeals I t is clea rly established law that the question of ineffe ctive assistance of counsel is analy zed pursuant to the two-par

t test established in Strickland v. W ashington , 46 6 U. S. 668 (1984). Petitioner must show that counsel’s perf ormanc e was defic ient, and that he was prejudice d beca use of this ineffe ctive assistance of counsel. Id. at 687–92; Roe v. Flores-Ortega , 528 U.S. 470, 476–77 (2000) (“A defe ndant claiming ineffe ctive assista n ce of counsel must show (1) that counsel' s repr esenta tion ‘fe ll below an objective standard of rea sonablene ss,’ and (2) that counsel' s defic ient perf ormanc e prejudice d th e d e f e ndant.”) (citing Strickland ) (interna l citations omitted); Kimmelman v. Morrison , 477 U.S. 365, 383 (1986).

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The Michig an state court’s decision in 2005 both violated and unrea sonably applied clea rly established fede ral law, an d according ly , the writ should issue. I n W alker I , we held that the 2 Michig an Court of Appea ls both unrea sonably applied clea rly established fede ra l l aw and

unrea sonably deter

mined fac ts in light of the evidenc e. We found t h at t h e M ichig an court improperly applied the prejudice prong of Strickland , 466 U.S. at 687. I n doing so, howeve r, we incorre ctl y applied our own standard, which states that a defe ndant suffe rs prejudice when he is deprive d of a “substantial defe nse” by the defic ient perf ormanc e of his counsel. W alker I , 656 F.3d
at 321. The Supreme Court held in Parker that a circ uit court can n ot use its own prec edents, but
must only u s e t h ose of the Supreme Court, “in assessing the rea sonablene ss of the [st ate court’s] decision.” Parker , 132 S. Ct. at 2155. Upon rec onsideration, under the standard as g iven by the Supreme Court, we never thel es s find that the Michig an court’s decision does not survive habea s revie w. Strickland has long held that counsel’s p er fo rm an ce is defic ient wher e it falls below an objectively

unrea sonable standa

rd. Strickland , 466 U.S. at 686–87; Richter , 131 S. Ct . at 787. “A
court considering a claim of ineffe ctive assistance must apply a ‘strong presumption’ that counsel’s repr esenta tion wa s within the ‘wide rang e’ of rea sonable profe ssional a ssistance.” Richter , 131 S. Ct. at 787 (quoti ng Strickland , 466 U.S. at 689). Petitioner bear s the burden of overc oming the “pre sumption that the c h al l en ged conduct might be considere d sound trial strateg y .” Hanna , 694 F.3d at 612. That is to say , Petitioner must show that counsel made err ors “so serious that counsel

We first find that the M ichig an court failed to apply the cor rec t rule, but we a lso find that 2 even wer e we to construe its decision as stating the ru l e correctly , the result would be an unrea sonable a

pplication of fe dera l law. 8No. 10-1198

was not functioning as the counsel g uara nteed the defe ndant by the Six th Amendment.” Richter , 131 S. Ct . at 787 (interna l quotation marks omitted). “To establish Strickland prejudice a defe ndant must ‘s h o w t h at there is a rea sonable probability that, but for counsel’s unprofe ssional err ors, th e result of the proce eding would have been differ ent.’” Lafler v. Cooper , 132 S. Ct. 1376, at 1384 (2012) (quoting Strickland , 466 U.S. at 694). “‘A re as o nable probability is a probability sufficie nt to undermine confide nce in the outcome.’” Richter , 131 S. Ct. at 787 (quoting Strickland , 466 U.S. at 694). “Counsel’s er ro rs m u s t be so seri o u s as to deprive the defe ndant of a fair trial, a trial whose result is reliable .” Id

. at 787–88 (interna l quotation marks omitted). I n its decision in 2003, t he Michig an Court of Appea ls found that counsel’s failure to investiga te the possibili ty of an insanity defe nse consituted defic ient perf ormanc e, but rema

nded the

case for further finding s with respe ct to the question of prejudice

. W alker , 2003 WL 133057, at *3. After the lower court co n d u ct ed a Ginther hear ing, wher e it deter mined that Petitioner had not suffe red prejudice , t h e Michig an Court of Appea ls issued the decision we revie w today

. I n that decision, the court deter

mined that counsel’s perf ormanc e was inadequa

te, W alker , 2005 WL 3 657727, at *1 n.6, but on the question of prejudice , it found that Petitioner had not shown that “the defe nse was meritorious and the failure to prese nt it deprive d [hi m] of a rea sonably likely chanc e of acquittal.” Id. at *1.

