UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PHILIP JON FAHRNER,

 

Petitioner, Case Number 2:09-CV-11908

 Honorable Paul D. Borman

v.

PERCY CONERLY,

Respondent.

________________________________________/

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,

AND (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

I. Introduction

Petitioner, Philip Fahrner, is serving a 9-to-15 year sentence for his 2006 Grand Traverse

Circuit Court conviction for first-degree child abuse, MICH. COMP. LAWS 750.136b(2). 

Petitioner asserts that he was denied the effective assistance of counsel at trial. The Court will

deny the petition because the state court adjudication of his claim was not contrary to, or did not

involve an unreasonable application of, clearly established Supreme Court law.

II. Background

At Petitioner's jury trial, Amy Strang testified that she was the mother of the

complainant, Cameron, who was eleven months old at the time of the incident. She was engaged

to Petitioner. On July 22, 2005, Petitioner was watching Cameron while Strang was at work. 

Petitioner called Strang at work and told her that Cameron had fallen in the living room and had

hit his head on the coffee table and had also hit his head on the floor. He told her that a bruise

was starting to form on the side of his head. Petitioner said Cameron had hit his head pretty

badly and was not crying or moving. 

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When Strang arrived home, Cameron was lying on the couch. An ambulance arrived and

Strang rode with Cameron to the hospital in Traverse City. Petitioner told doctors that Cameron

had hit his head and thrown himself back. Strang saw a bruise on the left side of Cameron's face. 

Strang asked Petitioner if Cameron had hit anything else or if anything else had happened, and

Petitioner denied that anything else had happened. The doctors performed emergency surgery on

Cameron to relieve the pressure on his brain. 

Cameron was transferred to DeVos Hospital in Grand Rapids early the next morning. 

The doctors told Strang that Cameron would not survive. Later that day, a detective came into

Cameron's room and told Strang that Petitioner had told him that he had done it. 

Cameron was hospitalized until August 12, 2005. At the time of trial, Strang and

Cameron were living with her mother. Cameron could make noises, but he could not eat or cry.

She was told that Cameron could die at anytime, and doctors expected that he would never talk

or move or open his eyes again.

Rachel Lile, Petitioner's neighbor, testified that sometime after 9:30 p.m. on the night of

the incident, she was getting ready for bed when Petitioner knocked on her door. Petitioner was

holding Cameron and asked her if she could help him. Petitioner told her that Cameron had

fallen and had hit his head on the coffee table. Petitioner handed Cameron to Lile. Lile asked if

Petitioner had called 9-1-1. Petitioner looked at his cell phone as though he had planned to call,

but when he did not dial, Lile called 9-1-1 herself. 

Munson Hospital Emergency Room Nurse Christine Johnson testified that Petitioner

initially stated that he did not know what had happened to Cameron. Petitioner then stated that

Cameron fell forward and hit his face on a coffee table and then fell backward onto the carpeted

floor. In Johnson's experience, Petitioner's explanation was inconsistent with Cameron's

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"severe" injuries. Johnson called the police.

Dr. John Kopec testified that he worked in the pediatric intensive care unit at DeVos

hospital in Grand Rapids. He described Cameron as suffering from a very large subdural

hematoma. The doctors who initially operated on Cameron removed approximately one-third of

Cameron's skull and drained that blood. An MRI confirmed that Cameron suffered a massive

injury to the right side of his brain which left that hemisphere "pretty much dead." There was

also injury to the left side of the brain. In Kopec's opinion, Cameron's injuries were not the

result of a chronic condition because of the rapid rate of deterioration in his condition.

Kopec noted that Cameron also had a large handprint bruise on the left side of his face

and a fractured right clavicle. Cameron's fractured clavicle did not come from hitting a door. 

Rather, there was direct trauma to his chest which broke his clavicle, resulting in a depressed

fracture. Cameron also had numerous bilateral retinal hemorrhages.

In Kopec's opinion, Cameron's injuries were not consistent with the type of injury

described by Petitioner. He opined that Cameron's injuries were more consistent with a child

involved in a high-speed car accident or falling several stories out of a window. Kopec believed

that it was possible for an adult to hit or throw Cameron hard enough to cause the injuries. 

Detective Paul Postal testified that he went to the hospital in Grand Rapids with

Detective Nathan Ritter. Petitioner told them that while he was making dinner, Cameron hit his

head on a coffee table and threw himself backward onto the carpeted floor. When Petitioner

picked up Cameron, Petitioner began to walk to the kitchen and Cameron threw up on him. 

Petitioner went to get a washcloth and Cameron began stiffening. Petitioner called his mother,

who told him to go to a neighbor's house to get help. Petitioner put this version of events in a

written statement. 

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Postal showed the statement to Kopec and then went back to talk to Petitioner. Postal

told Petitioner that his statement was not consistent with Cameron's injuries. Petitioner

explained that besides hitting his head on the table and floor, he had also dropped Cameron onto

the floor while carrying him into the kitchen and then hit Cameron's head on the door frame

when he carried him out of the house. After hearing Petitioner's second statement, Postal again

spoke with Kopec, who told Postal that Cameron's injuries were not consistent with that story

either. Kopec also told Postal that there was a hand mark developing on Cameron's left cheek.

