* The Hon or abl e Ad ri an G. Duplanti er, Seni or United St ates Distr ict

Judge for the Eastern Distri ct of Louisiana, sitt ing by designati on.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0279P (6th C ir.) File Name: 03a02 79p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
S TEWAR T B ARNES , Petitione r-Appell ant,

v.

F RANK E LO , Warden, Respondent-Appellee. X

- - - -
> , - - N No. 01-2026

Appeal from the United States District Court for the Eastern District of Michigan at Ann Ar bor. No. 97-60150—George C. Steeh, District Judge.

Argued: March 27, 2003
Decided and Filed: August 8, 2003

Befor e: MERRI TT and B ATCHEL DER, Circ

uit Judges ; DUPLANTI

ER, Senior District Judge. *

_________________ COUNSEL

ARGUED: Ken net h P . Ta bl ema n, F EDE RAL P UBLIC DEFENDE RS OFFICE, Gra nd Rapids, Michigan, for 2 Barnes v . Elo No. 01-2026

Appellant

. Raina I. Korbakis, STATE OF MI CHIGAN, DEPARTMENT OF ATTO RN EY GENERAL, HABEAS CORPUS DIVI SION , Lansing, Michiga n, for Appellee. ON BRIE F: Kenneth P. Tableman, FEDE RAL P UBLIC DEFEND ERS OFFI CE , Grand Rapids, Michigan, for Appellan t. Raina I. Kor

bak is, STATE OF MICHI GAN, DEPARTMENT OF A TTO RNE Y GE NER AL, HA BEAS CORPUS DIVISION, Lansing, Michig an, for Appellee.

DUPLA NTIE R, D. J., delivered the opinionof the cour t, in whichBATCHELDER, J., joined. MERRITT, J. (pp. 14-17), delivered a separate dissenting opinion.

_________________ OPINION

_________________ DUPLA NTIE R, Senior Di strict Judge. After an evidentiary hearing following rem and b y this court, the district court d ismissedthe petition of Stewart Barnes for habeas corpu s r elief pursuant to 28 U.S.C. §2254. Barnes appeals, ur gin g that his convictions must be vacated because his trial counsel rendered ineffective assistance with respect to his state court convictions. For the following reasons, we AFFIRM

. Petitioner is a state court prisoner who, following a bench trial, was convi cted of one count each of breaking and enteringwith intent to c ommit crimi nal sexual

conduct, assault with intent to commit second degree criminal sexual conduct, and felo nious assault. The trial judge sentenced petitioner to three concurrent sent en ces: six to fifteen (15) years on th e break ing and entering count, three to five years onthe ass ault wit

h intent to commit second degree criminal sexual conduct count, and two and a half to four years on the feloniou s assault c ount.No. 01-2026 Barnes v . Elo 3

RELEV ANT FACT S

The victim, who was 12 at the time of the offense, testified that she went to bed at 3:30 a.m. on Ju ly 2 9, 1990; she was sharinga bed with a young er sister and brother. The victi m awoke when she felt a man kissing the side of her face. She struggled with her attacker; during the strug gle he inflicted

a serious cut on eac h of her arms. When the victim’s sister began screaming, the attacker lef tthe room. The victi

m saw "[h]im run do wn the stair s," "li mpin g on one leg" ; he "ran out" the front door.

Almost immediate ly, th e p olice de veloped a composite "picture" of

th e a ss ai la nt fr om a d es cr ip ti on by the vi ctim. Within severa l day s of the a

ttack, th e victim

advisedthe investigatingofficer that her assailant had a limp. During the ensuing investigation, the victim viewe d a large number of "mugshots," a photo line-up, and a live line-u p; she did not make any identifications during those sessions. No photographs of petitioner were amon g those shown to the victim by the police, nor

did petitioner participate in the live lineup at that time. About six months after the attack, while complainant

was at a bus stop, she saw petitioner walking in the area and recognized

him as the man who attacked her. On the next day an investig ating officer established surveillance of the bus stop. The victim identified the suspect by a ha nd signal, and the investigating officer a rre s ted Bar

nes. Thereafter, the victim

v iewed a line-up in which petitioner participated; the victim identified petitioner as her attacker. At trial the parties stipulated that Bar nes suff ers fro m postpolio syn dromeand wea

rs a brace on his leg. No additional medical e vidence was pre sented a

t trial.