The Michigan Court of Appea ls based at lea st part of this decision on the l aw- of-the- case 3 doctrine, f

inding that it was bound by the ea rlier pa nel’s dete rmination of def icient per formanc e. 9No. 10-1198

This w as an incorre ct statement of the constitutional rule , and a court’s failure to analy ze a claim of ineffe ctive assistance under the corr ect standard, under appropr iate circ umstances, can g ive rise to a g rant of habea s corpus. W illiams , 529 U.S. at 397. Th e S u p reme Court has stated that defic ient perf

ormanc e is prejudicia l when: “ther e is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent. A rea sonable probability is a probability sufficie nt to under m i n e confide nce in the outcome.” Strickland , 466 U.S. at 694. Thus, a rea sonable probability of acquittal is not a require ment t o b e s h o wn by a defe ndant seeking to demonstrate prejudice resulting from his co u n s el ’s defic ient perf ormanc e; rathe r, a defe ndant is require d to demonstrate a rea sonable probability of a differ ent outcome—a somewhat lower burden for a defe ndant. And even if the differ ence betwee n a rea sonable probability and “re asonably likely ” is not, by itself, enoug h for us to char acte rize the Michig an court’s decision

as so unrea sonable as to g ive rise to a g rant of habea s, W illiams , 529 U.S. at 411, the Michig an court also err ed in stating that this rea sonable probability was rela ted to the chanc e of an acquittal, rathe r than only rela ted to undermining confide nce in the result. There wer e o t h er possible outcomes, 4 including a hung jury , or g uilty by rea son of mental insanity , that would have been better outcomes

Fur thermore , the state court decision did not otherwise rec ite the Strickland standard, so we 4 cannot conclude that this statement of the rule was some form of permissible sh o rt h and. See Holland v. Jack

son , 542 U.S. 649, 654–55 (2004). The court ref ere nced the Strickland standard in two other pa

rts of the de cision. I n footnote 6, t he cour t describe s the prejudice prong as re quiring a defe ndant to show that his attorney ’s repr esenta tion “wa s so prejudicia l to him that he was denied a fair trial.” W

alker , 2005 WL 6577727, at *1 n.6. The court also stated that “[it] conclude [s] that there was not a reasonable probability that def en d an t h ad a li kely chanc e of acquittal.” Id. at *2. Neither of these constructions can be fairly descr ibed as eff ective shorthand for the actua l Strickland standard . See W

oodford v. Visciotti , 537 U.S. 19, 23–24 (2002).

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for Petitioner. The Michig an court stated outrig ht that “def endant failed to show that he had a meritorious insanity defe nse, and thus, failed to show that counsel was ineffe ctive fo r failing to prese nt such a de fense .” W alker , 2005 WL 657727, at *1. Neve rtheless, in any event, ther e is no way that Petitioner could demonstrate that he was likely to p re v ai l with a defe nse that he was preve nted from pr esenting beca use of his lawy er’ s deficie nt perfor mance . The S u p re m e C ourt has never held that prejudice under Strickland require s a court to examine whether acquittal was likely ; the standard has alway s been conce rned with the probability

o f a d i ff er ent result based on the fairne ss of the proce eding

. See W oodford , 537 U.S. at 22– 2 4

. (“U ndermin[ing] confide nce in the outcome is exactly Strickland ’s descr iption of what is meant by the rea sonable probability stand a r d

