*

The Honorable Adrian G. Duplantier, Senior United States District

Judge for the Eastern District of Louisiana, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0279P (6th Cir.)

File Name: 03a0279p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

STEWART BARNES,

 Petitioner-Appellant,

v.

FRANK ELO, Warden,

Respondent-Appellee.

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No. 01-2026

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 97-60150—George C. Steeh, District Judge.

Argued: March 27, 2003

Decided and Filed: August 8, 2003 

Before: MERRITT and BATCHELDER, Circuit Judges;

DUPLANTIER, Senior District Judge.*

_________________

COUNSEL

ARGUED: Kenneth P. Tableman, FEDERAL PUBLIC

DEFENDERS OFFICE, Grand Rapids, Michigan, for

2 Barnes v. Elo No. 01-2026

Appellant. Raina I. Korbakis, STATE OF MICHIGAN,

DEPARTMENT OF ATTORNEY GENERAL, HABEAS

CORPUS DIVISION, Lansing, Michigan, for Appellee.

ON BRIEF: Kenneth P. Tableman, FEDERAL PUBLIC

DEFENDERS OFFICE, Grand Rapids, Michigan, for

Appellant. Raina I. Korbakis, STATE OF MICHIGAN,

DEPARTMENT OF ATTORNEY GENERAL, HABEAS

CORPUS DIVISION, Lansing, Michigan, for Appellee.

DUPLANTIER, D. J., delivered the opinion of the court, in

which BATCHELDER, J., joined. MERRITT, J. (pp. 14-17),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

DUPLANTIER, Senior DistrictJudge. After an evidentiary

hearing following remand by this court, the district court

dismissed the petition of Stewart Barnes for habeas corpus

relief pursuant to 28 U.S.C. §2254. Barnes appeals, urging

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 convicted of one count each of breaking and

entering with intent to commit criminal sexual conduct,

assault with intent to commit second degree criminal sexual

conduct, and felonious assault. The trial judge sentenced

petitioner to three concurrent sentences: six to fifteen (15)

years on the breaking and entering count, three to five years

on the assault with intent to commit second degree criminal

sexual conduct count, and two and a half to four years on the

felonious assault count.
No. 01-2026 Barnes v. Elo 3

RELEVANT FACTS 

The victim, who was 12 at the time of the offense, testified

that she went to bed at 3:30 a.m. on July 29, 1990; she was

sharing a bed with a younger sister and brother. The victim

awoke when she felt a man kissing the side of her face. She

struggled with her attacker; during the struggle he inflicted

a serious cut on each of her arms. When the victim’s sister

began screaming, the attacker left the room. The victim saw

"[h]im run down the stairs," "limping on one leg"; he "ran

out" the front door. 

Almost immediately, the police developed a composite

"picture" of the assailant from a description by the victim.

Within several days of the attack, the victim advised the

investigating officer that her assailant had a limp. During the

ensuing investigation, the victim viewed a large number of

"mugshots," a photo line-up, and a live line-up; she did not

make any identifications during those sessions. No

photographs of petitioner were among 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 investigating officer established surveillance

of the bus stop. The victim identified the suspect by a hand

signal, and the investigating officer arrested Barnes.

Thereafter, the victim viewed a line-up in which petitioner

participated; the victim identified petitioner as her attacker.

 At trial the parties stipulated that Barnes suffers from postpolio syndrome and wears a brace on his leg. No additional

medical evidence was presented at trial.

In post-conviction proceedings before the state court and

the federal district court, petitioner asserted several 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 medical witnesses to testify concerning his physical

limitations.

PROCEDURAL HISTORY

Petitioner’s attempts in state court to challenge his

convictions are summarized in our prior opinion, Barnes v.

Elo, 231 F.3d 1025, 1027-28 (6th Cir. 2000). In the state

court proceedings, in support of his contention that trial

counsel rendered ineffective assistance by failing to call

medical witnesses to testify concerning his physical

condition, petitioner submitted an affidavit by Dr. William

Waring, his treating physician. In the affidavit Dr. Waring

stated that "he had not been contacted by Barnes’s trial

counsel, that he would have been available to testify, and that

he would have testified that Barnes was physically unable to

run down the stairs and out the door as complainant testified

her assailant had done." Id. at 1027.

After failing to obtain relief in the state courts, petitioner

filed a federal petition for post-conviction relief, asserting

that his trial counsel rendered ineffective assistance and that

he was denied due process as a result of prosecutorial

misconduct. The district judge denied relief on all grounds

and granted petitioner a certificate of appealability limited to

the contention of ineffective assistance of counsel.