Inpost-conviction proceedings before the state c o urt and the federal district court, petitioner asserted sever al grounds for habeas relief. In this appeal, he raises only one issue: that his trial counsel rendered ineffective assistance by

failing to 4 Barnes v . Elo No. 01-2026

call any medic al witnesses to testify concer ning hisphysical limitations

. PROCEDURAL HIST ORY

Petitioner’s attemp ts in state co urt to cha

llenge his convictions are summarized i n our p rior opinion, Barnes v. Elo
, 231 F.3d 1025, 1027-28 (6th Cir. 200 0). In the state court proceedings, in support of his contention that trial counsel render

ed ineff ective a ssistance

by f ailing to call medical witnesses to testify conce rning his ph y sical condition, petitioner submitted an affidavit by Dr. William Warin g, h is treating phy sician. In the affidavit Dr. War ing stated that "he had not been contacted by Ba rnes’s trial counsel, that he would have been available to testify , and that he would hav e testifi ed that B arnes w as physically unable to

rundown the stairs and out the door as complainant testified her assailan t had done." Id . at 1027.

After failing to o btain relief in the state courts, petitioner filed a f ederal petition for post-conviction relief, asserting that his trial counsel rendered ineffective assistanc e and that he was denied due process as a result of prosecutor ia l misconduc

t. The district judge deni ed relief on all grounds and granted petitioner a certifica te of appeala bility limited to the conte ntion of ineffec tive assis tance of counsel.

Onappeal, this court ordered the matter r emanded for an evidentiary

hearing on the issue of the compet enc e of trial counsel, concluding t hat "[ i]tis unclear from the record whether or to what extent trial counsel investigated Barnes’s medical condition, and why he fail ed to c ontac t Dr. W aring. Absent an evidentiary

hearing and clear finding s of fact, it i s impossible

to deter mine whet

her tria l cou nsel’s fa

ilure to investig ate and call Dr. War ing was sound trial strategy ." Barnes v . Elo , 231 F.3d at 1029.No. 01-2026 Barnes v . Elo 5

THE EVIDENTI

ARY HEARING
Uponremand the di stri ct jud ge condu cted an extensive evidentiary

hearin g, which included

testimony reg arding trial counsel’ s failure

to call medi cal witne sses. Mar vin Barnett, Barnes’s trial counsel, testified at length. Despite a diligent search, Barn ett was unable to locate his file concerning the trial
, which ha

d occurr ed more t

han nine y

ears be fore th e hearin g. Barnett admitted that he was unfamiliar with the specif ics of p ost-polio syndrome but stated that he knew petitioner had a phy sical d isability, walked with brace s, and walked with a "significant gait." Prior to the tria l Barnet t reviewed Dr. Waring’s medical records, which pe titioner provided to him. Barne tt also testified that prior to trial he spoke with someone know ledgeable about petitioner’s medical condition; however, he wa s unab le to rec all with whomhe spoke. Barnett did not dispute Dr. Waring’s testimony that Bar nett had n ot spoken t

o him.

Barnett testified that he had recommended that the d efense pursue a mis-identification theory of defens e. A dd it io na ll y, he stated that the medical condition was important and that i t was part of the defense. He testified:

Iadvised [petitioner] that it would be in his best interest to allow the parties to stipulate to his medical condition withoutcalli ng wi tnesses to testify as to his medical condition because, my

recollection was, that

those same medical records which indi cated he had a pre-existing medical condition , also indi cated th at [at] some p oint in his life that he was a house painter or something and he played basketba ll, not withstanding [sic] the fact that he had a gait i n his walk, that he do es move a round, so we were trying to a

void all the negligence [sic] inferences that could be drawn from his medical records while at the

same time preserving for the trier of fact all positive inferences that may have be en drawn from his medical record s. 6 Barnes v . Elo No. 01-2026

. . . . [B]a s ed on my review of

his medical records there

was damaging

information in this record that would support some of the allegations that the complainant hadma de. The eleven y ear old girl had indica

te d that the pers on ran wi

th a limp, a

nd that alth ough t here was no question or need to establish that h e could not ru n lik e a norm al pers on, t here we re thi ngs inhis record

and his past employment that defea ted

our argume nt, and so it wasn’t as though we simply ignored medical witn esses but as an experienced attorney I was trying t o g ive the Defendant the benefit of every thing positive in the record without the negatives associated

with other things that were in his record.

