RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0417p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOSEPH STEWART,

Petitioner-Appellant,

v.

HUGH WOLFENBARGER,

Respondent-Appellee.

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No. 04-2419

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 03-75051—Robert H. Cleland, District Judge.

Argued: July 28, 2006

Decided and Filed: November 9, 2006 

Before: BATCHELDER, CLAY, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Matthew E. Liebson, THOMPSON HINE, Cleveland, Ohio, for Appellant. Debra M.

Gagliardi, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ON BRIEF: Matthew E. Liebson, Leslie W. Jacobs, THOMPSON HINE, Cleveland, Ohio, for

Appellant. Brad H. Beaver, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for

Appellee.

_________________

OPINION _________________

CLAY, Circuit Judge. Petitioner Joseph Stewart appeals the October 20, 2004 order of the

United States District Court for the Eastern District of Michigan denying his application for habeas

relief under 28 U.S.C. § 2254. Petitioner is currently incarcerated in Michigan state prison after a

conviction for first degree murder. For the reasons set forth below, we REVERSE the order of the

district court and GRANT the petition for writ of habeas corpus.

1
No. 04-2419 Stewart v. Wolfenbarger Page 2

I. BACKGROUND

A. PROCEDURAL HISTORY

On October 26, 1996, a state grand jury charged Petitioner with first degree murder. On

February 11, 1998, a jury found Petitioner guilty of first degree murder. On March 3, 1998, the state

trial court sentenced Petitioner to life imprisonment without the possibility of parole.

After the trial, Petitioner filed a motion for judgment notwithstanding the verdict or, in the

alternative, a motion for a new trial. People v. Stewart, No. 211361, 2001 WL 1277451, at *1 (Mich

Ct. App. Oct. 23, 2001) (unpublished decision). Petitioner based his motions on ineffective

assistance of counsel due to a conflict of interest and the failure of counsel to call several favorable

witnesses. Id. Without conducting an evidentiary hearing on Petitioner’s claims, the state trial court

denied the motions. Id. Petitioner appealed, and the state court of appeals remanded the case to the

state trial court to conduct an evidentiary hearing as to Petitioner’s claims of ineffective assistance

of counsel. Id. The state trial court conducted an evidentiary hearing, and on July 10, 2001, the

state trial court denied Petitioner’s motion for a new trial. Id. On October 23, 2001, the state court

of appeals affirmed this decision. Id. at *6. The state supreme court denied Petitioner leave to

appeal.

On December 16, 2003, Petitioner filed an application for habeas relief under 28 U.S.C.

§ 2254. Petitioner asserted eight grounds for relief. On October 19, 2004, the district court denied

the application for habeas relief. The district court granted a certificate of appealability as to five

of the eight grounds for relief. This Court affirmed that decision.

B. FACTS

1. Pretrial Events

On April 22, 1996, Terrence Black was shot and killed in Detroit, Michigan, between 11 a.m.

and 12 p.m. On October 26, 1996, a state grand jury charged Roland Johnson (“Johnson”) and

Petitioner with first degree murder in connection with the shooting. The police arrested Johnson,

and he retained Mary Ellen O’Connell (“O’Connell”) as counsel. On January 10, 1997, the state

prosecutor dismissed without prejudice the charge against Johnson. The prosecutor had determined

that the witness against Johnson, Anthony Gardner (“Gardner”), had committed perjury.

On July 21, 1997, the police arrested Petitioner. Stewart, 2001 WL 1277451, at *2 n.3. Prior

to his arrest, Petitioner spoke to an attorney, Juan Mateo (“Mateo”). Petitioner was unable to secure

Mateo as his counsel because he did not pay Mateo’s retainer fee. After Petitioner’s arrest,

Petitioner secured O’Connell as his counsel. Id. Johnson’s family referred O’Connell to Petitioner.

2. The Trial

On February 5, 1998, on the first day of trial, there was a commotion outside of the

courtroom where, in the presence of jurors, friends and relatives of the victim accused Petitioner of

murdering the victim. After the jury was brought in the courtroom, the judge explained that while

some people believed Petitioner murdered the victim, such belief was not evidence. The judge then

asked the jury if any one of them believed that they could not be fair or impartial due to the prior

commotion, and no juror replied in the affirmative.

In its case in chief, the prosecution called Ramone McBurroughs (“McBurroughs”) as a

witness. McBurroughs testified that on April 22, 1996, he was a passenger in a car, a black Chevy

Impala, driven by Petitioner. There were two other persons in the car; “Peb” (a nickname for

Johnson) and a person unknown to McBurroughs. McBurroughs testified that Petitioner was in the
No. 04-2419 Stewart v. Wolfenbarger Page 3

driver seat, Johnson was in the passenger seat, McBurroughs was in the back seat directly behind

Petitioner, and the unknown person was in the back seat directly behind Johnson. McBurroughs

testified that he saw the victim driving a truck, and the two cars stopped next to each other. The cars

were facing the same direction, with the Chevy on the driver side of the pickup. The passenger side

window of the Chevy and the driver side window of the pickup were rolled down. McBurroughs

testified that Petitioner and the victim exchanged words and he then heard gun fire. He testified that

he saw Petitioner holding a gun and pointing the gun across Johnson and at the victim.

McBurroughs testified that he, Petitioner, and the victim were friends, but he was not personally

aware of any problem between Petitioner and the victim.

The prosecution then called Darvin Green (“Green”), the brother of the victim. Green

testified that on April 22, 1996, he was looking out the window of his residence and saw a black

Chevy Impala stop next to the victim’s truck. Green testified that he could not see who was in the

Chevy. He testified that he saw the victim leaning out the window of the truck and laughing. Green

then heard a gun shot, so he ran to get his own gun. Green heard a total of four or five shots. Green

admitted that he did not know who fired the shots.

The prosecution then called Laning Davidson (“Davidson”), a county medical examiner.

Davidson testified that the victim suffered from a single gunshot wound to his flank. He testified

that this wound was the cause of death.

The prosecution then called Lillie Drake (“Drake”), a police officer. Drake testified that she

saw the victim’s truck, which had crashed into a fence. She observed bullet holes in the truck. The

victim, who was unconscious, was removed from the truck. Drake testified that she found shell

casings in the street.

The prosecution then called Robert Simpson (“Simpson”). Simpson testified that he was at

a friend’s house on April 22, 1996, between 11:00 a.m. and 1 p.m. Petitioner and Johnson arrived

at the house. Petitioner asked Simpson if he knew where the victim was. Simpson testified that

Petitioner was excited. He testified that Petitioner stated he was going to kill the victim. Simpson

testified that he saw Petitioner leave and get into a black Chevy Impala. He testified that he saw

McBurroughs also get into the Chevy, as well as Johnson. Simpson admitted that he was a good

friend of the victim.

The prosecution then called Paul Kulsea (“Kulsea”), a police officer and evidence technician.

Kulsea collected evidence with respect to the April 22, 1996 shooting. He observed three bullet

holes in the victim’s truck: one through the side of the bed, one through the roof support directly

behind the door, and one through the door. He also found a handgun in the glove box. The handgun

did not have a round in the chamber, although it did have a full magazine.

The prosecution then called Christopher Vintevoghel (“Vintevoghel”), a police officer. He

testified that he took a statement from McBurroughs without any form of coercion.