On appeal, this court ordered the matter remanded for an

evidentiary hearing on the issue of the competence of trial

counsel, concluding that "[i]t is unclear from the record

whether or to what extent trial counsel investigated Barnes’s

medical condition, and why he failed to contact Dr. Waring.

Absent an evidentiary hearing and clear findings of fact, it is

impossible to determine whether trial counsel’s failure to

investigate and call Dr. Waring was sound trial strategy."

Barnes v. Elo, 231 F.3d at 1029.
No. 01-2026 Barnes v. Elo 5

THE EVIDENTIARY HEARING

Upon remand the district judge conducted an extensive

evidentiary hearing, which included testimony regarding trial

counsel’s failure to call medical witnesses. Marvin Barnett,

Barnes’s trial counsel, testified at length. Despite a diligent

search, Barnett was unable to locate his file concerning the

trial, which had occurred more than nine years before the

hearing. Barnett admitted that he was unfamiliar with the

specifics of post-polio syndrome but stated that he knew

petitioner had a physical disability, walked with braces, and

walked with a "significant gait." Prior to the trial Barnett

reviewed Dr. Waring’s medical records, which petitioner

provided to him. Barnett also testified that prior to trial he

spoke with someone knowledgeable about petitioner’s

medical condition; however, he was unable to recall with

whom he spoke. Barnett did not dispute Dr. Waring’s

testimony that Barnett had not spoken to him.

Barnett testified that he had recommended that the defense

pursue a mis-identification theory of defense. Additionally,

he stated that the medical condition was important and that it

was part of the defense. He testified:

I advised [petitioner] that it would be in his best interest

to allow the parties to stipulate to his medical condition

without calling witnesses to testify as to his medical

condition because, my recollection was, that those same

medical records which indicated he had a pre-existing

medical condition, also indicated that [at] some point in

his life that he was a house painter or something and he

played basketball, not withstanding [sic] the fact that he

had a gait in his walk, that he does move around, so we

were trying to avoid 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 been drawn from his medical

records.

6 Barnes v. Elo No. 01-2026

. . . .

[B]ased on my review of his medical records there

was damaging information in this record that would

support some of the allegations that the complainant

had made. The eleven year old girl had indicated

that the person ran with a limp, and that although

there was no question or need to establish that he

could not run like a normal person, there were things

in his record and his past employment that defeated

our argument, and so it wasn’t as though we simply

ignored medical witnesses but as an experienced

attorney I was trying to give the Defendant the

benefit of everything positive in the record without

the negatives associated with other things that were

in his record.

Barnett opined that the trial judge "certainly understood,

regardless of the specific nature of his condition, that it

certainly mitigated against him running in the matter [sic] as

it appeared and the complainant testified to." Barnett

testified that petitioner agreed to the entry of the stipulation

as to his medical condition in lieu of live testimony.

On cross-examination Barnett provided the following

additional detail regarding his concern about the information

contained in the medical record. 

[B]ut we’ve got an allegation that somebody is climbing

into a house and the idea that somebody at any point was

a house painter concerned me, and I also remember there

being something in there about him being able to play

basketball. Now, I don’t suspect he could have, you

know, pushed the ball down the floor or pushed through

the lane and did a slam dunk, but the mere fact that you

can even play basketball at any point mitigates against

not being able to get down some flights of stairs.
No. 01-2026 Barnes v. Elo 7

Barnett was concerned that a medical witness would testify on

cross-examination that "[petitioner] had some mobility and

that the witness would have to testify that he could move

around quickly if he had to, and that he moved with a limp.

My concern would be that the witness would establish exactly

the opposite that we do not want to establish and undermine

whatever mileage we thought we were going to get out of the

stipulation."

Petitionerintroduced Dr. Waring’s deposition into evidence

at the evidentiary hearing. r. Waring testified that petitioner

had post-polio syndrome, would have had difficulty going

down a stairway, and would have "a very herky jerky sort of

motion going down the stairs." He conceded, however, that

someone who lacked medical knowledge could describe

petitioner’s abnormal movement going down the stairs 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 had done, " Dr.

Waring testified that in making that statement he assumed

that the victim’s reference to "run" meant a fast run. Dr.

Waring testified that petitioner could not "run" with both feet

off the ground at the same time and opined that petitioner

could not physically run "anywhere close to normal gait,

normal gait speed." Dr. Waring testified that petitioner’s

ability to move quickly was impaired and estimated that

petitioner "moved a third or a fourth of normal running speed

with the defects." However, he acknowledged that petitioner

could move faster than his normal walking speed if he so

desired.