Barnett opi ned that the trial judge "certainly understood, regar dless of the specific

nature o f his cond

ition, that it certain ly mitigate d again st

him running in the matter [sic] as it appeared and the complain ant testif ied to." Barnett testified that petitioner

agreed to the entry of the stipulation

as to hi s m ed ic al co nd it io n i n l ie u o f l iv e t es ti mo ny.
Oncross-examination Bar ne tt provided the following additional detail re gardin

g his concern about the information contained in the medical record.
[B]ut we’ve got an allega

tion that someb ody

is climbing into a house and

the idea that somebody a

t any point was

a house painter concerned me, and I also remember there being somet hing i n there about him being able to play basketball. Now, I don’t suspect he could ha ve, yo u know, pushed the ball down the floor or pushed throu gh the lane and

did a slam dunk, butthe mere fact that y ou can ev en pl ay b asketball at an y po int mitiga

tes aga inst not being able to g et down so me fligh ts of stairs.No. 01-2026 Barnes v . Elo 7

Barnett was concerned

that a medical witness would testify on cross-examinationthat "[petitioner] had s ome mobility and th at the witness would have to testify that he coul d mov e around quickly if he had to, and tha t he move d with a limp. My concern would be t

hat the wi tness wou ld establish exactly the opposite that

we do not want to establish and undermine whatever mileag e we thou

ght we w ere go ing to get

out of the stipulation."

Petitioner introdu ced Dr. Waring’s deposition into evidenc e at the evidentiary

hearing. r. Waring testified that petitioner had post-polio syndrome, would have h ad difficulty g oing down a stairway , and would have "a very herky jer ky sort of motion going down the stairs." He conceded, however, that

someone who lacked medical knowledge could de scribe petitioner’s abnormal movement going down the st airs as a "limp." In commenting on the statement in his affidavit that "Barnes was physically

unable to run down the stairs and out the door as complainant testified her assailant h ad done, " Dr. Waring testifie d that in ma king tha t stateme nt h e assumed that the victim’s reference to "run" meant a fast run. Dr. Waring testified that petitioner could not "run" with both feet off th e gr ound at the same time and opined that petitioner

c ould not physically

run "an yw here cl ose to nor

mal gai t, normal gait speed." Dr. Waring testified that petitioner’s ability to move qui ckly

was impai

red and e stim ate d that petitioner "moved a third or a fourth of normal running speed with the defects." However, he acknowledge d that petitioner

co u ld move fas ter than

his norma

l walking speed if he so desired.

At the evidentiary he aring on reman d, pe titioner testified that he could n

ot run with both feet off the ground. He stated that Barnett had advised h im th at medica l witnesse s would testify du r ing the trial. Petitioner also testified that he exhibited his leg to the state judge during his trial, and tha t the trial judge o bserved his moveme

nts in the c ourtroom

. 8 Barnes v . Elo No. 01-2026

The district judge credited Barnett’s testi mony that he concluded

(and so advise d petitione

r) that the best

course of actionwas to enter

into a stipulation concerningpetitioner’s medical condition as well as Bar nett’s testimony that "he believe d the trial judge understood that the condition mitigated against runni ng." We accord consider

able deferenceto the credibility determinations of the district judge. See United States v. Navarro-Camacho
, 186 F.3d 701, 705 (6th Cir. 1999) (citing United States v. Cooke
, 915 F.2d 250, 252 (6th

Cir. 1990)). The district judge concluded that the medical records and thep otential medical testimony "included d amaging information concerning defendant’s capabilities and was l ess t

han compelling." He concluded that trial’ s co unsel’s performance was not deficient a nd that petitioner sustained no significant prejudice as a result of trial counsel’s "dec isions co ncerning medic al evidence."

STANDARD OF REVIEW

Inreviewing the denial of a petition for post-conviction relief under 28 U.S.C. §2254, we review the legal conc lusions de novo; findi ngs of

fact are reviewed for c lear error. Matthews v. Abramajtys , 319 F.3d 780, 787 (6th Cir. 2003).