. A rea sonable probability is a probability sufficie nt to undermine confide nce in the outcome.”) (quoting Strickland , 466 U.S. at 6 9 4 ) (interna l quotation marks omitted, altera tion in orig inal); see also Lockhart v. Fretwell , 506 U.S. 364, 372 (1993). Def endant

was not require d to show that but for the failure to prese nt the insanity defe nse, he would have been acquitted, but only that beca use he was unable to prese nt such a defe nse, his trial was unfair such that

we c an no long er be confide nt in the verdict. Moreove r, even wer e we to consider the Michig an Court of App ea l s ’ s t at ement of the Strickland prejudice standard as rea sonably corr ect, the court also improperly applied the standard. First, virtually all of i t s rea soning focuse d on rea sons why defe nse counsel did not pursue the insanity defe nse as a strateg y . W alke r , 2 0 05 WL 657727, at *1. But that is immaterial to the question of prejudice

. I t is only rele vant insofar as it might show that defe nse counsel’s perf ormanc e

was not defic ient. As the court acknow ledg ed, there had alre ady been a finding o f d eficient

11No. 10-1198

perf ormanc e by the Michig an Court of Appea ls in its 2003 decision, and under the law-of -the-c ase doctri n e, the court had no basis upon which to disturb that finding

. Id. Having found defic ient perf ormanc e, the c ourt was r equire d to analy ze prejudice , which it failed to do in any thing but the
most conclusory terms, and its failure to do so was err or. See, e.g. , Sears v. Upton , 561 U.S. —, 130 S. Ct . 3259, 3264–65 (2010). No “fa irminded jurist,” Harrington , 131 S. Ct. at 786 (quoting Y arborough v. Alvarado , 541 U.S. 652, 664 (2004) (interna l quotation marks omitted)), could be confide nt in the verdic t g iven by the jur y here

. The jury never hear d any evidenc e about Petitioner’s long and well-doc umented h istory of sever e mental illness, which included incidents of psy chosis, hallucinations, and schizophrenia, o v er a p eriod of approximately thirty y ear s prec eding the trial, starting when P et i t i o n er was six teen y ear s old. Nor did the jury hear any evidenc e of his course of trea tme n t , which included multipl e hospitaliz ations as well as out-patient car e from various fa cil ities, or reg arding his me dication history , including his irr eg ular usag e of presc ribed anti-psy chotic drug s. Pe ti ti o n e r ’ s me n

tal health was seriously impaired enoug h for him to rec eive Social Security disab il it y benef its, and he was under t he guar dianship of his mother due to his psy chiatric disability

. All of this e vidence was prese nted to the trial court at the Ginther hear ing, but not to the jury , and to f ind that there was no rea sonable probability of a differ ent out come that would have been favora ble t o Petitioner, such as g uilty but mentally i ll, had this evidenc e been prese nted, was an unrea sonable application of clea

rly established fe dera l law. See Kyles v. W hitley , 514 U.S. 419, 434 (1995); c f. Porter v. McCollum , 558 U.S. 30, 41 (2009) ( per cu r i am ) (g ranting habea s relief on Strickland g rounds wher e defe nse counsel failed to pr esent any mitigation evidenc e at a capital sentenc ing)

.
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I n sum, the Michig an Court of Appea ls’ decision in 2005 failed to apply t h e co rrect rule. Having found, in its ear lier decision, that defe nse counsel’s perf ormanc e was defic ient, the court was require d to examine whether there would have been a rea sonable probability of a differ ent outcome had def ense c ounsel prese nted an insanity defe nse. F urthermor e, even i f we construed the court’s

rea soning as st ating the correc t rule, the court failed t o proper ly apply the rule, beca use i t focuse d its inquiry on improper fac tors. Finally , it wa s unrea sonable for the court to f ind tha t the re was no

rea sonable chanc e of a differ ent outcome g iven Petitioner’s extensive history of mental illness that the jury was never confr onted with. Acc ording ly , we reve rse the district court’s denial of the writ. Howeve r, in light of the Supreme Court’s instructions to rec onsider o u r p rior decision in light of Parker v. Matthews , 567 U.S. —, 132 S. Ct. 2148 (2012) ( per curiam ), we will specific ally addre ss the applica tion of that decision to the instant case

. D. The Su prem e Court ’s Dec ision in Parker v. Matthews I n P a r ke r v. Matthews , the Supreme Court reve rsed a decision of this Court, Matthews v. Parker , 651 F.3d 489 (6th Cir. 2011), which c oncer ned a capital murder conviction in Kentucky