At the evidentiary hearing on remand, petitioner testified

that he could not run with both feet off the ground. He stated

that Barnett had advised him that medical witnesses would

testify during the trial. Petitioner also testified that he

exhibited his leg to the state judge during his trial, and that

the trial judge observed his movements in the courtroom.

8 Barnes v. Elo No. 01-2026

The district judge credited Barnett’s testimony that he

concluded (and so advised petitioner) that the best course of

action was to enter into a stipulation concerning petitioner’s

medical condition as well as Barnett’s testimony that "he

believed the trial judge understood that the condition

mitigated against running." We accord considerable

deference to 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 the potential medical testimony

"included damaging information concerning defendant’s

capabilities and was less than compelling." He concluded that

trial’s counsel’s performance was not deficient and that

petitioner sustained no significant prejudice as a result of trial

counsel’s "decisions concerning medical evidence." 

STANDARD OF REVIEW

In reviewing the denial of a petition for post-conviction

relief under 28 U.S.C. §2254, we review the legal conclusions

de novo; findings of fact are reviewed for clear error.

Matthews v. Abramajtys, 319 F.3d 780, 787 (6th Cir. 2003).

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996,

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

which amended 28 U.S.C. §2254, governs this federal habeas

corpus review of a state court conviction.

Title 28 U.S.C. §2254(d)(1)-(2) mandates that claims

adjudicated on the merits in state court proceedings, such as

petitioner’s claim of ineffective assistance of counsel, are

subject to the following standards of review:

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that
No. 01-2026 Barnes v. Elo 9

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(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.

A claim of ineffective assistance of counsel presents a

mixed question of fact and law; we therefore apply the

"unreasonable application" prong of §2254(d)(1). Hunt v.

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

unreasonably applies Supreme Court precedent "if the state

court identifies the correct governing legal rule . . . but

unreasonably applies it to the facts of the particular prisoner’s

case." Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct.

1495, 1521 (2000). However, a federal court may not grant

a writ of habeas corpus "simply because that court concludes

in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously

or incorrectly. Rather, that application must also be

unreasonable." Id. at 411, 120 S.Ct. at 1522.

Typically, in reviewing a state court’s denial of a state

prisoner’s request for post-conviction relief we accord

deference to the state court’s decision.. 28 U.S.C. §2254d.

However, as noted in our prior opinion (Barnes v. Elo, 231

F.3d at 1027-28), in ruling on petitioner’s motion to remand

for an evidentiary hearing and on the merits of the ineffective

assistance claim related to the failure to call medical

witnesses, the Michigan state court of appeals apparently

failed to consider Dr. Waring’s affidavit, which had been filed

by petitioner. Indeed, in considering the merits of that claim

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). In these unusual circumstances, a federal court has

no alternative but to conduct an independent review of the

claim, 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 assistance of

counsel: a defendant seeking relief must demonstrate that

counsel’s performance was deficient and that the deficient

performance prejudiced the defense. With regard to the

performance prong, "the defendant must show that counsel’s

representation fell below an objective standard of

reasonableness." Id. at 687- 88, 104 S.Ct. at 2064. It is well

established that "[j]udicial scrutiny of counsel’s performance

must be highly deferential." Id. at 689, 104 S.Ct. at 2065.

"A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time." Id. There is a strong

presumption that an attorney’s performance "falls within the

wide range of reasonable professional assistance." Id., 104

S.Ct. at 2065. "[T]he defendant must overcome the

presumption that, . . . the challenged action might be

considered to be sound trial strategy." Id. (quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed.2d

83 (1955)).

In order to satisfy the prejudice requirement, "[t]he

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. A reasonable

probability is a probability sufficient to undermine confidence

in the outcome." Strickland v. Washington, 466 U.S. at 694,

104 S.Ct. at 2068. If the defendant makes an insufficient

showing on either component of the ineffective assistance of
No. 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. 

FAILURE TO CALL MEDICAL WITNESSES

Mr. Barnett’s strategic decision to enter into the stipulation

concerning petitioner’s medical condition rather than call

medical witnesses was not deficient. Dr. Waring’s testimony

does not establish that petitioner could not have entered the

house, assaulted the victim, and escaped in the manner

described by the victim. Rather, his testimony simply

negates the possibility that petitioner could "run" normally,

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" normally. The significance of that testimony is

minimal. There was no testimony at the trial that the attacker

"ran" like a normal person. To the contrary, the victim

testified that the man "was limping on one leg" as he "ran"

down the stairs. Dr. Waring also testified that an individual

lacking medical knowledge could describe petitioner’s gait

going down the stairs as a "limp." 