DISCUSSION

The Antiterrorism and Eff ectiv e Death Penalty

Act of 1996, ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), whichamended

28 U.S.C. §2254, governs this federal habeas corpus review of a state court conviction.

Tit le 28 U.S.C. §2 254(d)( 1)-(2) mandate s that cla ims adjudicated on

the merits in state court

proceedings, such as petitioner’s claim of ineffective assistance of counsel, a re subject to the following standards of review: (d) An application

for a wr it of habe as corpu s on beha lf of a person incustody pursuant to the judg ment of a State court shall not

be gra nted with r

espect t o any claim thatNo. 01-2026 Barnes v . Elo 9

was adjudicated on

the merit s in S tate c ourt p roceed ings unless the adjudica tion of the

claim— (1) resul t ed

in a decision that was contrary to, or involved an unrea sonable a

pplication of, cle arly established

Feder al law, a s determi

ned by the Supre

me Court of the United States; or (2) resulted

in a decision tha t was b ased on an unreasonabl e determination of the facts in light of the evide nce pre sente d in t he St ate cou rt pro ceedin g.
A claim of ineffective assistanc e of counsel presents a mixed question of f

act and law; we therefore apply the "unrea sonable

application" prong of §2254(d)(1)

. Hunt v. Mitchell

, 261 F.3d 575, 580 (6th Cir. 2001). A state court
unreasonably

appl ie s Supreme

Court pre cedent " if the sta te court identifies the c orrect go verning legal rule . . . but

unreasonably

applies it to the facts of

the particular prisoner’s case." Williams v. Taylor
, 529 U.S. 36 2, 407, 120 S.Ct. 1495, 1521 (200 0). How ever, a federal court may not grant
a writ of habeas corpus " simply because that court concludes inits independent judgment that the relevan t sta te-court decisionapplied c learly

est ablis hed fede

ral law e rroneou sly

or incorrectly . Rather, that application must also be unreasonabl e." Id. at 411, 120 S.Ct. at 1522.
Typ ic al ly, in reviewing a state court’s denial of

a state prisoner’s request for post-conviction relief we acc ord deferenceto the state c ourt’s decision.. 28 U.S.C. §2254d. However, as note d in our prior opinion ( Barnes v . Elo , 231 F.3d at 1027-28), in ruling on petitioner’s motion to remand for an evide ntiary hearing and on the

merits of the ineffective assis tance claim re lated to the failur e to call medic a l witnesse s, the Michigan st ate court of appeals appare ntly failed to consider Dr. Waring’s affidavit, which h ad been filed by petitioner. Inde ed, in con sidering the merit s of that c laim the state court relied upon what it perceived to be a failure on the part of petitioner to file the affidavit which he had in fact 10 Barnes v . Elo No. 01-2026

filed. People

v. Barnes , No. 153885 (Mich. Ct. App. March 2, 1995). I

n these un usual cir cumstanc es, a federalcourt has

no alterna

tive but to

c onduct an independent review of the clai m , because there is no foundation in the state court proceedings for

AEDPA deference. See

McKenzie v. Smith
, 326 F.3d 721, 727 (6th Cir. 2003).

In Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two prong test for evaluating claims of ineffective assis tance of

counse l: a defendant seeking relief must demonstrate that counsel’s performance was deficient and tha t the defici ent pe rformance prejudiced the defense. With regard to t h e performance prong, "the defenda nt must show that counsel’s representation

fell b elow an objective standard of reasonableness." Id

. at 6 87- 88, 104 S. Ct . at 206 4. It is well established

that "[j]udicial scrutiny of counse l’s performance must be highly de ferent i al." Id. at 689, 104 S.Ct. at 2065. "A fair ass essment o f attorne y pe rforman ce requ ires tha t
e very effort be made to eliminate the distorting effe cts o f hindsigh t, to reconstruct the circu mstances of counsel’s challenged

conduct, and to evaluate the conduct from

co uns el’s perspective a t the time ." Id. There is a strong presumptionthat an attorney’ s performance "fallswithin the wide range of reasonable pr ofe ss ional assi stance." Id. , 104 S.Ct. at 2065. "[T]he defendant must overcome the presumptionthat, . . . the challenged action might be considered

to be sound trial strat egy." Id . (quo ting Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed.2d 83 (1955)).

I norder to satisfy the pr ejudice requirement, " [t]h e defendant must show t hat ther

e is a re asonable

probabil ity that, but for c ounsel’s

unprofe ssional e

rrors, the result of

the proceeding

would have bee n di ffere nt. A rea sonable probabil ity

is a p ro ba bi li ty s ufficie

nt to undermine confidence inthe outcome." Strickland v. Washington , 466 U.S. at 694, 104 S.C t. at 2068. If the defenda nt makes an insuffici en t showing on either component of the ineffective assistance ofNo. 01-2026 Barnes v . Elo 11

counsel inquiry, it

is not necessary

to examine the remaining prong of the test. Strickland v. Washington , 466 U.S. at 697, 104 S.Ct. 2069.