The prosecution then called Anthony Woodford (“Woodford”), a police officer. Woodford

testified that, upon arresting Petitioner, Woodford discovered Petitioner had an Ohio identification

card under a different name. Woodford also discovered an application for a Michigan driver’s

license under that same name.

Petitioner then presented his case in chief. He called William Peterson (“Peterson”), a police

officer, as a witness. Peterson testified that he did not speak to Simpson in connection with his

investigation of the shooting.

Petitioner then requested to recall McBurroughs for further impeachment. The state trial

court denied Petitioner’s request.
No. 04-2419 Stewart v. Wolfenbarger Page 4

1

Although counsel asked whether Ziegler was present at work on April 18, 1996, the context indicates that this

was an error.

Petitioner then called Neil Ziegler (“Ziegler”). Ziegler testified that he, Petitioner, William

Foster (“Foster”), and Gerald Hill (“Hill”) drove to Atlanta, Georgia on April 19, 1996. At that

point, the prosecution objected on the ground that the alibi notice did not contain the location

asserted by the alibi; it only contained the names of the alibi witnesses. The state trial court agreed,

but for reasons that are unclear to this Court, the state trial court allowed Petitioner to continue to

question Ziegler. The state trial court, however, disallowed the testimony of the other alibi

witnesses, Foster and Hill. Ziegler testified that the group returned to Michigan between 1 p.m. and

1:30 p.m. on April 22, 1996. Ziegler admitted that he lived at “One Lafayette Place, Apartment

1401,” the address that was used on an application for a Michigan driver’s license submitted by one

“Brian Steven Gresham,” an alias used by Petitioner on an Ohio identification card.

3. The Evidentiary Hearing

As stated above, the state trial court conducted an evidentiary hearing with respect to

Petitioner’s claims of ineffective assistance of counsel.

O’Connell testified at the evidentiary hearing. She testified that she had represented Johnson

in connection with the events of April 22, 1996, but that case was dismissed. She then represented

Petitioner in connection with those same events. She did not see a conflict of interest in representing

Petitioner after representing Johnson on the same matter. O’Connell testified that she explained the

potential conflict to Petitioner, and Petitioner wanted O’Connell to continue as his counsel. When

asked whether she would have called Johnson as a witness at Petitioner’s trial, O’Connell invoked

attorney-client privilege. O’Connell did admit that she spoke with Johnson about testifying at

Petitioner’s trial. When asked whether she considered focusing on Johnson as a suspect as part of

Petitioner’s defense strategy, O’Connell invoked attorney-client privilege. 

With respect to Mateo, O’Connell testified that she originally intended to call Mateo as a

witness, but she then decided that his testimony would not have been helpful. While Mateo had

indicated that he had a record of a statement taken from a person who fit the description of

McBurroughs, where such person had recanted a statement made to the police, Mateo failed to

produce any such record. Moreover, Mateo stated that he was unsure whether he could even identify

the person from whom he had taken the statement.

Petitioner testified at the evidentiary hearing. Petitioner claimed that O’Connell never

mentioned any potential conflict of interest. Petitioner testified that he wanted to call Johnson as

a witness and question him as a suspect in the shooting. O’Connell stated that she could not

question Johnson in that manner.

Petitioner testified that he wanted to subpoena Delshawn Williams (“Williams”) to testify

at his trial. Petitioner testified that Williams resided at the house at which Simpson alleged

Petitioner to have made the death threat against the victim.

Petitioner testified that he wanted to subpoena Mateo to testify at his trial. Petitioner testified

that McBurroughs, in Mateo’s presence, had recanted the statement he made to the police. Petitioner

testified that O’Connell wanted to know whether McBurroughs’ recantation implicated Johnson.

James Dyckman, the human resources manager at Ziegler’s place of employment, testified

at the evidentiary hearing. He testified that Ziegler was not at work on April 19, 1996.1
No. 04-2419 Stewart v. Wolfenbarger Page 5

Hill testified at the evidentiary hearing. Hill testified that on April 19, 1996, he, Petitioner,

Ziegler, and Foster drove to Atlanta, Georgia to go to a party. He testified that the group drove back

and returned to Michigan roughly after 2 p.m. on April 22, 1996.

Foster testified at the evidentiary hearing. Foster’s testimony was consistent with Hill’s

testimony.

Williams testified at the evidentiary hearing. He testified that on April 22, 1996, he was

home all day with a sprained ankle. He testified that, contrary to Simpson’s testimony at trial,

Simpson was not at his house on that date. He testified that, contrary to Simpson’s testimony at trial,

Petitioner was not at his house on that date. Williams testified that he did not testify at trial because

he knew both Petitioner and the victim and he did not want to get involved. Williams testified that

he was never subpoenaed to testify at Petitioner’s trial. Williams testified that while he made a

statement to an unknown male attorney, he was never contacted by Petitioner’s trial counsel,

O’Connell.

Mateo testified at the evidentiary hearing. He testified that Petitioner approached him about

representing Petitioner in a murder case. He testified that at one of the meetings with Petitioner, a

young African American man in a wheelchair was also present. He did not know that man’s name.

Mateo interviewed that man, and he testified that he recalled that the man offered some form of

exculpatory evidence, although he could not recall exactly what that evidence was. Mateo testified

that O’Connell contacted him about testifying with respect to the man who provided the exculpatory

information, and Mateo responded that he did not recall who the man was, and he could only offer

hearsay testimony as to what that man said.

II. DISCUSSION

A. STANDARD OF REVIEW

When reviewing the decision of a district court on a petition for habeas relief, this Court

reviews the legal conclusions de novo and the factual conclusions for clear error. Stuart v. Wilson, 442 F.3d 506, 514 (6th Cir. 2006) (citation omitted). That said, because Petitioner’s habeas

application was filed after the effective date of AEDPA, AEDPA applies. Id. (citation omitted).

AEDPA requires the federal courts to give substantial deference to the decisions of state courts.

Under the strictures of AEDPA, “the federal courts may not grant habeas relief for a state prisoner

unless the state court adjudication of his claim ‘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.’” Id. at 514-15 (quoting 28 U.S.C. § 2254(d)(1)).

A state court decision is contrary to clearly established federal law “if the state court arrives

at a conclusion opposite to that reached by this Court on a question of law or if the state court

decides a case differently than this Court has on a set of materially indistinguishable facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves an unreasonable

application of clearly established federal law “if the state court identifies the correct governing legal

principle from this Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” Id. “[T]o be found an ‘unreasonable application of . . . clearly established Federal

law,’ the state-court decision must be ‘objectively unreasonable’ and not simply erroneous or

incorrect.” Johnson v. Luoma, 425 F.3d 318, 324 (6th Cir. 2005) (quoting Williams, 529 U.S. at

409-11). “A legal doctrine is not ‘clearly established Federal law, as determined by the Supreme

Court’ unless it is based on ‘holdings, as opposed to the dicta, of the Court’s decisions as of the time

of the relevant state-court decision.’” Jones v. Jamrog, 414 F.3d 585, 591 (6th Cir. 2005) (quoting

Williams, 529 U.S. at 412).
No. 04-2419 Stewart v. Wolfenbarger Page 6

B. THE TRIAL COURT’S REFUSAL TO ALLOW PETITIONER TO RECALL

McBURROUGHS

Petitioner claims that the state trial court’s refusal to allow Petitioner to recall and reexamine

McBurroughs violated Petitioner’s confrontation right. We disagree.