When Postal confronted Petitioner about the hand mark on Cameron's face, Petitioner put

his hand to his chest, began crying, and stated: "I hit him." Petitioner then described how

Cameron refused to take his bottle so Petitioner slapped him across the face. Petitioner then

described how Cameron subsequently hit his head on the table and floor, and how Petitioner

tossed him when Cameron threw-up on him. 

Petitioner's parents came to the hospital break room where Postal was interviewing

Petitioner. Petitioner's mother asked what was going on because this was "just an accident." 

Petitioner responded: "No, there is more." Postal left Petitioner with his parents. When Postal

returned, Petitioner admitted hitting Cameron "hard." Petitioner then gave the police an

audio-recorded statement, and he was placed under arrest. 

Dr. AnnaMaria Church testified that she was the Interim Director of the Child Protection

Team at DeVos Children's Hospital. After being qualified as an expert, Church testified that

Cameron's injuries "were much too significant to have been caused by a drop" and, instead,

resulted from "considerable force." Church opined that someone slapped Cameron in the face,

shook him, causing the retinal hemorrhages, and then threw him against the floor or a wall with

sufficient force to break his clavicle and cause a subdural hematoma. Cameron's injuries were

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not consistent with being hit by a door or being dropped onto a linoleum floor. Cameron's

injuries could have been accidentally inflicted if he had fallen out of a three-story apartment

building and hit cement. Church did not diagnose Shaken Baby Syndrome. According to

Church, if Cameron had had a subdural hematoma from being born, it would have dissipated

within four to six weeks.

Dr. Cynthia Smith testified that she was Cameron's pediatrician. Cameron was healthy

before July, 2005, but he was now tube fed. Smith opined that one day Cameron might be able

to suck and swallow from a bottle or spoon, but he would never pick up a spoon and feed

himself. Cameron had severe brain damage and would never talk or walk. In Smith's opinion, it

was still very likely that Cameron would die from complications from his injuries.

Petitioner called Gary Kiernan, the first EMT to arrive at Lile's house, as a witness for

the defense. Kiernan saw that Cameron had a contusion above his left eyebrow, but he did not

see any other marks. Timothy Shaffer, a volunteer fireman, responded to Lile's house and

assisted one of the EMTs. He testified that Cameron was not crying, his eyes were open, and he

had "a goose egg bump on the left side of" his forehead. Shaffer did not see a mark on

Cameron's face. Kyle Stites, an EMT and a firefighter, saw that Cameron had a goose egg on his

forehead and was completely motionless and unresponsive though his eyes were open. 

Petitioner's mother Faith Fahrner testified that she was a nurse. On the night of the

incident, Petitioner called her and told her that Cameron had fallen and hit his head on the coffee

table and then hit his head on the floor. Petitioner asked her what he should do, and Faith told

him to get a cool cloth and try to get some ice on the bump. A couple of minutes later, Petitioner

called again, reporting that "it's not good," and that Cameron was throwing up. Faith told him to

keep Cameron's airway open. When Petitioner told Faith that Cameron's legs were stiffening,

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she told him to go and get help. Faith denied Postal's account of how Petitioner told her at the

hospital that it was not an accident and that there was more.

Petitioner testified in his own defense. Petitioner admitted that he slapped Cameron in

the face, but not hard, when Cameron would not take his bottle. He testified that Cameron then

went to the coffee table, hit his head on it and fell back, hitting the carpet. Cameron was crying

and Petitioner picked him up. Petitioner went to the kitchen and Cameron threw up on him. 

Petitioner started to clean Cameron off with his hand when Cameron threw up again. Petitioner

accidentally dropped Cameron, who fell onto to floor, hitting the back of his head. On the way

out of the house, Petitioner testified that the door hit Cameron in the head. Petitioner testified

that he did not initially tell the doctors or the police everything that had happened because he

was scared and did not want them to think that he was careless.

Mark Southby, Petitioner's employer, testified that Petitioner was a great employee,

having worked for him for one and one-half years. To Southby's knowledge, nothing stressful

had happened that day at work. Arnie Besonen, Petitioner's former teacher, testified that

Petitioner had a reputation for being a truthful person. Jamie Miller was married to Petitioner's

best friend and also testified that Petitioner had a reputation for being truthful. James Miller also

testified that Petitioner had a reputation for being truthful. Petitioner's grandfather Robert

Brinkman also testified that Petitioner had a reputation for truthfulness.

The jury found Petitioner guilty as charged, and he was sentenced to 9-to-15 years in

prison. 

Petitioner filed a claim of appeal in the Michigan Court of Appeals, which raised the

following claims: (1) Petitioner is entitled to an evidentiary hearing on his claim that his trial

counsel was ineffective; (2) the trial court erred in allowing admission of the opinion testimony

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of Dr. Church as to the cause of the complainant's injuries; (3) a new trial should be granted in

light of newly discovered expert testimony; and (4) the sentencing guidelines were scored

incorrectly. 