FAIL URE TO CALL

MEDICAL

WITNESSES

Mr. Barnett’s stra

tegic decision to enter into the stipulation concerning

petitioner’s medical condition rathe r t han call medical witnesse s was not d eficien t. Dr. Waring’s testimony does not estab lish that pe titio n er could not have entered the house, assaulted the victim, and escaped in the manner described b y the vi ctim. Rath er, his te stimony simply negates the possib ility

that peti ti on er co ul d " ru n" no rm al ly, i.e., with both

feet off the ground at the same time, or that he could "run" at a speed approximating that of someone who could "run" n ormally . The sig nificance of tha

t testimony

is minimal. There was no testimony at the trial that the attacker "ran" like a nor

mal person. To the c ontrary , the vict im testified that th e man "was limping on one leg" as he "ran" downthe stairs. Dr. Waring also testified that an individual lackingmedical knowledge coul d descri be petitioner’s g ait going down the s tairs as a "li mp."

Petitioner focuses too narro wly on

the victim’s use of the word "run." "Run" is an imprecise w ord subject

to numerous personal interpretations. It is rea sonable to conclude that the young victim’s d

escripti on of her

attacke r’s move ments would not be precise. She saw him for only a brief period of time and under extremely stre ssful circumstances.

Ad di ti on al ly, th ere we re sound t actica l reason s not to ca

ll Dr. Waring a s a witnes s. The personal history pr ovided to Dr. Waring indicated that petitioner had play ed basketball an d that he h ad previously worke d as a house painter. Petitioner’s past par

ticipation in those a

ctiviti e s would undoub tedl y

have undercut an inference tha t his physical limitations would have prevented him fr om cli mbin g throu gh

a window to enter the victim’s house and fleeing down the stairs. Evaluating coun sel’s trial stra tegy based on

his 12 Barnes v . Elo No. 01-2026

perspective at the time

of trial, as Strickland

requires us to do,

we cannot conclude that counsel’s strat egy was unreasonable. Barnett’s decision to rely on the stipula

tion rathe r than ca ll a medical w

itness wa s not defi cient. Havingconcluded that trial couns el’s fai lure to c all a medical witness di d

notconstitute deficient performance, we need not addr ess the prejudice prong of Strickland

. Nevertheless, we note that in any e v ent pe titioner was not prejudiced

by t he lack o f a medic al wit ness. The victi

m positively identified petitioner as her attacker. The trial judge characterized

the victim

as "a thoughtfu

l, honest , care ful witness" and credited her identification of petitioner. More sp ec if ic al ly, the trial judge, acutely aware of the "overal l dan ge rs inherent in eye

witness identification" noted that the victim’ s descri ption of her assailant "fits the defendant to a tee [sic]." In charac terizin g the composite of the assailant produced by police based on

the victim’s description the trial judge stated " it’s not onl y a likeness, it is the defe ndant . . . There are strikingsimilarities and it’s the closest match of any composit e I’ve ever seen."

Ad di ti on al ly, the following statement by the trial jud g e makes it clear that despite the lack of a medical witness, the judge was aware o f p etitioner’s disability and of counse l’s argument that petitioner was not able to perform the activities described by

the prosecution’s witnesses.
[I]t’s the d efens e that’s offered as well and the sug gestion

that because of the phy sical condition of the defendant it was impossible for him to commit the crime. But the in teres ting t hing a bout that is that the complainant

hers elf in

reporting to the police as her assailant wa s leaving, she saw the limp. That’s part of her description as well to the police. Okay , I me an, he [is] trying to say hey, she’s wr

ong and that’ s she got th e wr ong guy, a nd l ook , sh e sa ys I r an

. But it’s not onl

y th at she sa

ys he ran out of the hou seNo. 01-2026 Barnes v . Elo 13

after she was f inally able to sc ream. She

reports the limp to the police as part of the description she gives to the po lice, a description of which fit the defendant to a T , and she identifies the defendant as the person.

