                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0570n.06

                                            No. 07-2481

                           UNITED STATES COURT OF APPEALS                                  FILED
                                FOR THE SIXTH CIRCUIT                                  Aug 30, 2010
                                                                                 LEONARD GREEN, Clerk

KEVIN TUCKER,                                     )
                                                  )
       Petitioner-Appellee,                       )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    EASTERN DISTRICT OF MICHIGAN
JOHN CASON, Warden,                               )
                                                  )
       Respondent-Appellant.                      )
                                                  )

Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*

       DANNY C. REEVES, District Judge. Respondent-appellant John Cason appeals the

district court’s conditional grant of petitioner-appellee Kevin Tucker’s petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we reverse the district court’s

decision.

                                                  I.

       Tucker was charged with four counts of first-degree criminal sexual conduct involving his

daughter, AT. The State alleged penile/oral penetration, penile/anal penetration, foreign object/anal

penetration, and penile/vaginal penetration.1 The acts were alleged to have occurred sometime in


       *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
       1
         Although the State initially charged penile/vaginal penetration, the fourth count presented
to the jury was digital/vaginal penetration.

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Tucker v. Cason

the summer of 1996, when AT was five years old, shortly before Tucker and AT were involved in

a serious automobile accident.

       Tucker was tried before a jury in Macomb County Circuit Court. At trial, AT testified that

she and her father were home by themselves watching television when he instructed her to remove

her clothes. She complied, and he removed his own clothes. Next, according to AT, Tucker put his

penis in her vagina, anus, and mouth.       He then “shoved” the eraser end of a pencil “up [her]

private.”

       Dr. Jay Eastman, a pediatrician specializing in the examination of child abuse victims,

testified as an expert for the prosecution. He had not examined AT but had reviewed a report

prepared by Dr. Norma Inocencio following her examination of AT in October 1999, after the abuse

allegations came to light. Dr. Eastman testified that Dr. Inocencio’s findings of irregularities in AT’s

hymen and anus were “compatible with sexual abuse.” On cross-examination, defense counsel asked

Dr. Eastman if he was aware that AT had been in a serious accident. Dr. Eastman responded that

he knew about the accident and believed AT had suffered a broken leg, but he was unsure of her

other injuries. Dr. Eastman acknowledged that medical records from the accident might be

significant for purposes of a sexual-abuse examination if, for example, the accident had involved “a

penetrating injury to the vagina.”

       In fact, AT sustained extensive pelvic injuries in the accident, which occurred in mid-August

1996. Further, AT experienced vaginal bleeding as a result of her injuries. To determine the cause

of the bleeding, doctors performed manual explorations of her vagina, as well as a vaginoscopy.

These procedures entailed the insertion of a finger or medical instrument across AT’s hymen into

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Tucker v. Cason

her vagina, which could have resulted in hymenal trauma. However, this information was not

presented to the jury, presumably because defense counsel had not obtained AT’s medical records

from the accident.

       Nevertheless, during closing arguments, Tucker’s attorney noted Dr. Inocencio’s failure to

review those records:

       And you will remember the testimony regarding the fact that [AT] had had a serious
       accident. And I asked the doctor, did you review — actually I asked him did the
       doctor who wrote the report review the accident reports or the medical reports? And
       the answer was there is no indication in that report that those reports had been
       reviewed. And I suggest to you might that not be important to review reports? Do
       we know that something of that nature didn’t happen during the course of the
       accident?

In rebuttal, the prosecution argued:

       Now, defense attempts to show about how the victim was in a serious car accident
       so maybe something in that car accident may have caused her hymen to be missing
       and deep anal fissures. Well, I’m not certain what kind of car accident that would be,
       however, defense has the exact same subpoena powers as the prosecution as you can
       tell, because they called witnesses as well, and there was not one doctor that got on
       that stand that said when [AT] was in this car accident she was penetrated by
       something. There is no evidence to say that. The only evidence to say that she was
       penetrated is the evidence of [AT]’s testimony that said she was penetrated by her
       father sexually. To go from there to some sort of car accident mishap is a quantum
       leap that this jury should not make.