The Michigan Court of Appeals remanded the case to the trial court to hold a hearing on

Petitioner's ineffective assistance of counsel claim. 

At the hearing, Penny Darnell testified that she was a paralegal for Petitioner's trial

counsel, Jeffery Slocombe. According to Darnell, she performed from 31⁄2 to 4 hours each day

working on Petitioner's case. She talked about the case with Slocombe every day from July

through November, 2005. Darnell estimated that Slocombe spent a couple of hours each week

getting ready for trial.

Darnell testified that Slocombe obtained medical records from Munson and DeVos

Hospitals. Slocombe prepared Faith Fahrner to testify about a pre-existing injury occurring

weeks before the incident. Faith wanted an expert to review the conclusions of the physicians at

the Munson and DeVos Hospitals. Slocombe contacted the Technical Advisory Service For

Attorneys (TASA), which led him to a potential expert. 

While Slocombe was working on Petitioner's case, he was being sued for legal

malpractice in Kalamazoo County. He did not tell Petitioner or his mother of the lawsuit. 

According to Darnell, Slocombe lied to Petitioner's parents about his preparations for the case. 

Darnell testified that she and Slocombe argued about the case.

Faith testified that on the morning of Petitioner's preliminary examination, she met

Slocombe at the courthouse. Within six to eight weeks, Faith became uncomfortable with

Slocombe because he told her that he couldn't get all of Cameron's medical records. Slocombe

gave what he had to Faith, including some of Cameron's pediatric care records up until October

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31, 2005, but she wanted Cameron's growth records, CAT scans, and MRI films. Faith told

Slocombe that they had seen Cameron a week before July 22, 2005, and he was "lethargic," "not

eating," and "not playing." 

Faith also talked to Slocombe about hiring an expert, and she was with him when he

talked with one. The expert had reviewed the records submitted by Slocombe, and he said that he

would not testify for Petitioner. Faith wanted to hire someone else, and Slocombe agreed to try

to find another expert. Slocombe told Faith that before talking to the expert, he had talked to a

couple of local doctors, who also had declined to testify on Petitioner's behalf. 

Petitioner testified that his parents hired Slocombe. For the first month, Slocombe came

to see Petitioner twice each week, but his visits subsequently decreased. Slocombe told

Petitioner that he was trying to get Cameron's complete medical records. They discussed the

idea that Cameron had a "pre-existing injury."

Slocombe testified that he was a licensed attorney. Between ninety and ninety-five

percent of his practice involved criminal defense. He had handled many murder and

manslaughter cases. Slocombe did not have his time records for Petitioner's case, but he recalled

that he had spent a substantial amount of time working on it. Slocombe visited Petitioner

weekly. Slocombe testified that he researched shaken baby syndrome. He obtained articles from

a case being handled by F. Martin Tieber, and he received many articles from Faith. Slocombe

estimated that he had read about fifty articles in preparation for the case.

Faith and Petitioner told Slocombe that they thought Cameron might have had a

pre-existing injury. However, when he talked to the expert he was referred to by TASA, that

possibility was ruled-out given the severity and quick onset of the injuries. Slocombe's trial

defense was to argue that Cameron's injuries were accidentally inflicted. This was consistent

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with what Petitioner told him had happened the first time that they met. 

In March, 2005, Slocombe was ordered in his malpractice case to pay 25% of all fees he

earned to Samuel Field, another attorney. Slocombe denied litigating Petitioner's case off the

books, and he denied that he wanted to resolve Petitioner's case quickly for personal reasons.

Slocombe testified that he had all of Cameron's medical records and forwarded them to

the experts he contacted. None of the experts he consulted had asked for additional records such

as X-rays, CT scans or MRIs. Slocombe sent Cameron's medical records to Dr. Gary Hessler, a

local general practitioner, with the hope that he could refer Slocombe to another expert. Hessler

shopped the case around, but no local doctor would touch it. Hessler sent the case to someone he

knew in Detroit, but that person's findings would not be helpful to Petitioner.

Slocombe arranged to contact Dr. Rosenberg through TASA. Slocombe testified that he

talked to Rosenberg four or five times and Faith was only present for one of the conversations. 

Slocombe could not use Rosenberg because his testimony would have been very damaging to

Petitioner's defense.

The prosecutor obtained a letter from Doctor T.C. Schermerhorn, Cameron's operating

neurologist, addressing the findings of Petitioner's proposed new expert opinions. Schermerhorn

stated that the CT scan showed "mixed density" as well as "hypodense" blood above the

"hyperdense clotted blood." He opined that the decreased density can also "represent hyperacute

or active bleeding as well as trapped cerebral spinal fluid." Regarding the issue of whether there

was "one large bleeding source" which suggested that "the underlying trauma was not severe," 

Schermerhorn opined that even though there was an injury to a major vein, it did not indicate a

less severe mechanism of injury.

Following the hearing, the trial court put its findings of fact and conclusions of law on

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the record. The court concluded that Slocombe's performance was not deficient. The court

denied Petitioner's motion for a new trial. Thereafter, the Court of Appeals affirmed Petitioner's

conviction in an unpublished opinion. People v. Fahrner, 2007 Mich. App. LEXIS 2861 (Mich.