The Confrontation Clause of the Sixth Amendment bestows upon the criminal defendant the

right to confront the witnesses against him, and the opportunity to cross-examine such witnesses:

“Indeed, [t]he main and essential purpose of confrontation is to secure for the opponent the

opportunity of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (alteration

in the original) (internal quotation marks and citation omitted). That said, the criminal defendant’s

right to cross-examine witnesses is not limitless:

[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned

to impose reasonable limits on such cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, the witness’

safety, or interrogation that is repetitive or only marginally relevant. And as we

observed earlier this Term, “the Confrontation Clause guarantees an opportunity for

effective cross-examination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.”

Id. at 679 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). Thus, a state trial

court has discretion to limit cross-examination. Moreover, “[w]here it is merely the extent of crossexamination that is limited, the trial judge retains a much wider latitude of discretion.” Dorsey v.

Parke, 872 F.2d 163, 167 (6th Cir. 1989).

Where the trial court limits the extent of cross-examination, the inquiry for the reviewing

court is “whether the jury had enough information, despite the limits placed on otherwise permitted

cross-examination, to assess the defense theory.” Id. This Court has emphasized the jury’s access

to the relevant facts under this inquiry:

[T]his Court has recognized that the bounds of the trial court’s discretion are

exceeded when the defense is not allowed to plac[e] before the jury facts from which

bias, prejudice or lack of credibility of a prosecution witness might be inferred[.]

This well-settled principle protects the defendant’s right on cross-examination to

develop facts which might undermine a government witness’s credibility.

Id. (second and third alterations in the original) (internal quotation marks and citation omitted).

Conversely, this Court has found “no authority for finding a constitutional violation where crossexamination of a key government witness was only partially limited and where the questioning that

was barred was not aimed at eliciting any additional facts.” Id. at 166.

If the jury did not have adequate information, such that “there is indeed a denial or

significant diminution of cross-examination that implicates the Confrontation Clause, the Court

applies a balancing test, weighing the violation against the competing interests at stake.” Boggs v.

Collins, 226 F.3d 728, 739 (6th Cir. 2000) (citation omitted).

We initially note that the inquiry is not whether the state trial court abused its discretion in

disallowing Petitioner from recalling McBurroughs; the inquiry is whether the state court of appeals’

decision that the state trial court did not abuse its discretion in such action was contrary to or an

unreasonable application of federal law. Here, the state court of appeals identified the correct law,

so the issue is whether the state court of appeals’ decision was an unreasonable application of federal

law, which is to say that the decision was more than simply erroneous or incorrect.
No. 04-2419 Stewart v. Wolfenbarger Page 7

2

The weakness of the impeachment evidence may have been evident from the fact that Petitioner did not raise

any of the impeachment points in the closing argument.

In this case, the prosecution called McBurroughs as its first witness. The state trial court

stated that it would cancel the subpoena for the witness, so that the prosecution and Petitioner would

have to ask any and all questions during that appearance by McBurroughs. The state trial court

based its decision on the fact that McBurroughs was a paraplegic and wheelchair-bound. During

the Petitioner’s case in chief, Petitioner requested to recall McBurroughs to the witness stand, and

the state trial court denied the request.

Petitioner argues that because the state trial court did not allow Petitioner to recall

McBurroughs, Petitioner was unable to cross-examine McBurroughs with several points that arose

through other witness testimony, namely: (1) the angle of the bullet entry wound; (2) the testimony

of Green and several police officers that suggest that the shooting took place while both cars were

in motion; and (3) the testimony of a police officer who stated that he did not threaten McBurroughs.

We find that none of these areas of inquiry would have yielded significant impeachment

evidence against McBurroughs’ trial testimony. With respect to (1), McBurroughs’ testimony is not

inconsistent with the angle of the bullet entry wound, or at least there is nothing in the record that

indicates such an inconsistency. With respect to (2), McBurroughs’ testimony was that Petitioner

pulled up next to the victim’s truck, fired several shots at the victim, and the two vehicles then drove

off simultaneously. The testimony of Green and several police officers indicates that the shooting

occurred while both cars were in motion. This simply is not significant impeachment evidence.

With respect to (3), the police officer who questioned McBurroughs testified that he did not threaten

to charge McBurroughs with the murder if McBurroughs did not make a statement, whereas

McBurroughs testified that the police officer did make such a threat. This likewise is not significant

impeachment evidence.

Moreover, even if we assume that this information was not insignificant impeachment

evidence, the evidence was already before the jury. As stated, supra, the key inquiry is “whether

the jury had enough information, despite the limits placed on otherwise permitted cross-examination,

to assess the defense theory.” Dorsey, 872 F.2d at 167. This Court has found “no authority for

finding a constitutional violation where cross-examination of a key government witness was only

partially limited and where the questioning that was barred was not aimed at eliciting any additional

facts.” Id. at 166. Here, the information that Petitioner wished to use against McBurroughs if

McBurroughs were recalled was already before the jury, in the form of direct testimony from the

prosecution’s witnesses. Petitioner does not assert that he wished to recall McBurroughs to elicit

additional facts or information. In such a case, Petitioner has not stated a constitutional violation:

“When the jury hears on direct examination the evidence a petitioner feels counsel should have

developed in cross-examination, the petitioner did not suffer prejudice.” Ross v. United States, 339

F.3d 483, 495 (6th Cir. 2003) (citation omitted). Certainly, an added benefit to recalling

McBurroughs to cross-examine him with respect to the testimony of the prosecution’s witnesses

would be to observe the demeanor of McBurroughs; this Court, however, has explicitly ruled that

the trial court’s deprivation of such benefit does not amount to a violation of the Confrontation

Clause. Dorsey, 872 F.2d at 167.

The key point is that the information which Petitioner wanted to use to impeach

McBurroughs was already known to the jury. In such a case, Petitioner could argue in closing

argument that McBurroughs’ testimony was faulty because it was impeached by the testimony of

other witnesses.2

 This is in contrast to cases such as Van Arsdall, where the impeachment evidence

precluded by the limitation on cross-examination, that the prosecution agreed to drop a criminal

charge against the witness after the witness agreed to testify, was completely unknown to the jury.
No. 04-2419 Stewart v. Wolfenbarger Page 8

475 U.S. at 676. See also Dorsey, 872 F.2d at 167 (“But Davis, Alford, and Garrett involve trial

court rulings that barred defense counsel from adding to the fund of concrete information . . . with

which the jury could assess a government witness’s credibility. We decline to extend the

constitutional guarantee beyond the scope of these rulings, to encompass questioning that will do

nothing more than expose the demeanor of a government witness, already on the stand, while he or

she is subjected to questions that probe his credibility.”) (emphasis supplied). In such a case, the

state court of appeals’ decision finding no abuse of discretion on the part of the state trial court was

not incorrect, let alone unreasonable.

C. THE OUTBURST AT TRIAL BY FRIENDS AND FAMILY OF THE VICTIM

Petitioner claims that the state trial court failed to fully inquire as to the impartiality of the

jury after an outburst by the victim’s family and friends, so that he was denied a fair trial. We

disagree.

As a threshold matter, Respondent argues that Petitioner presented this issue to the state

court solely as a state claim, as opposed to a federal constitutional or statutory claim. Respondent

argues that Petitioner has therefore failed to exhaust this issue as presented to this Court. A review

of the record, however, reveals that Petitioner adequately briefed this claim in the state court of

appeals. Nevertheless, Petitioner’s claim lacks merit.