. I n that case , this Court g rante d a writ of habeas corpus to Petitioner David Matthews with respe ct to two of his c laims. First, we found that the Kentucky court had improperly shifted the burden of proof onto Matthews to show extreme emotional disturbance (“EE D”) , in violation of the familiar rule of In re W

inship , 397 U.S. 358 (1970). Matthews , 651 F.3d at 504. We further found that it was

13No. 10-1198

unrea sonable for the Kentucky courts not to find that prosec utorial misconduct had rendere d the proce eding unfair. Id. at 507. 5 Whil e the fac ts of that case have been rec ounted by courts many times b ef o re , s o m e b ear repe ating here

. Peti t i o n er Da v id Matthews drank in a bar, wher e he also took Valium and Dexedrine. Matthews ,651 F.3d at 494. Whil e at the bar, he borrowe d $50.00 from a his companion,

a woman he had been seeing , having told her that he wanted to use the money to buy a g un. Id. He then broke into his wife’ s home and killed his mother -in-law. Id. After killing his mother -in-law, he had sex with his wife, and stay ed with her for sever al hours, until about 6:00 a.m., when he shot and killed her

. Id. He then w ent bac k to his mot her’ s house, hid the g un in the y ard of the house, asked his mother to w ash his c lothes, took mor e Valium, and went to sle ep. Id. L ater that day , he was take n into custody , and wa s eventua lly indicted for the two murders a nd burg lary

. Id. Under the Kentucky murder statute as it exis ted at the time of the killings, the absenc e of EED was an element of the crime. See id. at 499. Howeve r, based on t h e Ke n t u cky Supreme 6

The prosec utor made sever al inappropria te re m ar k s during closing arg uments that 5 impermissibly

denig rate d petitioner’s c laim of EED.

The Ke ntucky

statute stated that a pe rson commits murder whe n: 6 with the intent to cause t h e d ea t h of another person, he cause s the death of such person or of a third person; except that in any prosec ution a person shall not be g uilty under this subsection if he acte d under the influence of extreme emotional disturbance , the rea sonablene ss of which is to be deter mined from the viewpoint of a person in the defe ndant' s situation under the circ umstances as the defe ndant believed the m to be. Ky . Rev. Stat. § 507.020(1)(a ) (quoted in Matthews , 651 F.3d a t 499). 14No. 10-1198

Court’s decision in Gall v. Commonwealth , 607 S.W .2d 97, 108–09 (Ky

. 1980) (“ Gall I ”), the g overnme nt bore the burden of proof on the absenc e of EED, bu t a jury did not need to find the absenc e o f EED bey ond a rea sonable doubt unless the defe ndant had met an initial burden of production on the issue. Sometime afte r Matthews committed the murders, the Kentucky Supreme Court expli citly place d the burden of proof with respe ct to EED on defe ndants. Matthews , 651 F.3d 7

at 500. I n Matthews’ case , the later rule was in place by the time that the Kentucky Supreme Court decide d his direc t appea l, but Gall I had been g ood law when Matthews committed h i s crimes. There fore , under the familiar r ule of Bouie v. City of Columbia , 378 U.S. 347, 354–54 (1964), the Kentucky courts wer e require d to use the Gall I rule in deciding Matthews’ case . Ma t t hews , 651 F.3d at 500. Howeve r, the Kentucky Supreme Court, in examining Matthew’s arg ument that the state had f

ailed to ca

rry its burden of proof

with respec t to EED, applied the late r rule. This Court foun d t h at t his violated clea rly established fede ral law. Id. I n particula r, we found that under In re W

inship , 397 U.S. 358, 364 (1970), the state must prove eve ry element of a crime bey ond a rea sonable doubt, and that once Matthews had introdu c e d s u fficie nt evidenc e of EED to trigg er its a

bsence as an e lement of the c rime, the prose cution had to prove the abse nce of EED bey ond a rea sonable doubt. Be cause the prosec ution had introduced no indepen d en t ev i d ence to contra dict Matthews’ evidence of EED, and had not undermined Matthews’ evidence, no rationa l trier of fac t could have found that the state had proven the ab s en ce o f E E D bey ond a rea sonable