Ct. App. Dec. 27, 2007). Petitioner subsequently filed an application for leave to appeal in the

Michigan Supreme Court, but it was denied by standard order. People v. Fahrner, 481 Mich. 878

(2008). 

III. Standard of Review

Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only

if he can show that the state court's adjudication of his claims on the merits-

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). 

A decision of a state court is "contrary to" clearly established federal law if the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law

or if the state court decides a case differently than the Supreme Court has on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable

application" occurs when "a state court decision unreasonably applies the law of [the Supreme

Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the

writ simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

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The Supreme Court has explained that "[a] federal court's collateral review of a

state-court decision must be consistent with the respect due state courts in our federal system."

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly

deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be

given the benefit of the doubt.'" Renico v. Lett, 130 S.Ct. 1855, 1862, 176 L. Ed. 2d 678

(2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (per curiam)). "[A] state court's determination that a claim lacks merit

precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of

the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011)(citing Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong

case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas

court must determine what arguments or theories supported or...could have supported, the state

court's decision; and then it must ask whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme

Court. Id. "[I]f this standard is difficult to meet, that is because it was meant to be." Harrington,

131 S. Ct. at 786. 

Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar

federal courts from relitigating claims that have previously been rejected in the state courts, it

preserves the authority for a federal court to grant habeas relief only "in cases where there is no

possibility fairminded jurists could disagree that the state court's decision conflicts with" the

Supreme Court's precedents. Id. Indeed, "Section 2254(d) reflects the view that habeas corpus is

a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for

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ordinary error correction through appeal." Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 

(1979))(Stevens, J., concurring in judgment)). Therefore, in order to obtain habeas relief in

federal court, a state prisoner is required to show that the state court's rejection of his claim "was

so lacking in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement." Id., at 786-787.

IV. Discussion

Petitioner claims that his trial counsel provided ineffective assistance. The claim is

comprised of three sets of allegations. First, Petitioner asserts that his trial attorney failed to

conduct basic research regarding shaken baby cases and failed to get the full medical file for the

complainant. According to Petitioner, these failures left his trial counsel unprepared to

effectively cross-examine the prosecution's expert witnesses regarding the cause of the

complainant's injuries and whether their severity necessarily meant that they were the result of

intentional conduct. Second, Petitioner asserts that his counsel labored under a conflict of

interest because he was distracted by personal issues. Petitioner notes that his counsel had been

ordered to pay a portion of his income as the result of a malpractice suit, and that he perpetrated

frauds in civil court and bankruptcy court regarding his finances. Petitioner asserts that this gave

counsel an incentive to keep Petitioner's case "off the books" and hurry it through court. He

claims that as a result of his counsel's personal troubles, counsel even advised Petitioner to plead

guilty at preliminary exam on the false premise that this would preclude future murder charges. 

Finally, Petitioner asserts that his counsel was ineffective for failing to secure a defense expert to

counter the prosecution's experts. He alleges that the TASA-referred expert that counsel

contacted, Dr. Rosenberg, was a well-known prosecution expert who was unlikely to give

counsel a favorable opinion. The experts located by Petitioner during his state court appeal, on

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the other hand, opined that there was no scientific basis for the prosecution's experts conclusion

that the complainant's injuries required extreme force. One of the new experts, in fact, opined

that a review of the medical records showed that the complainant had an old head injury that

could have re-bled and caused the brain injury after a relatively mild trauma.

The trial court held an evidentiary hearing on these allegations, after which it determined

that trial counsel did not perform deficiently. The decision was affirmed by the Michigan Court

of Appeals, as follows:

Defendant first argues that his counsel was ineffective in part because he

was distracted from fully representing defendant by his own personal legal issues.

Defendant further argues that counsel did not conduct adequate research to

effectively defend the case, and that he unlawfully delegated said research to his

paralegal, whom he neglected to supervise. Defendant does not cite specific

examples of how counsel improperly delegated research, but states that the

paralegal would be willing to testify as to these alleged improprieties.

In order “to find that a defendant’s right to [the] effective assistance of counsel

was so undermined that it justified reversal of an otherwise valid conviction, a

defendant must show that counsel’s performance fell below an objective standard

of reasonableness, and that the representation so prejudiced the defendant as to

deprive him of a fair trial.” People v. Pickens, 446 Mich 298, 302-303 (1994). 

The defendant must further demonstrate a reasonable probability that, but for

counsel’s error, the result of the proceedings would have been different, and that

the attendant proceedings were fundamentally unfair or unreliable. People v.

Rodgers, 248 Mich.App. 702, 714 (2001) (citations and emphasis omitted). But,

effective assistance of counsel is presumed and the defendant bears a “heavy

burden” of proving otherwise. Id.

With regard to defendant’s claim that defense counsel did not vigorously

defend his case because of his issues with the bankruptcy court, defendant states

that the United States Supreme Court has held that an attorney is presumptively

ineffective when he labors under an actual conflict of interest. In support of this

claim, defendant cites the Court’s opinion in Strickland v. Washington, 466 U.S.