The Sixth Amendment guarantees the criminal defendant a right to a fair trial by an impartial

jury. Williams v. Bagley, 380 F.3d 932, 943 (6th Cir. 2004) (citing Morgan v. Illinois, 504 U.S. 719,

726-27 (1992)). Certain disruptions during trial may affect the impartiality of the jury. In such

cases, the inquiry is “whether there has been an impingement upon the right of [the defendant] to

be tried before a fair and impartial jury.” United States v. Black, 369 F.3d 1171, 1177 (10th Cir.

2004) (internal quotations and citation omitted).

On February 5, 1998, on the first day of trial, there was a commotion outside of the

courtroom where friends and relatives of the victim accused Petitioner of murdering the victim, in

the presence of jurors. After the jury was brought in the courtroom, the judge explained that while

some people believed Petitioner murdered the victim, such belief was not evidence. The judge then

asked the jury if any one of them believed that they could not be fair or impartial due to the prior

commotion, and no juror replied in the affirmative.

The state court of appeals found that the state trial court did not abuse its discretion in

denying Petitioner’s motion for a mistrial:

The record indicates that the trial court inquired of the members of the jury panel

whether the disturbance had affected their ability to be fair and impartial. Further,

the trial court instructed the jurors to disregard the outburst and to render its verdict

on the basis of the evidence presented at the trial. Under the circumstances, we

conclude that the trial court did not abuse its discretion when it determined that the

jury could render an impartial verdict in the case and, therefore, denied defendant’s

motion for a mistrial.

Stewart, 2001 WL 1277451, at *6. We hold that the state court of appeals’ decision was not

contrary to or an unreasonable application of federal law.

In examining the record, we agree with the state court of appeals that the state trial court told

the jurors that any comments made in the disturbance by the friends and family of the victim was

not evidence and should not be considered evidence. In the same vein, the state trial court expressed

that even though some persons felt that Petitioner was guilty, this was not evidence. The state trial

court also expressed that the fact that some persons felt that Petitioner was guilty was not unusual
No. 04-2419 Stewart v. Wolfenbarger Page 9

or surprising. The state trial court finally asked the jurors if there were any of them who felt that

s/he could not be impartial, and no one responded. Under such facts, we find that the state trial court

adequately inquired as to the impartiality of the jury after the disturbance, so Petitioner suffered no

violation of his constitutional right to a fair trial.

D. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner claims that his counsel’s performance was deficient in four respects, and that he

was prejudiced by these errors. For a claim of ineffective assistance of counsel, the petitioner must

ordinarily prove two components: (1) counsel’s performance was deficient; and (2) prejudice, which

means that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694

(1984).

We will first address those claims of counsel error that we conclude do not constitute

deficient performance under the first prong of the Strickland test. Petitioner’s primary claim is that

O’Connell provided ineffective assistance of counsel because she had a conflict of interest from her

prior representation of Johnson. Petitioner argues that this Court must presume prejudice and grant

habeas relief due to this conflict of interest. We disagree.

In certain instances a court may presume prejudice to the petitioner. “[P]rejudice is

presumed when counsel is burdened by an actual conflict of interest.” Id. at 692 (citing Cuyler v.

Sullivan, 446 U.S. 335, 345-50 (1980)). In order to demonstrate such actual conflict of interest, the

petitioner must show “that counsel ‘actively represented conflicting interests’ and that ‘an actual

conflict of interest adversely affected his lawyer’s performance.’” Id. (quoting Sullivan, 446 U.S.

at 350, 348).

In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court found that the presumed

prejudice standard of Sullivan was clearly established only in the situation of a conflict of interest

due to multiple concurrent representation. Id. at 175. The Supreme Court explicitly left open the

question of whether the Sullivan standard applied to a conflict of interest due to successive

representation. Id. at 176.

This Court has consistently held that, for § 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. See Gillard v. Mitchell, 445

F.3d 883, 891 (6th Cir. 2006) (successive representation); Whiting v. Burt, 395 F.3d 602, 619-20

(6th Cir. 2005) (same counsel for trial and direct appeal); Lordi v. Ishee, 384 F.3d 189, 193 (6th Cir.

2005) (successive representation); Smith v. Hofbauer, 312 F.3d 809, 818 (6th Cir. 2002) (counsel

was charged with a crime in the same county as the petitioner). Thus, the initial issue is whether the

instant case involves a conflict of interest based on multiple concurrent representation or on some

other ground.

This case does not involve multiple concurrent representation. O’Connell represented

Johnson when he was arrested and charged with first degree murder. The prosecution then

dismissed the case against Johnson. Seven months later, Petitioner retained O’Connell as counsel

in connection with the same crime. In our view, O’Connell’s representation of Johnson ended well

before her representation with Petitioner began. Therefore, this is not a case of multiple concurrent

representation, so the Strickland standard applies.

Petitioner argues that this Court’s decision in Moss v. United States, 323 F.3d 445 (6th Cir.

2003), dictates that the Sullivan standard applies in the instant case. We disagree. In that case, a

§ 2255 case, the attorney Murphy represented the defendant Moss in pre-indictment proceedings but

represented Moss’ co-defendant Kohn at all post-indictment proceedings, including trial. Id. at 459.
No. 04-2419 Stewart v. Wolfenbarger Page 10

3

With respect to the second purpose, Petitioner submitted an affidavit from Johnson that stated the underlying

facts. Although Johnson purportedly swore out this affidavit, Johnson did not appear at the evidentiary hearing

conducted by the state trial court, even though he was subpoenaed. The significance of these facts will be explained

infra.

The defendants Moss and Kohn were tried together and collaborated on a defense. Id. at 462.

Moreover, the defendant Moss paid for the defendant Kohn’s legal services. Id. at 463. This Court

found that those facts amounted to an atypical form of successive representation where the Sullivan

standard was appropriate. Id.

Petitioner’s reliance on Moss is misplaced for three reasons. First, the instant case is

factually distinguishable. Johnson and Petitioner were not tried together, nor did they collaborate

on a defense, elements that are analogous to a situation of multiple concurrent representation.

Furthermore, Johnson did not pay for Petitioner’s legal fees, or vice versa. Second, Moss was a

§ 2255 case. Such cases differ from § 2254 cases because a federal court is not constrained by the

use of only “clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254. Instead, in a § 2255 case, a federal court asks whether the petitioner’s

sentence “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C.

§ 2255. Thus, a federal court has more leeway in § 2255 cases than § 2254 cases, because it is not

constrained to use only clearly established federal law, as determined by the holdings of Supreme

Court decisions. There is no Supreme Court case that holds that the Sullivan standard applies to

cases of closely related successive representation. Thus, application of the Sullivan standard is

inappropriate in such a case under § 2254. Third, this Court has held under almost identical factual

circumstances that the case was one of successive representation. In Gillard, the attorney Martinez

represented William Gillard in connection with a double murder. 445 F.3d at 890. The charges

against William Gillard were dismissed. Id. at 891. The attorney Martinez then represented the

petitioner, John Gillard, the brother of William. Id. Under such factual circumstances, this Court

found that the attorney Martinez engaged in successive representation that was reviewed under the

Strickland standard. Id. The instant case is factually indistinguishable, so that the Strickland

standard is appropriate.