       The jury convicted Tucker on the first three counts but found him not guilty of

digital/vaginal penetration.   Tucker received concurrent sentences of 85 to 240 months of

incarceration on each count. He moved for an evidentiary hearing and a new trial, arguing that his

counsel was ineffective because he had not obtained AT’s medical records from the car accident.

The court granted Tucker’s request for an evidentiary hearing. Among the witnesses who testified


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Tucker v. Cason

at the hearing was Dr. Inocencio, who had since reviewed AT’s emergency-room records from the

accident.2 The pertinent portions of Dr. Inocencio’s testimony are discussed below.

       Following the hearing, the trial court determined that defense counsel’s failure to obtain the

medical records was not objectively unreasonable, and Tucker’s motion for a new trial was denied.

Tucker appealed his convictions to the Michigan Court of Appeals, asserting four grounds for relief.

The only claim relevant for present purposes alleged various deficiencies in his trial counsel’s

performance, including the failure to obtain AT’s medical records from the accident.

       The state court of appeals affirmed Tucker’s convictions in an unpublished per curiam

decision. People v. Tucker, No. 232094, 2003 Mich. App. LEXIS 563 (Mich. Ct. App., Mar. 4,

2003). Tucker then filed an application for leave to appeal in the Michigan Supreme Court.

However, the application was denied. People v. Tucker, 469 Mich. 903, 669 N.W.2d 816 (2003).

In October 2003, Tucker filed the subject petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, raising the same four claims for relief asserted in his direct appeal.

       The district court found merit in Tucker’s ineffective-assistance claim with respect to his

counsel’s failure to obtain the medical records. The court thus conditionally granted habeas relief,

ordering that Tucker be released unless the State elected to retry him on the underlying charges

within seventy days. Tucker v. Cason, No. 03-10254, 2007 U.S. Dist. LEXIS 78329, at *66 (E.D.




       2
        AT was treated at Mount Clemens General Hospital immediately following the accident.
She was then transferred to Children’s Hospital, where she remained for approximately two months.
Dr. Inocencio reviewed only the Mount Clemens records.

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No. 07-2481
Tucker v. Cason

Mich., Oct. 23, 2007). This appeal followed.3 The district court granted the respondent’s motion

to stay and Tucker’s request for release on bond. On November 29, 2007, Tucker was released on

a $50,000 bond pending resolution of the appeal.

                                                    II.

        A district court’s decision to grant a habeas petition is subject to de novo review. Murphy

v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). Because Tucker’s petition was filed after the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214 (“AEDPA”), that statute’s provisions apply. See Murphy, 551 F.3d at 493. AEDPA permits

federal courts to grant habeas relief with respect to claims previously adjudicated on the merits in

state court only if the state court adjudication,

        (1)     resulted in a decision that was contrary to, or involved an unreasonable
                application of, clearly established Federal law, as determined by the Supreme
                Court of the United States; or

        (2)     resulted in a decision that was based on an unreasonable determination of the
                facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

        A state-court decision falls under the “contrary to” clause of § 2254(d)(1) “if the state court

arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the


        3
         Tucker also filed a Notice of Appeal, cross-appealing from those portions of the district
court’s October 2007 Opinion and Order that were adverse to him. Tucker’s cross-appeal, No. 08-
10, was consolidated with the instant case. However, this Court found that Tucker had abandoned
three of his claims for relief and ultimately denied a certificate of appealability with regard to the
remainder of his ineffective-assistance claim. As a result, the only issue currently before this panel
is whether the district court properly granted habeas relief based on defense counsel’s failure to
obtain AT’s medical records from the auto accident.

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No. 07-2481
Tucker v. Cason

state court decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision is also contrary

to clearly established federal law “if the state court applies a rule that contradicts the governing law

set forth in [Supreme Court] cases.” Id. at 405. Likewise, habeas relief is appropriate under the

“unreasonable application” clause if the state court “identifies the correct governing legal principle

from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” Id. For purposes of the “unreasonable application” clause, it is not enough that a

federal habeas court finds the state court’s application of federal law to be erroneous or incorrect.