668 (1984); however, defendant misrepresents the Court’s holding. In Strickland,

the Court stated that “prejudice is presumed when counsel is burdened by an

actual conflict of interest.” Id. at 692. The Court found that a conflict of interest

occurs in situations where counsel has breached the “duty of loyalty,” but

cautioned that prejudice will be “presumed only if the defendant demonstrates

that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict

of interest adversely affected his lawyer’s performance.’” Id. at 692, quoting

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Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980). Defendant has not met the

burden set forth by the Court in Strickland.

Defendant states that he was prejudiced by counsel’s interest in litigating

his case “quickly and quietly” so as to escape the notice of his lawful creditors. 

However, defendant does not provide evidence for this claim, nor does he show

that his defense was hampered in any way by counsel’s ostensibly unrelated

professional or financial problems. Defendant’s trial was litigated over three

days, and defense counsel presented witnesses and cross-examined the

prosecution’s witnesses. There is no evidence in the record that the trial should

have gone on longer but for defense counsel’s negligence and desire to hurry the

case to its conclusion. In People v. Smith, 456 Mich. 543, 557 (1998), our

Supreme Court held that

there is no automatic correlation between an attorney’s theoretical

self-interest and an ability to loyally serve a defendant. . . . [W]e

recognize the potential for an attorney’s self-interest to conflict

with the representation of a defendant and that in such a case a

finding of ineffective assistance of counsel would be warranted. If

a convicted defendant believes that his attorney’s representation

was below an objective standard of reasonableness, the appropriate

procedure is to seek a Ginther hearing.

In the instant case, a Ginther hearing was held, and the trial court made a

decision on the record that counsel was not presumptively ineffective based on his

personal issues with creditors, because there was no actual conflict of interest

involved in hiding money from creditors and effectively representing defendant.

This finding is not clearly erroneous and, accordingly, defendant has not

established an ineffective assistance of counsel claim based on the purported

conflict of interest.

Defendant also argues that his counsel was ineffective because he did not

conduct adequate research to effectively defend the case, and because he

delegated his research duties to an unsupervised paralegal. The issue of defense

counsel’s preparation was also addressed at the Ginther hearing, with the court

making extensive findings on the record regarding counsel’s performance at trial.

The court stated in regard to defense counsel’s cross-examination of one of the

prosecution’s medical experts, “[t]hese are not questions asked by somebody who

failed to prepare on the issue of infant death due to blows or being shaken. He

obviously had done some preparation on the subject.” The court also found that

counsel’s opening statement and closing argument “reflect[ed] preparation and

thought as to how to argue the case.” Defendant does not offer any evidence that

the trial court’s findings were in error. Thus, his claim that he was denied the

effective assistance of counsel fails. See Pickens, supra at 302-303.

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Fahrner, 2007 Mich. App. LEXIS 2861, *1-5.

The Michigan Court of Appeals addressed the expert witnesses discovered by Petitioner's

appellate counsel in the context of Petitioner's free-standing claim that he was entitled to a new

trial in light of this newly discovered evidence:

Next, defendant argues that he is entitled to a new trial because "critical

evidence" was not presented to the jury for its deliberation, and new evidence has

been discovered that was not available prior to trial. After review for an abuse of

discretion of the trial court's decision to deny defendant's motion for a new trial,

we disagree. See People v. Cress, 468 Mich. 678, 691 (2003). 

At the hearing on his motion for new a trial, defendant's appellate counsel

cited reports from his experts that found that the complainant's victim had "mixed

density blood" in his system following his admission to the hospital. According

to defendant's experts, this condition indicated the presence of both old and new

injuries. The court noted that a physician who had operated on the victim

attributed the mixed fluids to the presence of spinal cord fluid in his blood, not to

an old injury; however, appellate counsel argued that whatever the explanation for

the fluid, the matter should have been submitted to the jury. On appeal, defendant

argues that the reports of his experts should be submitted to the court as part of a

second motion for a new trial. 

Our Supreme Court has stated that in order "[f]or a new trial to be granted

on the basis of newly discovered evidence, a defendant must show that: (1) 'the

evidence itself, not merely its materiality, was newly discovered'; (2) 'the newly

discovered evidence was not cumulative'; (3) 'the party could not, using

reasonable diligence, have discovered and produced the evidence at trial'; and (4)

the new evidence makes a different result probable on retrial." Cress, supra at

692, quoting People v. Johnson, 451 Mich. 115, 118 n. 6 (1996). Defendant has

not met the burden required for any of the four elements of the test. 

First, defendant has not shown that the evidence is newly discovered. 

Defendant alleges that the victim's x-rays and brain images were not given to the

defense until after trial. Defendant does not claim, however, that he was unable to

access these medical records prior to trial. Second, this purported newly

discovered evidence was cumulative with regard to defendant's claim that the

subdural hematoma suffered by the victim was a re-bleed of an old injury in that

Dr. John Kopec did acknowledge during defense counsel's cross-examination that

possibility. Third, as mentioned above, there is no indication that defendant could

not have produced this evidence during trial. Finally, in light of these

circumstances, a different result on retrial is not probable. In addition to the fact

that the alleged evidence of a re-bleed was available during trial, ample evidence

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was provided at trial suggesting that defendant was responsible for the child's

injuries. Admission of the experts' reports would not negate the testimony from

the investigating officer regarding defendant's evolving stories of how the child's 

injuries occurred, nor would it likely override defendant's testimony about how

those injuries occurred. 