Under Strickland, the first element is whether O’Connell’s performance was objectively

deficient. Petitioner claims that O’Connell should have called Johnson as a witness at Petitioner’s

trial. Petitioner claims Johnson would have served two purposes at trial: (1) to deflect suspicion

from Petitioner to Johnson as the murderer; and (2) to testify in favor of Petitioner, by stating that

Johnson was not present with McBurroughs on April 22, 1996, that Johnson did not witness a

shooting on April 22, 1996, that McBurroughs told Johnson several days after the shooting that

McBurroughs did not know who shot the victim and that McBurroughs was not present when the

victim was shot, and that O’Connell refused to allow Johnson to testify because of a conflict of

interest.3

With respect to the first purpose, we find that O’Connell’s performance was not objectively

deficient for her failure to call Johnson so that Johnson could implicate himself or otherwise cast

suspicion on himself when on the witness stand. There is no viable reason why Johnson would

forgo his Fifth Amendment right against self-incrimination. We agree with the district court that

if Johnson had been called by conflict-free counsel, Johnson would have most likely invoked his

right against self-incrimination if asked questions whose answers would cast suspicion on Johnson.

The Second Circuit addressed a similar issue in Eisemann v. Herbert, 401 F.3d 102 (2d Cir.

2005). In that case, a father and son were charged with various counts of sexual abuse. Id. at 105.

The father was charged with abusing a girl and her twin brother; the son was charged with abusing

only the girl. Id. The father and son hired the same attorney, Holtman. Id. In 1985, the father pled

guilty to the charges. Id. The son went to trial, represented by Holtman and another attorney. Id.
No. 04-2419 Stewart v. Wolfenbarger Page 11

4

In Michigan, this is also known as a Ginther hearing. See People v. Ginther, 212 N.W.2d 922 (Mich. 1973).

The jury found the son guilty on several charges. Id. On federal habeas review, the son argued that

his counsel provided ineffective assistance, as a conflict of interest prevented counsel from calling

the father to testify that he had committed the acts of which the son was accused. Id. at 108. The

Second Circuit disagreed. The court first found that what the father would have testified to, had he

been called as a witness, was unknown. Id. at 109. Moreover, if the father was asked about his own

culpability as to the charges against the son, the father “would have had the protection of the

privilege against self-incrimination, and nothing in the record suggests that he was willing to waive

his privilege.” Id. See also Fletcher v. Mann, No. 97-2137, 1998 WL 743744, at *4 (2d Cir. Oct.

21, 1998) (unpublished table opinion) (finding no ineffective assistance of counsel where the

witnesses whom counsel failed to subpoena, who counsel also represented, “were virtually certain”

to invoke the right against self-incrimination).

Likewise, it is highly speculative that Johnson would have incriminated himself or otherwise

cast suspicion on himself, while at the same time decreasing the suspicion on Petitioner, if he

testified at Petitioner’s trial. Moreover, there is no reason to believe that Johnson would not have

invoked his right against self-incrimination. We therefore hold that O’Connell’s failure to call

Johnson so that Johnson could deflect suspicion from Petitioner to Johnson was not objectively

deficient performance.

The second purpose of Johnson’s testimony, to impeach McBurroughs’ testimony, is

likewise unavailing. We first note that the only evidence that Johnson would have impeached

McBurroughs’ testimony is an affidavit purportedly from Johnson. This affidavit essentially asserts

three points: (1) Johnson was not with McBurroughs on April 22, 1996; (2) Johnson did not witness

a shooting on April 22, 1996; and (3) McBurroughs told Johnson several days after the shooting that

McBurroughs did not know who shot the victim and that he was not present when the victim was

shot. When conducting the evidentiary hearing with respect to Petitioner’s claims of ineffective

assistance of counsel, the state trial court specifically excluded this very same affidavit as

inadmissible hearsay. Under Michigan law, the Michigan rules of evidence apply to all state court

proceedings with only a few, enumerated exceptions, not one of which is an evidentiary hearing for

a claim of ineffective assistance of counsel.4

 Mich. R. Evid. 1101. The state trial court thus did not

consider the affidavit in its decision on Petitioner’s ineffective assistance of counsel claim with

respect to this purpose. Instead, the state trial court relied on the fact that Johnson did not testify at

the evidentiary hearing even though he was subpoenaed. Because Johnson did not testify, the state

trial court did not know “what Mr. Johnson would or would not have testified to.” (J.A. at 909.)

Likewise, the state court of appeals did not rely on the inadmissible affidavit in its decision on

Petitioner’s ineffective assistance of counsel claim. Like the state trial court, the state court of

appeals noted that “there is no way of knowing what Johnson’s testimony might have been since he

did not appear for the hearing.” Stewart, 2001 WL 1277451, at *2. Based on this fact, the state

court of appeals found “that [Petitioner] has failed to meet his burden of demonstrating ineffective

assistance of counsel. [Petitioner] has failed to show that Johnson would have offered any

exculpatory testimony on his behalf at trial.” Id.

The decisions of the state trial court and the state court of appeals on this point were not

contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C.

§ 2254(d)(1). Petitioner points to no Supreme Court decision that holds that a state court must

consider inadmissible hearsay evidence when deciding a claim of ineffective assistance of counsel.

The state courts’ failure to consider the inadmissible hearsay affidavit of Johnson is simply not a

basis for federal habeas relief. The conclusion of both the state trial court and the state court of

appeals, that there was no proper evidence to support Petitioner’s claim that Johnson would have

impeached McBurroughs had O’Connell called Johnson as a witness at trial, was not contrary to or
No. 04-2419 Stewart v. Wolfenbarger Page 12

an unreasonable application of clearly established law. Petitioner’s claim of ineffective assistance

of counsel with respect to this second purpose of Johnson’s testimony therefore fails.

Petitioner next claims that O’Connell provided ineffective assistance of counsel due to her

failure to call Mateo as a witness at Petitioner’s trial. Here again, we conclude that Petitioner cannot

demonstrate that his counsel’s performance was deficient under the first Strickland prong.

Under Strickland, trial counsel has a duty to investigate his case:

Strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness

case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to

counsel’s judgments.

Id. at 690-91.

In preparation for trial, Petitioner asked O’Connell to contact Juan Mateo, an attorney whom

Petitioner had contacted before Petitioner was arrested. During one of his visits with Mateo,

Petitioner allegedly brought McBurroughs with him, and McBurroughs allegedly made an

exculpatory statement. O’Connell did in fact contact Mateo to inquire as to whether Mateo should

be called as a witness. Mateo stated that he was unsure even if he could identify the person who

made the exculpatory statement as McBurroughs. Furthermore, Mateo did not have any written or

recorded record of his conversation with the person who made the exculpatory statement. Finally,

Mateo did not recall the exact contents of the conversation with the person who made the

exculpatory statement. Specifically, Mateo testified at the evidentiary hearing that “[a]ll I recall

from this witness is that he offered evidence that seemed to be exculpatory of Mr. Stewart. In other

words, it was evidence that either placed Mr. Stewart at a different location as an alibi witness or

absolved Mr. Stewart being involved in the murder which was the underlying matter.” (J.A. at 846.)

Petitioner believes that O’Connell’s failure to call Mateo as a witness constituted ineffective

assistance of counsel. This argument lacks merit.