Instead, the application must be objectively unreasonable. Id. at 409-12.

        To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must establish

that the state court’s decision was contrary to, or involved an unreasonable application of, the two-

part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, a

defendant must first establish “that counsel’s performance was deficient. This requires showing that

counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. The second prong of the Strickland inquiry is whether the

defendant was prejudiced by his attorney’s deficient performance. Id. To satisfy the prejudice

requirement, 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.” Id. at 694. If the

defendant suffered no prejudice as a result of his attorney’s performance, it is irrelevant whether that



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No. 07-2481
Tucker v. Cason

performance was deficient.4 Id. at 697.

       Although the state court’s decision must be consistent with Supreme Court precedent, the

state court need not cite or even be aware of applicable Supreme Court cases, “so long as neither the

reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3,

8 (2002). However, a decision is contrary to clearly established federal law where the state court

recites the Strickland test but applies a more demanding burden of proof to the prejudice inquiry.

Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006) (citing Williams, 529 U.S. at 405-06). In such

cases, we review the merits of the ineffective-assistance claim de novo, unconstrained by § 2254(d).

Id. (citing Williams, 529 U.S. at 406).

       Here, the state appeals court did not cite Strickland but recognized the two-prong test set

forth in that decision: “A successful claim of ineffective assistance of counsel requires a defendant

to ‘show that counsel’s performance was deficient and that there is a reasonable probability that, but

for the deficiency, the factfinder would not have convicted the defendant.’” Tucker, 2003 Mich.

App. LEXIS 563, at *5 (quoting People v. Snider, 239 Mich. App. 393, 423-24, 608 N.W.2d 502




       4
          The Supreme Court, recognizing that this will often be the case, has instructed that “there
is no reason” to address the performance aspect first “or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697; see also
Baze v. Parker, 371 F.3d 310, 321 (6th Cir. 2004) (finding it unnecessary to address the issue of
attorney competence where the defendant could show no prejudice from counsel’s arguably deficient
performance). Thus, because we find no reasonable probability that the outcome of Tucker’s trial
would have been different but for his attorney’s failure to obtain the medical records, we need not
evaluate counsel’s performance.

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No. 07-2481
Tucker v. Cason

(2000)).5 Nevertheless, the court ultimately applied a stricter standard for assessing prejudice:

       Moreover, we note that developing the possibility that the accident could have
       resulted in physical conditions resembling those commonly associated with sexual
       abuse would only have presented an alternative explanation for the complainant’s
       physical condition. It would not have eliminated the possibility of sexual
       penetration, nor would it have called into question the victim’s compelling testimony
       against defendant. Accordingly, we cannot conclude that, but for trial counsel’s
       failure to refute the prosecution’s expert testimony, defendant would not have been
       convicted. Consequently, we reject defendant’s contention that counsel was
       ineffective as to this issue.

Id. at *13-*14 (internal citations omitted).

       As the district court correctly noted, “[t]he standard for determining prejudice is not whether

effective advocacy would have ‘eliminated the possibility’ that the defendant committed the crime

or that the petitioner ‘would not have been convicted.’” Rather, Tucker was merely required to show

a reasonable probability that his attorney’s errors affected the outcome of his case. Tucker, 2007

U.S. Dist. LEXIS 78329, at *44 (citing Strickland, 466 U.S. at 694). Thus, the state-court decision

was contrary to Strickland, and the merits of Tucker’s claim must be reviewed de novo. See Fulcher,

444 F.3d at 799. Under any standard of review, however, Tucker has made an insufficient showing

of prejudice.

       Tucker argues, and the district court concluded, that AT’s medical records from the accident

would have provided the jury with an alternative explanation for the irregularities described in Dr.

Inocencio’s report. See Tucker, 2007 U.S. Dist. LEXIS 78329, at *45. In particular, the district

court found it significant that the jury heard “no alternative explanation for the injuries to AT’s


       5
       In Snider, the Michigan Court of Appeals cited People v. Pickens, 446 Mich. 298, 312, 521
N.W.2d 797 (Mich. 1994), in which the Michigan Supreme Court cited Strickland.