Incidentally, defendant also argues on appeal that other "critical evidence"

was not presented to the jury and that evidence presented by the prosecution was

not effectively challenged by defense counsel. Therefore, defendant argues, he

should be afforded an opportunity to go before the lower court for an evidentiary

hearing to consider the "several flaws in the State's [medical] evidence" cited by

defendant's "multiple experts." This argument is both vague and unsubstantiated

by defendant's brief and the record. "It is not enough for an appellant in his brief

simply to announce a position or assert an error and then leave it up to this Court

to discover and rationalize the basis for his claims, or unravel and elaborate for

him his arguments, and then search for authority either to sustain or reject his

position." Mudge v. Macomb Co, 458 Mich. 87, 105 (1998). Thus, we reject this

claim.

Fahrner, 2007 Mich. App. LEXIS 2861, *8-11. 

This decision was not contrary to, and did not involve an unreasonable application of, the

clearly established constitutional standard for adjudicating ineffective assistance of counsel

claims. To show that he was denied the effective assistance of counsel under federal

constitutional standards, a defendant must satisfy a two-prong test. First, he must demonstrate

that, considering all of the circumstances, counsel's performance was so deficient that the

attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v.

Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong

presumption that counsel's behavior lies within the wide range of reasonable professional

assistance. Id. Second, the defendant must show that such performance prejudiced his defense.

Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694. ''Strickland's test for prejudice is a demanding one. The

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likelihood of a different result must be substantial, not just conceivable.'" Storey v. Vasbinder,

657 F.3d 372, 379 (6th Cir. 2011)(quoting Richter, 131 S. Ct. at 792). 

A. Failure to adequately prepare for trial

Petitioner's first set of allegations of ineffective assistance allege that his trial counsel did

not adequately prepare to confront the prosecution's experts by conducting enough research on

shaken baby cases and failing to obtain all of the complainant's medical records. 

It is well-established that "[c]ounsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations unnecessary." Strickland, 466

U.S. at 691. The duty to investigate derives from counsel's basic function, which is "'to make the

adversarial testing process work in the particular case.'" Kimmelman v. Morrison, 477 U.S. 365,

384(1986) (quoting Strickland, 466 U.S. at 690). "In any ineffectiveness case, a particular

decision to investigate must be directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691.

"The relevant question is not whether counsel's choices were strategic, but whether they were

reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); Clinkscale v. Carter, 375 F.3d

430, 443 (6th Cir. 2004). A purportedly strategic decision is not objectively reasonable "when

the attorney has failed to investigate his options and make a reasonable choice between them."

Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991) (cited in Combs v. Coyle, 205 F.3d 269,

288 (6th Cir. 2000)).

The claims of inadequate investigation and preparation were explored in depth at the

state court evidentiary hearing. Petitioner's mother testified that she provided Slocombe with 20

to 25 articles about shaken baby cases and talked to him about them. Slocombe testified that he

did research, read approximately 50 articles, and had Petitioner's case reviewed by several

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doctors, including Dr. Rosenberg, whom he found through TASA. His paralegal testified about

the extensive research she did on Petitioner's case on a daily basis and how she also discussed

the case with Slocombe on a regular basis. The testimony of these witnesses was accepted by

the state trial court. Petitioner has not offered any reason, let alone a reason supported by clear

and convincing evidence as required by 28 U.S.C. §2254(e), to show that the testimony is untrue.

Based on Slocombe's extensive investigation and preperation, he formed the opinion that

he could not reasonably challenge the case on the grounds that the complainant's injuries were

the result of a minor trauma causing a re-bleed of an old injury. The multiple experts he

contacted simply would not support such a theory. This is not a case where a defense attorney

completely neglected an obvious avenue of defense. Rather, the evidence presented at the

hearing in state court reasonably supports the conclusion that Slocombe's investigation and

preperation for trial was reasonable given the information he received. Moreover, the trial court

concluded that Slocombe's cross-examination and opening and closing revealed that he was

prepared. This Court agrees. Any fair reading of the trial record shows that Slocombe was not

ill-prepared for trial. 

Petitioner also asserts that Slocombe was ineffective for failing to obtain all the CT scans

and MRIs. At the state court hearing, Slocombe testified that none of the experts he consulted

asked for these additional records. It was reasonable for Slocombe to rely on the professional

judgment of the medical experts he consulted as to what records were necessary for them to

review. And, more to the point, it was reasonable for the state court to reject this allegation based

on the evidence produced at the hearing. 

B. Conflict of Interest

Petitioner next alleges that his attorney's personal troubles created a conflict of interest,

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causing him to rush Petitioner's case through court and keep it off of his books. He asserts that

he is entitled to relief on this ground without the need to affirmatively show that he was

prejudiced by his counsel's conflict. 