We initially note two points of agreement with Petitioner. First, we agree that the fact that

Mateo was unsure whether he could identify the person who made the exculpatory statement as

McBurroughs is not an adequate basis to not call Mateo as a witness. O’Connell could have shown

a picture of McBurroughs to Mateo to see if he could have identified McBurroughs as said person.

Moreover, Mateo testified that he remembered that said person was a young African American male

in a wheelchair, which is a description consistent with McBurroughs’ description. In short,

O’Connell could have conducted further investigation into whether Mateo could in fact identify

McBurroughs as the person who made the exculpatory statement. Second, we also agree that

Mateo’s testimony would not have been inadmissible hearsay, because the statements would have

been used not for the truth of the matter asserted, but to impeach McBurroughs’ trial testimony.

We find, however, that O’Connell’s failure to call Mateo as a witness was not objectively

deficient performance because Mateo could not provide adequate testimony as to what this person,

purportedly McBurroughs, said to Mateo. Although Mateo had a vague recollection that the

statement was exculpatory, Mateo was not sure in what way the statement was exculpatory. Mateo

testified at the evidentiary hearing that he had a recollection that the person was an alibi witness,

although he was not sure; in contrast, Petitioner claims that McBurroughs recanted a police
No. 04-2419 Stewart v. Wolfenbarger Page 13

5

While Petitioner claims that such exclusion was an abuse of discretion, this raises an issue separate from

whether O’Connell provided ineffective assistance of counsel.

statement. In our view, Mateo’s vague testimony about an exculpatory statement would have been

subject to appropriately severe cross-examination from the prosecution, which would have

demonstrated that in fact Mateo did not remember what was said at that meeting. Under such

circumstances, there was no legitimate purpose Mateo’s testimony could have served, so that

O’Connell’s failure to call Mateo was not objectively deficient performance.

Petitioner raises two further claims of ineffective assistance of counsel: that O’Connell failed

to file a proper notice of alibi witnesses, and that she failed to investigate Delshawn Williams as a

potential witness. These two errors constitute deficient performance under Strickland’s first prong.

An assessment of the totality of the omitted evidence shows that the unprofessional errors of counsel

were prejudicial. We consider these errors in turn. 

Under Michigan state law, if a defendant plans to offer an alibi as a defense, he must provide

proper notice to the prosecution:

If a defendant in a felony case proposes to offer in his defense testimony to establish

an alibi at the time of the alleged offense, the defendant shall at the time of

arraignment on the information or within 15 days after that arraignment but not less

than 10 days before the trial of the case, or at such other time as the court directs, file

and serve upon the prosecuting attorney a notice in writing of his intention to claim

that defense. The notice shall contain, as particularly as is known to the defendant

or the defendant’s attorney, the names of witnesses to be called in behalf of the

defendant to establish that defense. The defendant’s notice shall include specific

information as to the place at which the accused claims to have been at the time of

the alleged offense.

Mich. Comp. Laws § 768.20(1) (emphasis supplied). “The trial court has the discretion to exclude

alibi testimony when the defendant violates the notice provisions of M.C.L. § 768.20.” People v.

Bieri, No. 206707, 2000 WL 33421293, at *4 (Mich. Ct. App. May 9, 2000) (unpublished decision)

(citations omitted).

As to the first prong of Strickland, O’Connell’s failure to provide the location of the alibi fell

below an objective standard of performance. Michigan law unequivocally requires the defendant

to list the location of the alibi, as well as the names of the alibi witnesses. O’Connell, while

providing the names of the alibi witnesses, did not give notice of the location of the alibi. The trial

court had discretion to exclude the alibi witnesses, and it chose to do so by excluding two of the

three alibi witnesses but allowing one alibi witness to testify.5

 An objectively reasonable attorney

would have complied with Michigan law in providing the correct alibi notice. This is especially true

because Petitioner’s entire defense rested upon alibi. See Clinkscale v. Carter, 375 F.3d 430, 443

(6th Cir. 2004) (finding objectively deficient performance where counsel failed to timely submit the

notice of alibi and where alibi was “a critical aspect of a defendant’s defense”).

We next consider Petitioner’s claim that O'Connell's failure to investigate Delshawn

Williams as a potential witness constituted defective performance. Under Strickland, trial counsel

has a duty to investigate his case:

Strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation. In other words,
No. 04-2419 Stewart v. Wolfenbarger Page 14

counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness

case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to

counsel’s judgments.

Id. at 690-91. “This duty includes the obligation to investigate all witnesses who may have

information concerning his or her client’s guilt or innocence.” Towns v. Smith, 395 F.3d 251, 258

(6th Cir. 2005) (citation omitted).

At Petitioner’s trial, Simpson testified that he was at a friend’s house on April 22, 1996.

Simpson testified that he was visiting his friend Marvin, who is Marvin Williams, Delshawn

Williams’ brother. Marvin Williams and Delshawn Williams live at the same house. He testified

that Petitioner, shortly before the time of the shooting, entered the house, asked Simpson if Simpson

knew where the victim was, threatened to kill the victim, and then left with Johnson and

McBurroughs in a black Chevy Impala. 

At the evidentiary hearing, Petitioner testified that before trial, he read Simpson’s statement,

and he contacted Williams through Petitioner’s brother. Petitioner asked O’Connell to subpoena

Williams, so that Williams could testify that Petitioner was not at Williams’ house on April 22,

1996. At the evidentiary hearing, Williams testified that O’Connell never contacted him about

Petitioner’s case, and he was never subpoenaed to testify at Petitioner’s trial. Williams also testified

that on April 22, 1996, Simpson was never at Williams’ home, contrary to Simpson’s testimony at

Petitioner’s trial. Williams testified that he did not find out about the content of Simpson’s

testimony until after Petitioner’s trial was finished.

The uncontested evidence in the record is that O’Connell failed to adequately investigate

Simpson’s statement, and she failed to adequately investigate Williams as suggested by Petitioner.

In either case, it seems clear that O’Connell should have, at some point, contacted Williams, one of

the individuals who lived in the house where Simpson purportedly had the conversation with

Petitioner on April 22, 1996. This failure to investigate clearly constituted objectively deficient

performance. Simpson was a major witness against Petitioner, as he testified that Petitioner

threatened to kill the victim shortly before the victim was shot and killed. Even a superficial

investigation would have led to the house where this conversation purportedly took place, and such

investigation would have led directly to Williams. Moreover, Petitioner specifically told O’Connell

to subpoena Williams. We can see no strategic purpose in failing to investigate Williams as a

potential favorable witness. As this Court stated: “Where counsel fails to investigate and interview

promising witnesses, and therefore ‘ha[s] no reason to believe they would not be valuable in

securing [defendant’s] release,’ counsel’s inaction constitutes negligence, not trial strategy.”

Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir. 1992) (quoting United States ex rel. Cosey v. Wolff, 727 F.2d 656, 658 n.3 (7th Cir. 1984)). See also Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir.

1987) (“Counsel did not make any attempt to investigate this known lead, nor did he even make a

reasoned professional judgment that for some reason investigation was not necessary.”).