Petitioner focuses too narrowly on the victim’s use of the

word "run." "Run" is an imprecise word subject to numerous

personal interpretations. It is reasonable to conclude that the

young victim’s description of her attacker’s movements

would not be precise. She saw him for only a brief period of

time and under extremely stressful circumstances. 

Additionally, there were sound tactical reasons not to call

Dr. Waring as a witness. The personal history provided to Dr.

Waring indicated that petitioner had played basketball and

that he had previously worked as a house painter.

Petitioner’s past participation in those activities would

undoubtedly have undercut an inference that his physical

limitations would have prevented him from climbing through

a window to enter the victim’s house and fleeing down the

stairs. Evaluating counsel’s trial strategy 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 strategy was unreasonable.

Barnett’s decision to rely on the stipulation rather than call a

medical witness was not deficient.

Having concluded that trial counsel’s failure to call a

medical witness did not constitute deficient performance, we

need not address the prejudice prong of Strickland.

Nevertheless, we note that in any event petitioner was not

prejudiced by the lack of a medical witness. The victim

positively identified petitioner as her attacker. The trial judge

characterized the victim as "a thoughtful, honest, careful

witness" and credited her identification of petitioner. More

specifically, the trial judge, acutely aware of the "overall

dangers inherent in eyewitness identification" noted that the

victim’s description of her assailant "fits the defendant to a

tee [sic]." In characterizing the composite of the assailant

produced by police based on the victim’s description the trial

judge stated "it’s not only a likeness, it is the defendant . . .

There are striking similarities and it’s the closest match of any

composite I’ve ever seen." 

Additionally, the following statement by the trial judge

makes it clear that despite the lack of a medical witness, the

judge was aware of petitioner’s disability and of counsel’s

argument that petitioner was not able to perform the activities

described by the prosecution’s witnesses. 

[I]t’s the defense that’s offered as well and the

suggestion that because of the physical condition of the

defendant it was impossible for him to commit the crime.

But the interesting thing about that is that the

complainant herself in reporting to the police as her

assailant was leaving, she saw the limp. That’s part of

her description as well to the police.

Okay, I mean, he [is] trying to say hey, she’s wrong and

that’s she got the wrong guy, and look, she says I ran.

But it’s not only that she says he ran out of the house
No. 01-2026 Barnes v. Elo 13

after she was finally able to scream. She reports the limp

to the police as part of the description she gives to the

police, 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 brace as well as his ability to move. Petitioner’s

physical disability was obvious. The trial judge, having

observed both the victim and the petitioner, was in the best

position to evaluate the victim’s testimony that her attacker

"ran" down the stairs and determine whether petitioner was

capable of that activity. Expert testimony concerning postpolio syndrome and the resulting limitations on petitioner’s

physical abilities would have shed little light on the relevant

issue, i.e. whether petitioner, in escaping the scene of a

serious crime, could hurriedly negotiate his way down a set of

stairs and exit the house. The medical testimony would also

have included the fact that petitioner had engaged in activities

such as house painting and playing basketball. There is no

reasonable likelihood that such testimony would have created

a reasonable doubt in the mind of the trial judge that

petitioner could not have been the perpetrator because he

could not have "run" from the scene, as described by a

frightened twelve year old girl who was bleeding profusely

from the severe cuts inflicted upon her. There is no

reasonable probability that but for counsel’s failure to call a

medical witness the result of the trial would have been

different.

CONCLUSION

The judgment of the district 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 undertake a reasonable investigation into his client’s case

and background before making strategic legal decisions to

give up a defense. The failure to investigate and present

available evidence about Barnes’ medical condition, which

requires that Barnes wear a leg brace and results in an

abnormal gait, is particularly egregious in this case. The

defense in this case was primarily mistaken identity; and,

given all the evidence, it seems doubtful that Barnes was the

perpetrator.

Barnes suffers from postpolio syndrome, a recentlyidentified condition affecting people after they have recovered

from polio myelitis. The condition results in fatigue and

muscle weakness, both in the parts of the body affected by the

polio and sometimes in other muscle groups as well. As a

result of this condition, Barnes wears a brace on his right leg,

which he was wearing when arrested. The brace keeps his leg

straight and makes him walk in a type of swinging gait that

involves his whole body. To bend his knee, Barnes must

unlock the brace. He describes his condition as not a limp,

but a “paralytic abnormal gait.” Dr. Waring, one of Barnes’

physicians, explained in his deposition for the evidentiary

hearing in federal court that Barnes’ gait is “grossly

abnormal” and he leans excessively from side to side when he

moves. Waring Dep. J.A. at 614-18.