The Kentucky Supreme Court, in W ellman v. Commonwealth , 694 S.W .2d 696 (Ky .1985), 7 stated that “[t] o the extent that

. . . ca s es d ec l ar e absenc e of extreme emotional distress to be an element of

the cr ime of murder , they are expressly

overr uled.” Id. at 697. 15No. 10-1198

doubt. Matthews , 651 F.3d at 503–04. This Court further found that the Kentucky Supreme Court had unrea sonably applied fede ral law by failing to g rant Mat t h ew s ’ ap peal on the basis of prosec utorial misconduct. During closing arg uments the prosec utor made seve ra l rema rks denig rating Matthews’ use of an EED defen s e. I n evaluating that claim, we applied the test for prosec utorial misconduct used in Broom v. M itchell , 441 F.3d 392 ( 6th Cir. 2006). The Unite d St ates Supreme Court reve rsed our decision, finding that the Kentucky courts had
not violated clea

rly established law in a llocating the burden of proof on the EED element beca use the jury had been proper ly instructed, Parker , 132 S. Ct. at 2151–52; and beca use habea s challeng es to the suffic iency

of evide nce must be doubly defe rential, a

court must defe r to the finding s of t he jury , which wi l l n o t be dis turbed unless no rational trier of fact could have rea ched the result. Id.
at 2152 (quoting Jack

son v. Virginia , 443 U.S. 307, 319 (1979))

. Th e S u p re m e Court found that beca use the jury

had bee n proper ly

instructed on EED, a

nd the proof of

fer ed at trial could support

a finding that the state had proven the element, the Kentucky Court’s invo ca t i o n o f the improper standard was immaterial. Id. at 2151–52. Discussing our g rant of the writ based on prosec utorial misconduct, the Supreme Court found that our decision was flawed because the Kentucky court’s decisio n “w as [ n ot] so lacking in justification that there was an err or well understood and compre hended in exis ting law bey ond any possibili ty for fairminded disag ree m ent.” Id. at 2155 (quoting Harrington , 131 S. Ct . at 786–87 (2011) ( internal quotation marks omitted))

. I n particula

r, t he S upreme Court criticized this Court fo r reliance on our own circ uit court p recede nts as to what constitutes clea rly established law. Parker , 132 S. Ct. at 2 1 5 5

. I n

rec onsidering our decision in the instant case , we rec og nize that we applied the “substantial defe nse” 16No. 10-1198

standard used in this Circuit, W alker I , 656 F.3d at 321, and this was inappropria te in light of Parker , 132 S. Ct. at 2155. Howeve r, rec og nizi ng that the Supreme Court has reje cted the application of the Six th Circuit substantial defe nse st an d ar d wi t hin the context of habea s revie w of state court decisions, upon fu rther consideration we find that the traditional Supreme Court standard as articula ted in Strickland

itself justifies gr anting the writ in the ca se bef ore us. Unlike in Parker , wher e the jury had considere d the claim of EED, here the claim of insanity was never presented to the j ury . Ac cording ly , rathe r t han the twice- defe rential standard accorde d to jury deter minations, we only

defe r to the re asonable conclusions of the state court. See P arker , 132 S. Ct. at 2152–53. And these deter minations wer e patently u nrea sonable. I f any thing, the

rea soning of Parker streng thens our belief that the Michig an court’s decision wa s u n rea sonable, beca use the state appellate court usurped the fac t-finding province of the jury , wh ich was never permitted to consider Petitioner’s claim of leg al insanity

. See id. at 2152. Whil e we are mindful of

our obliga tion to uphold al l rea sonable jury deter minations of what conclusions should be draw n from the evidenc e prese n ted at trial, see, e.g. , Cavazos v. Smith , 565 U.S. —, 132 S. Ct. 2, 3–4 (2011) ( per curiam ), at Petitioner’s trial, no evidenc e was prese nted. I t is prec isely this inability to have a jury consider the defe nse, beca use of the ineffe ctive assist an ce o f h is counsel, and the prejudice resulting there from, that entitles Petitioner to the writ.