The state court reasoned that O’Connell’s failure to contact Williams was not deficient

performance, because Williams testified at the evidentiary hearing that he did not step forward

earlier with his information because he was “neutral” and “didn’t want to get involved” because he

knew both Petitioner and the victim. (J.A. at 831-32.) The state court stated:

We agree with the trial court that counsel was not ineffective for not calling Williams

as a witness because Williams stated that he did not come forward as a witness and

did not want to be involved. Counsel cannot be faulted where the potential witness

clearly did not want to be involved in the case and did not come forward with any
No. 04-2419 Stewart v. Wolfenbarger Page 15

testimony. Therefore, defendant has not shown that counsel was deficient for not

calling Williams as a witness at trial.

Stewart, 2001 WL 1277451, at *3. This argument rests on an unreasonable application of the

Strickland standard to the facts of this case. See Williams, 529 U.S. at 413. First, the fact that

Williams was unwilling to step forward with this information on his own does not mean that

Williams was unwilling to testify that Simpson was not at Williams’ house on April 22, 1996. In

fact, Williams testified that he gave a statement to another, unknown lawyer. In our view, this fact

indicates that Williams most likely would have testified at Petitioner’s trial consistent with his

testimony at the evidentiary hearing. Second, as noted by Petitioner, even if Williams was in fact

reluctant to testify, O’Connell had no way of knowing this, as she never spoke with Williams.

Third, even if Williams was reluctant to testify, the state trial court could have issued a subpoena

and compelled Williams to testify. Perhaps most telling is that the state court subpoenaed Williams

to testify at the evidentiary hearing, Williams appeared before the state court, and Williams testified

that Simpson was not at his house on the day the shooting occurred, even though Williams was

reluctant to come forward on his own. There is absolutely no reason to believe that Williams would

have acted any differently had he been subpoenaed to testify at trial, as Petitioner requested from

O’Connell. In short, there is simply no excuse for O’Connell’s failure to investigate Williams and

her consequent failure to secure his testimony on behalf of Petitioner.

We believe 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. These

two errors of counsel went to the very heart of Petitioner’s defense, namely, that when the crime was

committed, he was not even in the state.

We turn first to the alibi witnesses. The state court of appeals found that Petitioner had

suffered no prejudice from O’Connell’s failure to provide the proper alibi notice because the trial

court had permitted one of these witnesses to testify and the testimony of the other two would have

been cumulative. We disagree.

In Washington v. Smith, 219 F.3d 620 (7th Cir. 2000), the Seventh Circuit held that the

testimony of several alibi witnesses was not cumulative: 

Gola Richardson, Sharon Brown, David Brown and Jerome Pickens [the four

potential alibi witnesses] were with [the petitioner] at 24th and Vine at about the time

the Jolly Skot was robbed. Jerome Pickens was the only one of these to testify,

corroborating [the petitioner’s] story, but Pickens’s credibility was impaired because

of his prior convictions. The impact of three more witnesses corroborating [the

petitioner’s] alibi would not have been “cumulative” as the Wisconsin Court of

Appeals believed. Evidence is cumulative when it “supports a fact established by

existing evidence,” Black’s Law Dictionary 577 (7th ed. 1999), but Washington’s

whereabouts on the day of the robbery was far from established–it was the issue in

the case. The fact that Pickens had already testified to facts consistent with [the

petitioner’s] alibi did not render additional testimony cumulative. Indeed, the

additional testimony of Gola Richardson, Sharon Brown and David Brown–none of

whom could have been impeached as having a criminal record–would have added

a great deal of substance and credibility to [the petitioner’s] alibi. See Montgomery

v. Petersen, 846 F.2d 407, 411-15 (7th Cir.1988) (finding counsel ineffective for not

calling additional disinterested alibi witnesses not subject to the same impeachment

as family members); Crisp v. Duckworth, 743 F.2d 580, 585 (7th Cir.1984) (finding

that “[h]aving independent witnesses corroborate a defendant’s story may be

essential” and “testimony of additional witnesses cannot automatically be

categorized as cumulative”). Rather than one direct alibi witness with a criminal
No. 04-2419 Stewart v. Wolfenbarger Page 16

record, [the petitioner] could have had three potentially more credible witnesses, all

of whom would have supported his claim that he was at Gola Richardson’s when the

Jolly Skot was robbed.

Id. at 634 (seventh alteration in the original). Of particular note was that the jury anticipated more

than one alibi witness, considering the substance of the alibi:

Plus, the jury surely wondered where these people were, especially Ms. Richardson

who had been named on [the petitioner’s] Notice of Alibi and who Mr. Engle

specifically mentioned at least at voir dire. There was a negative inference against

[the petitioner] based on their absence. . . . Given the absence of these witnesses, the

jury had good reason to find [the petitioner’s] alibi dubious.

In a similar case in this circuit, we held that the testimony of several alibi witnesses was not

cumulative. In Bigelow v. Williams, the petitioner’s counsel failed to investigate the possibility of

other alibi witnesses after one disinterested alibi witness surfaced. 367 F.3d 562, 565 (6th Cir.

2004). The one alibi witness’ testimony was vulnerable because he had worked at the alibi location

where he saw the petitioner on two consecutive days; thus the prosecution could create doubt that

the alibi witness had in fact seen the petitioner on the day the crime occurred. Id. Had counsel

investigated, counsel would most likely have found three additional alibi witnesses, who would not

have had such vulnerability. Id. at 565-66. The state court found that the testimony of the three

additional witnesses would have been cumulative, and this Court disagreed:

This evidence plainly would have bolstered [the petitioner’s] defense and was

anything but cumulative. . . . [The petitioner] had just one witness at trial (Greenlee)

who could support his alibi defense. Doubtless, three other witnesses, who like

Greenlee did not previously know [the petitioner] and accordingly had no axe to

grind in testifying on his behalf, would have aided the defense. This testimony also

would have shored up the weaknesses in Greenlee’s testimony . . . .

Id. at 575.

Likewise, in Clinkscale, this Court granted the petitioner habeas relief after his counsel failed

to timely submit a notice of alibi. 375 F.3d at 445. The petitioner, testifying in his own defense at

trial, stated that he could not have committed the crime of which he was accused because he was one

hundred seventy miles away at the time. Id. at 433. Although there were three people who could

have corroborated the alibi, defense counsel failed to timely file a notice of alibi, and the trial court

refused to allow the testimony of the three alibi witnesses. Id. at 434-35. Thus, the only evidence

of the alibi was the petitioner’s testimony, which was uncorroborated. In finding ineffective

assistance of counsel, this Court stated:

As it was, Clinkscale’s only meaningful defense–for which no evidence other than

his own testimony was deemed admissible–was that he could not have committed the

crimes as charged because he was in Youngstown at the time with his close friend,

Bryan Fortner, his girlfriend, Rhonda Clark, and his father, Arthur Clinkscale. The

fact that none of these individuals could provide any corroboration for this alleged

alibi certainly must have significantly affected the jury’s assessment of Clinkscale’s

guilt. Had even one alibi witness been permitted to testify on Clinkscale’s behalf,

Clinkscale’s own testimony would have appeared more credible because it coincided

in important respects with those of his alibi witness[(es)]. . . . [W]ithout any

corroborating witnesses, however, Clinkscale’s testimony left him without any

effective defense.

