                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0522n.06

                                           Case No. 15-2139

                            UNITED STATES COURT OF APPEALS                            FILED
                                 FOR THE SIXTH CIRCUIT                          Sep 08, 2016
                                                                            DEBORAH S. HUNT, Clerk

ALLEN MARION,                                        )
                                                     )
          Petitioner-Appellee,                       )
                                                     )        ON APPEAL FROM THE UNITED
v.                                                   )        STATES DISTRICT COURT FOR
                                                     )        THE EASTERN DISTRICT OF
JEFFREY WOODS, Warden,                               )        MICHIGAN
                                                     )
          Respondent-Appellant.                      )
                                                     )
                                                     )

BEFORE: SILER, BATCHELDER, and GIBBONS, Circuit Judges.

          SILER, Circuit Judge. Michigan prisoner Allen Marion was convicted of second-degree

murder, felony-firearm, and felon in possession of a firearm. The district court granted his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, finding that he was deprived of

the effective assistance of trial counsel. For the reasons set forth below, we REVERSE the

district court’s grant of habeas relief.

                       FACTUAL AND PROCEDURAL BACKGROUND

     I.      Trial and conviction

          On July 2, 2009, a Michigan jury found Marion guilty of second-degree murder of Joseph

Day, who was killed by gunshot on March 1, 2006. Prior to trial, Marion’s attorney, Steven

Scharg, filed a notice of alibi indicating that he planned to call Charles Lewis and a person
Case No. 15-2139, Marion v. Woods


named Arnell as alibi witnesses at trial. Ultimately, though, Scharg presented no alibi defense.

The defense strategy was instead centered on attacking the credibility of Donald “Ricardo” Sims,

the government’s primary witness and the only witness who positively identified Marion as the

shooter. Scharg argued that Sims, a convicted narcotics trafficker, accused Marion only to lower

his own federal sentence for a drug conspiracy.

         Though the jury acquitted Marion of first-degree premeditated murder, it returned a

guilty verdict on the lesser-included offense of second-degree murder. The jury also convicted

Marion of felony-firearm and felon in possession of a firearm.

   II.      Direct appeal in the Michigan Court of Appeals

         Marion appealed his conviction to the Michigan Court of Appeals, raising several

instances of ineffective assistance of trial counsel (“IATC”). His appellate briefs did not allege

that Scharg was ineffective for failing to investigate an alibi defense or to call alibi witnesses.

However, after the briefs were submitted, Marion’s appellate counsel moved to remand for an

evidentiary hearing on newly discovered evidence that suggested an alibi defense.

         The motion included affidavits from Charles A. Lewis, Jr., and Rochelle Moore. Lewis’s

affidavit, dated December 14, 2009, stated that on the date of Day’s shooting, Marion picked

Lewis up at approximately 4:00 p.m. They arrived at a jewelry store in Hamtramck, Michigan,

between 4:45 p.m. and 5:00 p.m. Lewis stated that Marion looked at some rings, made a down

payment on one of them, and received a receipt from the store owner. He estimated that they

were at the jewelry store for over an hour before leaving after 6:00 p.m. They then visited a

party store and arrived at Rochelle Moore’s home in Detroit between 6:45 p.m. and 7:00 p.m.

Lewis indicated that he left at approximately 7:45 p.m., when Marion and Moore drove him to




                                               -2-
Case No. 15-2139, Marion v. Woods


his car. He averred that he was with Marion from 4:00 p.m. to 7:45 p.m. on the date of the

shooting and that this information was communicated to Scharg prior to trial.

       Moore’s affidavit, dated October 20, 2010, stated that the engagement ring that Marion

had purchased for her was stolen from her home in 2009. While searching for receipts to support

an insurance claim for her losses, she discovered the receipt for the ring from Mirage Jewelry

Store, which listed Marion’s name and was dated March 1, 2006.

       The motion to remand also included a copy of the receipt from Mirage Jewelry Store and

an affidavit from the store’s owner, Zaher Murray. Murray stated that he had recently been

shown a copy of a receipt from his store and a photograph of a woman wearing a diamond ring.

He confirmed that the handwriting on the receipt was his and that the receipt predated 2009. He

observed that the ring in the photograph was consistent with the price and description listed on

the receipt and with the rings available in his store. Murray reviewed a photograph of Marion

and recognized him as a customer.

       On July 8, 2010, Chief Investigator Linda Borus of the State Appellate Defender Office

visited the Mirage Jewelry Store with a copy of the receipt. Murray identified the handwriting

on the receipt as his own and verified that the receipt came from his store.

       Scharg’s affidavit was also attached to the motion to remand. Scharg acknowledged

having submitted to the trial court an alibi witness list that included the names of Lewis and

Arnell. He stated that these individuals “could possibly have provided [Marion] with an alibi.”

However, he noted that at the time of trial, “[N]one of the prospective witnesses, including Mr.

Marion, could corroborate where they believed themselves to have been at [the] time of the

incident which occurred on March 1st, 2006, almost three years earlier.” Scharg stated that the

newly discovered receipt “allows for corroboration of an important part of Mr. Marion’s



                                               -3-
Case No. 15-2139, Marion v. Woods


description of his activities and the activities of others he was with on March 1st, 2006; [h]ad I

been able to verify the authenticity of the receipt as has been presently done, I certainly would

have run a now very credible alibi defense on Mr. Marion’s behalf.”