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No. 07-2481
Tucker v. Cason

genitals.” Id. at *46. Yet Tucker was acquitted of the one charge to which such an alternative

explanation would have been relevant: the digital/vaginal penetration charge. Thus, presentation of

evidence that “the doctors treating AT after the car accident inserted fingers and medical instruments

into her vagina to determine the cause of the vaginal bleeding,” would not likely have resulted in a

more favorable outcome for Tucker.

       The only information in the medical records of apparent relevance to the charges of which

Tucker was convicted is a notation that AT had “good sphincter tone” following the automobile

accident. At first glance, this notation, as well as the absence of any indication of trauma to AT’s

anus at the time of the accident, appears to contradict Dr. Inocencio’s later finding that AT had deep

anal fissures consistent with sexual abuse. However, Dr. Inocencio testified at the evidentiary

hearing that sexual abuse would not necessarily affect a child’s sphincter tone; rather, sphincter tone

would only be damaged in cases of severe abuse involving the use of force.6 Moreover, according

to Dr. Inocencio, sphincter tone is better determined through the use of a colposcope, a procedure

generally not undertaken in emergency-room examinations.

       More significantly, however, the medical records provide no alternative explanation for the

anal fissures noted in Dr. Inocencio’s report. Dr. Inocencio testified that there “definitely” would

have been an indication in the medical records if anal bleeding or fissures had been observed

following the automobile accident. A child-abuse expert who also reviewed the accident records


       6
        The applicable statutory definition of “sexual penetration” includes “any . . . intrusion,
however slight, of any part of a person’s body or of any object into the genital or anal openings of
another person’s body.” MCL § 750.520a(r); see MCL § 750.520b(1)(a). Thus, the State was not
required to prove that Tucker penetrated AT forcefully.

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No. 07-2481
Tucker v. Cason

after trial, Dr. Stephen Guertin, found nothing of significance in the records with respect to the anal-

penetration charges. While the absence of anal trauma after the accident tends to undermine the

State’s theory as to when the abuse occurred, it is even more damaging to an argument that the

injuries noted by Dr. Inocencio were the result of the accident and not sexual abuse. Thus, the

hospital records would have been of little, if any, help in countering the medical evidence presented

by Dr. Eastman regarding the anal-penetration charges and, in fact, would not have supported the

argument Tucker now contends his trial counsel should have pursued.

       In any event, there was little to refute. The extent of Dr. Eastman’s trial testimony regarding

AT’s anal injuries, given during direct examination, was as follows:

       A       The other thing that Dr. Inocencio mentioned is her anal findings.

               Under anus,

               “Done in a ‘supine’ position with child holding on to both flexed knees that
               are flexed at hips.”

               “Irregular slightly crythematous perianal folds. Deep fissures at 3, 4, 6, 8, 9,
               12 o’clock. Immediate moderately prominent venous congestion at 4, 6, 8,
               9-10 o’clock is seen. Linear vertical line extending posteriorly from 6
               o’clock. No lesions, bleeding, discharge or bruising noted.”

               Again, compatible with abuse.

       Q       And is that deep fissures at certain areas of the clock, what is that?

       A       That’s areas where the mucosa has broken and then healed back together,
               leaving a fissure.

       Q       Okay.

               And is that something you would normally see in a nine year old?


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No. 07-2481
Tucker v. Cason

       A       No, it’s not.

Given this relatively brief discussion, as well as Dr. Inocencio’s later testimony that good sphincter

tone is not necessarily inconsistent with sexual abuse and the lack of any other information contained

in the medical records relevant to the charges of conviction, we cannot find that it is reasonably

probable the jury would have reached a different conclusion had the records been presented at trial.

Defense counsel’s failure to obtain the records therefore resulted in no prejudice. Thus, his

performance, regardless of whether it was up to professional standards, did not constitute ineffective

assistance under Strickland.

                                                 III.

       For the foregoing reasons, we reverse the district court’s grant of habeas relief.




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