The fact-finder had

the opportunity to observe petitioner’s leg and bra ce as well as his ability to move. Petitioner’s physical disability was obvious

. The trial judge, having observed both the victim and the p etit ioner, w as in the b est position to evalua

te the victim’s testi

mo n y that her attac

ker "ran" down t he s tairs and determine whether petitioner was capable of that a ctivity . Expert te stimony concer ning postpolio syndrome and the resulting limitations on petitioner’s physical abilities would have shed little light on the relevant issue, i.e. whether pet itioner, in escaping the scene of a serious crime, could hurriedly ne gotiate his way down a set of stairs and exit the house. The medical testimony would also have included the fact that petitioner had engag ed in activities suchas house p ainti ng and play ing basketball. There is no

reasona ble likelihood that such testimony would have created

a reasona ble doubt i

n the mind o f the tr

ial j udge that petitioner could not hav e been the perpetrator beca use he could not have "ru

n" fromth e s ce ne , a s d es cr ib ed by a frightened

twelve y ear old g irl who wa s bleedin

g pr ofusely fromthe sev er e cuts inflicted upon her. There is no

reasona ble proba bility that but for counse l’s failu re to ca ll a medical witness the result of the tri al woul d have been differe nt.

CONCLUSIO N

The judgmen

t of the dis t rict court dismissing petitioner’s motion for

post-conviction relief

pursuant to 28 U.S.C. §2254 is AFFIRMED. 14 Barnes v . Elo No. 01-2026

______________ DISSENT

______________ MERRITT, Circuit Judge, dissenting. Counsel has a duty to undert ake a re asonable

investig ation into h

is client’ s case and backgro und be fore m aking s trate gi c legal d ecisions to give up a defense. The failure to investiga te and pres e nt availab le evidence about Barnes’ medica l condition, which requires that Barnes wear a le g brace and results in an abnormal gait, is

parti cular ly eg

regious in this case. The defense in this case was primarily mistake n i denti ty; and, given all the ev idence, it seems doubtful that Barnes was the perpetrator.

Bar nes su ff

er s f ro m p os tp ol io syn dr om e, a r ec en tl yidentified co nd it io n a ff

ec ti ng pe op le af

te r t he y have recovere d fr om polio myelitis. The condition results in fatigue a nd muscleweakne ss, both

in the parts of the body a

ffected by the polio and sometimes in other muscle g roups as well. As a result of this condition, Barnes wears a brace on hi s right leg, whichhe was wearing when ar rested. The brace keeps his leg straight and makes him walk in a type of swi nging gait that in volves his whole b ody . To bend h is knee, B arnes mu st unlock the b race. He describes his condition as not a limp, but a “pa raly tic abnormal gait.” Dr. Warin g, one o f Barnes’ phy sicians, explained

in his depo si tion for the evidentiary hearing in feder

al court that Bar

nes’ ga it i s “ grossly abnorma l” and he leans excessively f

romside to side when he moves. Waring Dep. J.A. at 614-18.

Barnes argues that he was denied ef fective assistance of counsel because trial counsel failed a dequate ly to

investig ate the medical facts about

postpolio syndrome and its effec t on Barne s’ phy sical ab ilities. B arnes’ counsel admitt ed at the evidentiary hea ring tha

t he knew

very little abo

ut Barnes’ postpoliosyndrome and y et he fa i led to inve stigate Barne s’ medical record s, talk

to Barnes’ doctor about the condition orNo. 01-2026 Barnes v . Elo 15

otherwis e inform himself generally abou t the cond ition and it s specific effect on B arne s. He cou ld not desc

ribe post polio syndrome; he had no t gone o ver the medical r ecords wi th a medical professional who could explain them to him; and he admitted that he talked very

little with Barnes about the effect of the conditionon Barnes’ phy sical abilities. J.A. at 524-35. Barne s’ counsel testified that by making

the stipulation to the postpoliosyn

drome, he believe d he was g etting the “bene fits” of the condition wi thout dwelling on the “negatives” (a s he called them) of

the record. It is doubtful that the judge even understood

what “postpolio syndrom e” was. It was ne ver explained on the record. Without knowing about the condition and its ef

fects on Barne s, counsel s imply

could not make a reasoned strategic dec ision about w hether or how to use the in formation at trial

. Counsel failed to obtain an opinion from any medical profess i o nal before

trial on w

hether B arnes w as able t o perform the phy sical ac ts neces sary to break into the ho

use throu gh a smal l ba sement window, the point of entry according to police testimony. No r was there any medical proof about how