"Prejudice is presumed only if the defendant demonstrates that counsel 'actively

represented conflicting interests' and that 'an actual conflict of interest adversely affected his

lawyer's performance."' Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335,

350, 348 (1980) (holding that to establish a Sixth Amendment violation resulting from the joint

representation of multiple defendants by a single attorney, a defendant who fails to object at trial

must demonstrate an actual conflict of interest that adversely affected his attorney's

performance) (footnote omitted)).

The rule that proof of prejudice is excused when the lawyer is burdened by a conflict of

interest has been limited to cases where the conflict arises from multiple representation. See

Mickens v. Taylor, 535 U.S. 162, 167-69 (2002). In Mickens, the Court refused to extend the rule

beyond that factual circumstance, stating that although the Sullivan rule had been applied

"unblinkingly" to various kinds of conflicts of interest that did not involve multiple

representation, Sullivan "does not clearly establish, or indeed even support, such expansive

application." Id. at 174-75. The Court reasoned that Sullivan and Holloway v. Arkansas, 435

U.S. 475 (1978), "stressed the high probability of prejudice arising from multiple concurrent

representation, and the difficulty of proving that prejudice." Ibid. However, the Court believed

that "[n]ot all attorney conflicts present comparable difficulties" and concluded that it remained

an "open question" whether Sullivan should be extended to cases other than multiple

representation. Id. at 175-76.

After Mickens, the Sixth Circuit has been reluctant to apply the Sullivan rule to conflicts

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of interest that do not arise from multiple representation. In Smith v. Hofbauer, 312 F.3d 809,

817 (6th Cir. 2002), the court held that a habeas petitioner was not relieved of the requirement of

showing prejudice under Sullivan for an ineffective assistance of counsel claim based a conflict

of interest that arose from other than multiple representation. Other cases have come to the same

conclusion. See Harrison v. Motley, 478 F.3d 750, 756-57 (6th Cir. 2007) (holding that neither

Sullivan nor Holloway applied to the petitioner's claim that his lawyers had a conflict of interest

in representing him based on their fears of criminal prosecution and malpractice for witness

tampering); Stewart v. Wolfenbarger, 468 F.3d 338, 351 (6th Cir. 2006) ("This Court has

consistently held that, for Section 2254 cases, the Sullivan standard does not apply to claims of

conflict of interest other than multiple concurrent representation; in such cases, including

successive representation, the Strickland standard applies."); Whiting v. Burt, 395 F.3d 602, 619

(6th Cir. 2005) (finding the presumed prejudice standard inapplicable to an attorney's alleged

conflict from representing the petitioner at trial and on appeal); Moss v. United States, 323 F.3d

445, 473 n. 25 (6th Cir. 2003) ("As we have discussed, supra, the Mickens rationale compels our

strong hesitation to apply Sullivan to conflicts of interest cases arising outside of the joint

representation context."). In this case, expanding the presumed prejudice standard of Cuyler v.

Sullivan "beyond its present borders of multiple concurrent representation would result in the

creation of a new rule of law — one that clearly has not been dictated by prior Supreme Court

precedent." Whiting, 395 F.3d at 619.

Here, Petitioner's alleged conflict of interest does not result from multiple concurrent

representation of joint defendants at the same trial. The presumed prejudice rule of Cuyler v.

Sullivan is therefore inapplicable to his conflict of interest claim. Instead, the proper standard is

the Strickland standard, in which Petitioner must demonstrate that he was actually prejudiced by

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counsel's alleged conflict of interest. 

At the evidentiary hearing on Petitioner's ineffective assistance of counsel claim, defense

counsel denied that he wanted to resolve Petitioner's case quickly for personal reasons. He also

denied litigating Petitioner's case off the books. The judgment against Slocombe in the civil

legal malpractice case filed by Sam Field was entered in June, 2000. The trial in Petitioner's

case took place over five years later. The Michigan trial court acknowledged that Slocombe may

have been avoiding creditors, but it found that there was no evidence that shows that it affected

his preparation for trial or provided an incentive to do a poor job for his clients. 

The only evidence Petitioner offers as to actual prejudice is the testimony that his

attorney advised him to plead guilty at the preliminary examination to avoid possible murder

charges. The plea did not occur, and instead, counsel conducted a reasonable investigation into

Petitioner's case, and his performance at trial does not suggest that he was rushing the case

along. This claim was reasonably rejected by the state courts. 

C. Failure to Call Expert Witnesses

Finally, Petitioner asserts that his counsel was ineffective for failing to call defense

experts such as the two discovered by his appellate counsel.

Although "in some cases counsel would be deemed ineffective for failing to consult or

rely on experts, . . . that formulation is sufficiently general that state courts would have wide

latitude in applying it." Richter, 131 S. Ct. at 789. Strickland does not require an equal and

opposite expert from the defense for every prosecution expert. Id. at 791. "There are . . .

'countless ways to provide effective assistance in any given case,'" and it is a rare situation "in

which the 'wide latitude counsel must have in making tactical decisions' will be limited to any

one technique or approach." Id. at 788-89 (quoting Strickland, 466 U.S. at 689).