Barnes argues that he was denied effective assistance of

counsel because trial counsel failed adequately to investigate

the medical facts about postpolio syndrome and its effect on

Barnes’ physical abilities. Barnes’ counsel admitted at the

evidentiary hearing that he knew very little about Barnes’

postpolio syndrome and yet he failed to investigate Barnes’

medical records, talk to Barnes’ doctor about the condition or
No. 01-2026 Barnes v. Elo 15

otherwise inform himself generally about the condition and its

specific effect on Barnes. He could not describe postpolio

syndrome; he had not gone over the medical records with a

medical professional who could explain them to him; and he

admitted that he talked very little with Barnes about the effect

of the condition on Barnes’ physical abilities. J.A. at 524-35.

Barnes’ counsel testified that by making the stipulation to the

postpolio syndrome, he believed he was getting the “benefits”

of the condition without dwelling on the “negatives” (as he

called them) of the record. It is doubtful that the judge even

understood what “postpolio syndrome” was. It was never

explained on the record. Without knowing about the

condition and its effects on Barnes, counsel simply could not

make a reasoned strategic decision about whether or how to

use the information at trial.

Counsel failed to obtain an opinion from any medical

professional before trial on whether Barnes was able to

perform the physical acts necessary to break into the house

through a small basement window, the point of entry

according to police testimony. Nor was there any medical

proof about how Barnes was able to run away from the scene

in the manner described by the victim. Without this

knowledge, or at least an opinion, counsel could not make a

competent strategic decision on whether the information

would have been helpful. As a result, the only evidence in the

record concerning the condition is a stipulation that defendant

wears a brace and that he suffers from postpolio syndrome.

There is no attempt to explain the condition or its effects on

Barnes in the record. Although counsel argues that he made

a strategic decision that the stipulation would be the best way

to minimize the “negatives” concerning Barnes’ physical

condition, including discussion of some of Barnes’ past

physical activities, counsel could not have made an informed

strategic decision without making further inquiry into

available information.

Had Barnes’ counsel talked to Dr. Waring, he would have

discovered that it would have been difficult, if not impossible,

16 Barnes v. Elo No. 01-2026

for Barnes physically to commit the crime as described in the

testimony. For example, the victim described the intruder as

“running away” and she testified that she saw him “run”

down the stairs. The victim’s mother also testified that she

didn’t get a look at him or catch him because he was “so

fast.” Additionally, in the initial report given to the police,

the victim did not mention a limp, altered gait or leg brace,

despite the fact that the medical evidence shows that Barnes’

gait is noticeably awkward. If the victim watched her

assailant retreat down the hallway, go down the stairs and out

the door as she says she did, the extremely abnormal gait or

limp should have been obvious and noteworthy. Presentation

of medical evidence that Barnes could not have “run away” as

described or that his gait would have been very distinctive

would have cast doubt on the victim’s testimony.

Investigating this situation thoroughly was essential to a

constitutionally adequate defense. That did not happen.

To establish a violation of the Sixth Amendment right to

effective assistance of counsel, a defendant must demonstrate

that counsel’s representation fell below“an objective standard

of reasonableness” and that the defendant was prejudiced by

the ineffective assistance of counsel. Strickland v.

Washington, 466 U.S. 668, 687 (1984). 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. A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id. at 694. Strickland specifically addresses the

duty to investigate all aspects of a client’s case, stating that

strategic decisions can occur only after counsel makes a

“thorough investigation of law and facts relevant to plausible

options.” Id. at 690. A decision not to investigate cannot be

deemed reasonable it if is uninformed. Id. at 691. In short,

“counsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular

investigations unnecessary.” The holding in Strickland

concerning counsel’s duty to investigate a defendant’s

background was reaffirmed in the Supreme Court’s recent
No. 01-2026 Barnes v. Elo 17

decision in Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003),

where the Court explained that Strickland “defined the

deference owed such strategic judgments in terms of the

adequacy of the investigations supporting those judgments”

and emphasized that the focus in failure to investigate claims

is “whether the investigation supporting counsel’s decision

. . . was itself reasonable.” Id. This kind of investigation

simply did not occur.

The second prong under Strickland requires us to examine

whether counsel’s deficient performance prejudiced

defendant. A 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. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. A

defendant must demonstrate that “counsel’s errors were

serious enough to deprive [him] of a proceeding the result of

which was reliable.” Glenn v. Tate, 71 F.3d 1204, 1210 (6th

Cir. 1995). Barnes was clearly prejudiced by his counsel’s

failure to investigate his medical condition and present

evidence of that condition when it would have likely raised a

reasonable doubt about Barnes’ guilt. For the foregoing

reasons, I respectfully dissent.