Barne s was able

to run away f

romthe scene in the manne

r descr ibed by the victim . Without thi s knowledge, or at least an opinion, counsel could not make a compe tent

strategic decision on whether the information would have been

helpful. As a resu

lt, the only

evidenc e in

the record concerning

the condition is a stipulation that defendant

wears a brace

and that he suffe

rs from po stpoli o synd

rome. There is no attempt to explain the condition or its effects on Barnes inthe rec ord. A ltho ugh counsel argues that he made

a strategic decision that the stipulation would be the best way to minimize the “negatives” concerning B arnes’ phy sical condition, including discussion of som e of B arnes’ past physical activitie s, counsel c ould

not have made an informed

s trateg ic de ci si on wi th ou t m ak in g f ur th er in qu ir y int o available information.

Had Ba rnes’ counsel t

alked toDr. Waring, he would have discovered

that it wou

ld have be en diffic

ult, if not impossible, 16 Barnes v . Elo No. 01-2026

for Barne s phy sically

to commit the crime as described in the te st im on y. For example, the victim described the intruder as “runningaway

” and she

testifie d that she

saw h im “run” d own the stairs. The victim’s mother also testified that she didn’tget a lo ok at him or catch hi m becaus e he was

“so fast.” Additionally, in the i nitial report given to the police, t he victim did not mention a limp, altered gait or leg brace
, despite the fact that the medical evidence shows that Bar nes’ gait is noticeably awkwa

rd. If t he victim watched her assailant retreat down

the hallway, go downthe stairs and out the doo r as she s ays she did, the extremely abnormal gait or limp should have been obvious and noteworthy. Presentation of medical evidence that Barnes could not have “r un aw ay” as described or th at hi s g ai t w ou ld ha ve be en ve ry disti nctive would have ca st doubt on t h e v ic ti m’ s t es ti mo ny. Investigating

this situation thoroughly was essential to a constitutionally adequate def ense. That did not happen.

To estab lish a viol ation of the Six th Am endme nt righ t to effective assistance of counsel, a defendant must demonstr ate that counsel’s representation fell be low “an objective s tandard of reasonableness” and

that the defendant was prejudiced by the ineffective assistance of counsel. Strickland v. Washington
, 466 U.S. 668, 687 (1984). The defenda nt “must show that there is a reasonable p robabil ity that, but for counsel’s unprof

essio nal errors, the result of the proceeding would h a ve been

differe nt. A rea sonable probabilit y is a probabil ity

sufficie nt to undermine confidence in the outcome.” Id

. at 694. Strickland specifically a

ddresses the duty to inv esti gate all aspects of a client’s ca se, stating that strategic decisions can occur on ly after c ounsel ma kes a “thor ough investigation of law and facts releva

nt to plaus ible options.” Id . at 690. A decision not to investig

ate cannot be deemed reasona ble it if is unin formed. Id . at 691. I n short, “counsel has a duty to make r eason ab le investi gations

or to make a reasonable decision that makes particular in v estigations unnecessary .” The holding in Strickland concerning

counsel’ s duty

to invest

iga te a defendant’s background

was reaffirmed in the Suprem e Cou rt’s recentNo. 01-2026 Barnes v . Elo 17

decisionin Wiggi

ns v. Smith , 123 S. Ct. 2527, 2535 (2003), where the Court e

xplained th at Strickland “defined the deferenceowed such strategic judgments in t erms of the adequacy of t he invest

igation s supporti

ng those judgmen ts” and emphasized

that the focus in f

ailure to investig ate cla

ims is “whether the investigation supporting counsel’s decision

. . . was itself reasonab le.” Id . This kind of investigation simply did not occur.

The second prong under Strickland requires us to examine whether counsel’ s deficie

nt perfo rmancepreju diced defenda nt. A defendant must show “that there is a rea sonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasona ble probabil ity i s a probability sufficie ntto undermine confidence inthe outcome.” Strickland , 466 U.S. at 694. A defendant must dem onstrate that “counsel’s errors were serious enough to deprive [him] of a proceeding the result of whichwas reliable.” Glenn v. Tate , 71 F.3d 1204, 1210 (6th Cir. 19 95). Barnes was clearly prejudiced by his c ounsel ’ s failure to investigate his medical c ondition and present evidence of that condition when it would have likely raised a reasona ble d o ubt about Barnes’ guilt. For the fore going reasons, I respe ctfully dissent.