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The fact that Petitioner's appellate counsel located two potential expert witnesses that

trial counsel did not discover does not mean that trial counsel's investigation was deficient. 

"Counsel was entitled to formulate a strategy that was reasonable at the time and to balance

limited resources in accord with effective trial tactics and strategies." Richter, 131 S.Ct. at 789. 

The record shows that trial counsel did, in fact, vigorously investigate the possibility of using an

expert witness in Petitioner's defense. He talked with local physicians, and he had one of those

physicians "shop" Petitioner's case around. That search did not yield anything supportive of

Petitioner's defense, and no physician was willing to testify in Petitioner's defense. Likewise, the

expert obtained from TASA did not support Petitioner's defense. That expert discounted the

possibility that the complainant's injury was an old one, and therefore he at least indirectly

supported the theory advanced by the prosecution's experts. After the leads proved

unfruitful–and indeed seemed to confirm what the prosecution's experts were saying–it was

reasonable for trial counsel to move on and prepare a defense based on Petitioner's version of

events. See Flick v. Warren, 2012 WL 603761 *3 (6th Cir. Feb. 27, 2012) (Trial counsel was not

ineffective because he decided no to seek an expert on shaken baby syndrome only after he had

contacted three doctors seeking help with the case who gave him unfavorable responses).

Turning to the reports of the defense experts located by Petitioner's appellate counsel, it

was reasonable for the state court to conclude that Petitioner was not prejudiced by the failure to

present these opinions. Dr. Herbst's review of the medical records and images led him to

conclude that there was new blood and old blood, indicating the possibility of a chronic subdural

hematoma. The prosecution responded to this theory in the state courts with a letter written by

Dr. Schermerhorn, who had operated on Cameron. Schermerhorn stated that the differeing

levels of blood density could also represent trapped cerebral spinal fluid. This possibility is also

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mentioned in an article provided by Petitioner and appended to his petition entitled "Intracranial

Hemorrhage and Rebleeding in Suspected Victims of Abusive Head Trauma: Addressing the

Forensic Controversies." That article discusses acute subdural hemorrhages, which do not

appear to be of uniform density on CT imaging, stating that "[l]eakage of cerebro-spinal fluid"

may account for such non-uniformity and that "a hyperacute subdural may also reveal high- and

low-density components that are arranged concentrically or intermixed." Petitioner's Dkt. 1,

Exhibit 8, 64-65. "These mixed-density, hyperacute collections are frequently misinterpreted as

chronic subdural hematoma with rehemorrhage." Id. at 166. Likewise, "an evolving subdural

hemorrhage may demonstrate heterogeneity from one region to another over time within a single

subdural collection." Id. In other words, Dr. Herbst's opinion was not the final word on the

matter, and the prosecutor would have been able to rebut and explain his proposed testimony.

Dr. Rothfeder's letter indicates that the opinions of the prosecutor's experts regarding the

amount of force required to produce the injuries was invalid because it was not supported with

an analysis of the biomechanics involved. First, Petitioner's trial counsel raised this point on

cross-examination of the prosecutor's experts. Moreover, the letter does not take into account

the fact that the opinions of the prosecutor's experts were based on their extensive professional

experience working with injuries. Lastly, the letter ignores Petitioner's evolving story of how the

complainant was injured, belying his credibility. In his final version, Petitioner admitted that he

dropped Cameron on the floor after he became "disgusted" with the vomit. The detective

testified that Petitioner made a tossing motion when he described how he dropped Cameron. 

Cameron also sustained retinal hemorrhages and a fractured clavicle which resulted from a

trauma to his chest. There is no reasonable probability that the outcome of Petitioner's trial

would have been more favorable to him had Rothfeder's opinion been presented to the jury. 

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Neither the trial court nor the Michigan appellate court's decision was contrary to, or

involved an unreasonable application of, clearly established law as determined by the Supreme

Court of the United States. Therefore, this Court denies Petitioner's petition for a writ of habeas

corpus.

V. Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings, which was

amended as of December 1, 2009:

The district court must issue or deny a certificate of appealability when it enters a

final order adverse to the applicant. . . . If the court issues a certificate, the court

must state the specific issue or issues that satisfy the showing required by 28

U.S.C. § 2253(c)(2). If the court denies a certificate, a party may not appeal the

denial but may seek a certificate from the court of appeals under Federal Rule of

Appellate Procedure 22.

Rule 11, Rules Governing Section 2254 Proceedings.

When a district court denies a habeas petition a certificate of appealability should issue

only if the petitioner shows that jurists of reason would find it debatable whether the petitioner

states a valid claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484

(2000). In the present case, for reasons stated in greater detail in the opinion and order denying

the petition, this Court found that Petitioner’s application for a writ of habeas corpus is meritless. 

 The Court will deny petitioner a certificate of appealability with respect to his claims because

reasonable jurists would not find it debatable whether this Court was correct in determining that

the petition should be denied. 

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VI. Conclusion

Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas

corpus. The Court further DENIES a certificate of appealability. 

SO ORDERED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: March 6, 2012

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

March 6, 2012.

S/Denise Goodine 

Case Manager

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