I n Parker , the Kentucky courts had a full rec ord with which to evalua te the sufficie ncy of the proof of EED in the context of a jury verdic t. But there is no such rec ord in the instant case for the Michig an Court of Appea ls to have evalua ted. The only finding s, any wher e in the rec ord, with respe ct to Petitioner’s mental state, we re a t the Ginther hear ing. And those finding s of fa ct appe ar 17No. 10-1198

to support a conclusion that Petitioner suffe red Stricklan d p re j udice when his attorney failed to prese nt an insanity

defe nse. I n Parker , there was e vidence of ra tional behavior and preme ditation that could have prec luded a finding of EED, and the S u p re m e C o u rt deter mined that it was not

unrea sonable for the Kentucky appellate court to find that a proper ly instructed jury ’s finding meant that the state had met its burden. I n the instant case , the Michig an Court of Appea ls selec tively used fac ts, such as Petitioner’s attempt to hide the g un used in the killing, that had never been examined in the context of Petitioner’s long history of mental illness. Given the Michig an Court of Appea ls’ finding of defic ient perf ormanc e, and g iven the Supreme Court’s statemen t of the rea sonable probability

standard, this wa s an unre asonable conclusion to draw

. Acc ording ly , upon rec onsideration, we find that the Supreme Court’s decision in Parker v. Matthews does not alter the result in our prior decisi o n in this case . Whil e we are mindful of the Supreme Co u rt ’s admonition to consult only prec edent from the Supreme Court as the basis for clea rly established law, Petitioner’s claim is based on his rig ht to eff ective counsel as established in Strickland , and we have no doubt tha t this constitutes c lear ly established law as deter mined by the Supreme Court. We further find that beca use the proper ly i n s t ru ct ed jury in the Parker case was prese nted with the ev i d en ce o f EED, there was a rea sonable fac tual basis for the state court’s decision in Parker that is en t i re l y absent in the instant case . I n light of that key distinction, the primary application of the Parker decision mus t be to limit this Court’s analy sis to clea rly established law as deter

mined by the Supreme Court. Having analy zed the case on those terms, we find that the writ should issue.

18No. 10-1198 CONCLUSION The district court err ed in failing to g ran t P et i t i o ner a writ of habea s corpus based on the ineffe ctive assistance of counsel. There fore , we REVERSE the decision of t h e d i s trict court, GR ANT Walker’s petition for a writ of habea s corpus, and order that Walker be rele ase d fr o m custody unless the State of Michig an commence s a new trial wit hin 180 day s of the date of this order

.

19No. 10-1198

COOK, Circuit Judge, dissentin g. Thoug h addre ssing the problem highlig hted in Parker

v. Matthews , 132 S. Ct. 2 1 4 8 (2 0 12), the court’s revised opinion persists with many aspec ts questioned by my prior dissent. I there fore stand by that ear lier di s s en t , adding the following observa tions about the new opinion. The majority retre ats from its ear lier criticism of the state court’s interpre tation of M i chigan’ s leg al insanity statute. Cf. W alker I , 656 F.3d at 320–21 (conc luding that “[t] he s t at e appea ls court’s deter

mination, based on its own assessment that the ‘evide nce that defe ndant had the consciousness of g uilt’ outweig hed all evidenc e reg arding Walker’s mental illness, is a thinly veiled and unsupportable conclusion that it simply did not b eli eve that Walker was leg ally insane” ). I t likewise esc hews its sua sponte, indepe ndent ra tionale for habea s relief under § 2254( d)(2)

. Id. at 319 (finding that the Michig an Court of Appea ls unrea sonably deter mined fac ts in light of the evidenc e ). I n its place , howeve r, the court now claims that the state court failed to apply the corr ect Strickland rule, deny ing in a foot n o t e that the state court even rec ited the corr ect standard. See supra n.4. This rea soning depar

ts from the court’s finding in W alker I that the state court had “prope rly stat[ed] the Strickland standard for prejudice,” 656 F.3d at 320, and, more importantly , overlooks the fac t that the state court did. Compare People v. W alker , 2005 WL 657727, at *1 n.6 (citing statecourt author i t y i n i t s discussion of Strickland , and defining prejudice as “a rea sonable probability that, but for counsel ’s er ro rs, the result of the proce eding would have been differ ent”) , with Strickland , 466 U.S. at 694 (“The def endant must show t hat t here is a reasonable probability that,