Id. at 445 (alterations in the original) (internal quotation marks and citations omitted).
No. 04-2419 Stewart v. Wolfenbarger Page 17

Based on this case law, we find that the excluded testimony of Hill and Foster was not

“cumulative,” so that Petitioner did suffer prejudice from O’Connell’s failure to submit a proper

alibi notice. As noted by the Seventh Circuit, “[e]vidence is cumulative when it ‘supports a fact

established by existing evidence,’ Black’s Law Dictionary 577 (7th ed. 1999),” but in the instant

case, Petitioner’s alibi defense was hardly established by the sole testimony of Ziegler. Washington, 219 F.3d at 634. The testimony of Hill and Foster “would have added a great deal of substance and

credibility to” Petitioner’s alibi defense. Id. This is especially true because Ziegler, the alibi witness

who did testify, was impeached with the fact that he allowed Petitioner to use Ziegler’s address in

Petitioner’s application for a Michigan driver’s license under an assumed name. Moreover, even

though Hill and Foster were friends with Petitioner, they were also friends with the victim. Rather

than one alibi witness who had been impeached, Petitioner would have had two more credible

witnesses who would have supported that he could not have committed the murder.

One fact that we note is of particular importance is that the prosecution emphasized the lack

of other alibi witnesses during the cross-examination of Ziegler:

Q: Now, you say Mr. William Foster and Mr. Gerald Hill, they were with you also, is

that correct?

A: Yes.

Q: Are they here in court?

Ms. O’Connell: Objection, your Honor, as to relevancy.

The Court: Well, how is it relevant, Mr. Prosecutor?

Mr. Wagner: Your Honor, if he’s saying this and he’s with some other people, I

want to know if they can corroborate what he’s saying.

(J.A. at 506.) Amazingly, the prosecution made this comment after the state trial judge had already

ruled, outside of the jury’s presence, that Hill and Foster could not testify, so they were prevented

from corroborating Ziegler’s testimony. In our view, a natural question that a juror would have in

hearing Ziegler’s testimony was whether Hill and Foster were going to testify, considering that

Ziegler placed Hill and Foster with Petitioner on April 22, 1996. This question was further

impressed in the juror’s mind when the prosecution explicitly stated that if Ziegler’s testimony were

true, Hill and Foster would be able to corroborate that testimony, which the prosecution knew Hill

and Foster were prevented from doing. When Hill and Foster did not testify, as the state trial court

disallowed their testimony, “the jury had good reason to find [Petitioner’s] alibi dubious.”

Washington, 219 F.3d at 634. Like the petitioner in Clinkscale, Petitioner was forced to present

uncorroborated testimony for his only defense, alibi, and this lack of corroboration “must have

significantly affected the jury’s assessment of” Petitioner’s guilt. 375 F.3d at 445.

The ultimate question on the issue of prejudice is whether, but for O’Connell’s objectively

deficient performance, there was a reasonable probability of a different result at trial:

A reasonable probability is a probability sufficient to undermine confidence in the

outcome, . . . but something less than a showing that the outcome more likely than

not would have been different . . . . While the petitioner need not conclusively

demonstrate his actual innocence, . . . the focus should be on whether the result of

the trial was fundamentally unfair or unreliable . . . .

Bigelow, 367 F.3d at 570 (internal quotation marks and citations omitted). Petitioner’s entire

defense strategy was an alibi defense. Due to O’Connell’s failure to submit a proper alibi notice,
No. 04-2419 Stewart v. Wolfenbarger Page 18

Petitioner was able to present only one alibi witness, who was impeached with information that

could not have been used against the other two excluded alibi witnesses. Petitioner’s alibi defense

was doomed to failure, as the jury expected to hear from Hill and Foster to corroborate Ziegler’s

testimony, an expectation that the prosecution assisted in cultivating. When Hill and Foster did not

testify, as the state trial court, outside the presence of the jury, excluded their testimony, the jury

would naturally assume that Ziegler’s testimony lacked reliability. The jury had no idea that Hill

and Foster’s failure to testify was caused by the state trial court’s exclusion, as opposed to Hill and

Foster’s unwillingness or inability to corroborate Ziegler’s testimony. 

O’Connell’s error in failing to investigate the witness Delshawn Williams compounded the

prejudice suffered as a result of the lack of the alibi witness. Simpson was a key witness for the

prosecution, as the state court of appeals admitted. Stewart, 2001 WL 1277451, at *1. Simpson

provided critical testimony that, shortly before the victim was shot and killed, Simpson was at

Williams’ house, and Petitioner arrived at the house, asking about the location of the victim and

threatening to kill the victim. Simpson testified that Petitioner left the house with Johnson and

McBurroughs. Shortly after their departure, the victim was shot and killed. Williams’ testimony

would have cast substantial doubt as to Simpson’s testimony, as Williams would have testified that

Simpson was not at Williams’ house on April 22, 1996, nor was Petitioner.

 Because O’Connell failed to investigate and call Williams as a witness, the questionable

testimony of Simpson was allowed to go unchallenged. Simpson’s testimony was significant in four

respects: (1) it corroborated the testimony of McBurroughs, a purported eyewitness to the shooting,

that Petitioner, McBurroughs, and Johnson were together on the day of the shooting, thus lending

credibility to the whole of McBurroughs’ testimony; (2) it provided the only semblance of motive

evidence, as Simpson testified that Petitioner was angry and threatened to kill the victim, even

though Petitioner and the victim were friends and no other witness was able to testify as to any

problems between Petitioner and the victim; (3) it provided the only evidence of the element of

premeditation under first degree murder; and (4) it was evidence of identity, as Simpson identified

Petitioner as threatening to kill the victim, and the victim was fatally shot shortly thereafter.

McBurroughs’ testimony and Simpson’s testimony were the twin pillars of the prosecution’s case,

and the testimony of one bolstered the testimony of the other. Consequently, but for O’Connell’s

failure to challenge Simpson’s testimony via Williams, there is a reasonable probability of a

different outcome for Petitioner’s case.

When determining prejudice, the Court must consider the errors of counsel in total, against

the totality of the evidence in the case. See Strickland, 466 U.S. at 695-96 (“In making [the

prejudice] determination, a court hearing an ineffectiveness claim must consider the totality of the

evidence before the judge or jury. . . . Taking the unaffected findings as a given, and taking due

account of the effect of the errors on the remaining findings, a court making the prejudice inquiry

must ask if the defendant has met the burden of showing that the decision reached would reasonably

likely have been different absent the errors.”). In the instant case, had O’Connell provided effective

assistance, Williams would have severely undercut the testimony of Simpson, and Williams would

have been a credible witness, considering that he was friends with both Petitioner and the victim.

Moreover, Hill and Foster would have bolstered the viability of Petitioner’s alibi defense, and they

too would have been credible, considering their friendship with both Petitioner and the victim. The

prosecution would have been left with the uncorroborated testimony of McBurroughs and the

testimony of the victim’s brother, who could not even identify the shooter, against Petitioner’s three

alibi witnesses, who would have testified that Petitioner could not have committed the crime. The

difference between the case that was and the case that should have been is undeniable. We therefore

hold that the state court’s finding that Petitioner’s counsel was “not ineffective” was “objectively

unreasonable” in light of the facts in this case. See Brown v. Payton, 544 U.S. 133, 147 (2005).
No. 04-2419 Stewart v. Wolfenbarger Page 19

III. CONCLUSION

For the foregoing reasons, we REVERSE the order of the district court and GRANT the

petition for writ of habeas corpus. The district court shall enter an order requiring Petitioner to be

released from custody unless the State of Michigan commences a new trial within 180 days of the

district court’s order.