20No. 10-1198

but f or counsel’s unprofe ssional error s, the result of the pr ocee ding w ould have be en diffe rent.” ). I n this battle of the footnotes, the state court ha s the upper ha nd. The a bove portion of the sta te cour t’s opinion corre ctly

stated the Strickland standard, a nd its conclusion also utiliz ed Strickland ’s “re asonable probability ” lang uag e. People v. W alker , 2005 WL 657727, at *2 (finding that “ther e is not a rea sonable probability that d ef en d an t h ad a likely chanc e o f ac q uittal”). Given this context, the fac t that the state court twice ref err ed to a “likely chanc e of acquittal” in its application of the rule—without corr esponding lang uag e excluding other outcomes—does not ref

lect an attempt to raise Strickland ’s prejudice bar. Cf. Cullen v. Pinholster , 131 S. Ct. 1388, 1404 (2011) (cla rify ing that a “re asonable probability

. . . sufficie nt to undermine confide nce in the outcome,” un der Strickland , “re quires a ‘substantial,’ not just ‘conc eivable,’ likelihood of a differ ent result” (citation omitted)); Knowles v

. Mirzayance , 556 U.S. 111, 127–28 (2009) (re versing habeas re l i ef and reje cting Strickland claim wher e petitioner failed to show a “‘r easona ble probabili ty ’ that he would have prevailed on his insanity defe nse had he pursued it” (empha sis added))

. Nor doe s the state cour

t’s char acte rization of Strickland prejudice as ineff ective a ssistance that “wa s so prejudicia l to [t he defenda nt] that he was denied a fair trial,” People v. W alker , 2005 WL 657727, at *1 n.6; it closely trac ks Strickland ’s descr iption of the conce pt, see Strickland , 466 U.S. at 687 (obser

ving that prejudice “re quires showing that counsel’s err ors wer e so serious as to deprive the defe ndant of a fair trial, a tri al wh o s e re s u lt is reliable ”). As the Supreme Court has reminded us, AEDPA require s that we gi v e s t at e- court decisions “the benef it of the doubt” and “pre sum[ e] that state courts know and follow the law” unless shown otherwise. Holland v. Jack son , 21No. 10-1198

542 U.S. 649, 654–55 (2004) (citations omitted). Today ’s majority does neither. See id. (re versing this court’s g rant of habea s relief and reje cting Strickland claim, wher e the state co u rt p roperly

rec ited the Strickland

prejudice standard, and s tray ref ere nces to a

preponde ranc e-of

-the-e vidence standard did not evinc e a de parture from that standa rd). Compounding the err or, the majori t y d i s misses the state court’s prejudice analy sis as “conc lusory ,” and seems to fault the state court for expressing doubts about its previous ineffe ctiveassistance finding

. See People v. W alker , 2005 WL 657727, at *1 (conc luding that “def endant failed
to show that he had a meritorious insanity d ef en se, and thus, failed to show that counsel was ineffe cti v e fo r fa i l ing to prese nt such a defe nse”)

. As explained in the W alker I dissent, the state court weig hed petitioner’s new mitigating evidenc e ag ainst Dr. Fields’s contra ry repor ts and defe ndant’s multipl e attempts to conce al the murder, ultimately ag ree ing with defe nse counsel that petitioner’s insanity defe nse would be unavailing

. That conclusion is not objectively unrea sonable; fairminded jur ists could (and did) disag ree on this point . I n light of this ana ly sis, I fail to see how the state court’s rese rvations on the ineffe ctiveness issue elevat es this case to an “extreme malfunction[] in the state cr iminal just ice sy stem[] ” wa rra nting r elief unde r AEDPA. Harrington v. Richte r , 131 S. Ct . 770, 786 (2011) ( citation omitted).

I respe ctfully

dissent.

22