          The Michigan Court of Appeals denied Marion’s motion to remand based on Marion’s

“failure to persuade the Court of the necessity of a remand.”             It later affirmed Marion’s

convictions in a reasoned opinion and did not address the remand arguments. The Michigan

Supreme Court affirmed in a summary order.

   III.      Federal habeas proceeding and state post-conviction litigation

          After Marion filed a petition for a writ of habeas corpus in 2012, the district court granted

his subsequent motion to stay the proceedings and hold the petition in abeyance so that he could

exhaust additional claims in state court. See Marion v. Berghuis, No. 2:12-CV-13127, 2012 WL

3150857 (E.D. Mich. Aug. 2, 2012).

          Marion next filed a post-conviction motion for relief from judgment in the trial court

pursuant to Michigan Court Rule 6.500-.509 (“the Rule 6.500 motion”). He claimed that Scharg

was ineffective for failing to present an alibi defense and that appellate counsel was ineffective

for failing to raise this argument on direct appeal. The trial court denied Marion’s Rule 6.500

motion, concluding that his “claims of ineffective assistance of trial counsel . . . were previously

raised and decided on appeal.” The court noted that Michigan Court Rule 6.508(D)(2) precludes

granting relief to a defendant whose “motion alleges grounds for relief[] which were decided

against the defendant in a prior appeal or proceeding.”

          Marion filed a motion to remand and a delayed application for leave to appeal with the

Michigan Court of Appeals. The court denied Marion’s application for leave for “fail[ing] to

meet the burden of establishing entitlement to relief under MCR 6.508(D).” In the same order,


                                                  -4-
Case No. 15-2139, Marion v. Woods


the court denied without explanation Marion’s motion to remand. The Michigan Supreme Court

affirmed.

   IV.      Renewed habeas petition and district court opinion

         Marion renewed his habeas petition in federal court to include enlarged claims regarding

the ineffectiveness of his trial and appellate counsel. The district court granted Marion’s motion,

concluding that Scharg’s failure to present alibi witnesses or to investigate potential

corroboration of Marion’s alibi denied him the effective assistance of trial counsel.

         The court observed that when a state court fails to adjudicate a habeas petitioner’s claim

on the merits, the deferential standard articulated in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) does not apply; instead, the federal court must review the claim

de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009). The threshold question for the district

court, then, was whether Marion’s IATC claim was ever “‘adjudicated on the merits’ for

purposes of the ADEPA deferential standard of review.” However, the court ultimately deemed

it unnecessary to determine the appropriate standard of review. It instead assumed that Marion’s

IATC claim was adjudicated on the merits by the Michigan Court of Appeals when it rejected his

motion to remand on direct review, or by the trial judge on post-conviction review when he

denied Marion’s related newly-discovered evidence and ineffective assistance of appellate

counsel claims.

         The court explained that even under AEDPA’s deferential standard of review, “the

rejection of [Marion’s] ineffective assistance of trial counsel claim was contrary to, or an

unreasonable application of, clearly established law and an unreasonable determination of the

facts.” Although Scharg claimed in his affidavit that he failed to call alibi witnesses because

none could corroborate their alibis, the court deemed this rationale “untenable.” It held that


                                                -5-
Case No. 15-2139, Marion v. Woods


Scharg’s failure to investigate and present an alibi defense was ineffective and that Marion was

therefore entitled to a writ of a habeas corpus. See Clinkscale v. Carter, 375 F.3d 430, 444-46

(6th Cir. 2004).

                                  STANDARD OF REVIEW

       We review a district court’s grant of habeas relief de novo. Bray v. Andrews, 640 F.3d

731, 734 (6th Cir. 2011).     The threshold question remains whether Michigan courts ever

adjudicated Marion’s IATC claim for purposes of AEDPA’s deferential standard of review. If

so, the court is bound by AEDPA, which “erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 15-

16 (2013). AEDPA provides, in relevant part:

               An application for a writ of habeas corpus on behalf of a person in
               custody pursuant to the judgment of a State court shall not be
               granted with respect to any claim that was adjudicated on the
               merits in State court proceedings unless the adjudication of the
               claim--
               (1) resulted in a decision that was contrary to, or involved an
                   unreasonable application of, clearly established Federal law,
                   as determined by the Supreme Court of the United States; or
               (2) resulted in a decision that was based on an unreasonable
                   determination of the facts in light of the evidence presented
                   in the State court proceeding.

28 U.S.C. § 2254(d). A state court’s decision is “contrary to” federal law only “if the state court

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

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

indistinguishable facts.”   Metrish v. Lancaster, 133 S. Ct. 1781, 1786 n.2 (2013) (internal

quotation marks and citation omitted). A state court’s decision constitutes an “unreasonable

application of” federal law if it “identifies the correct governing legal principle in existence at

the time,” but “unreasonably applies that principle to the facts of the prisoner’s case.” Cullen v.

                                               -6-
Case No. 15-2139, Marion v. Woods


Pinholster, 563 U.S. 170, 182 (2011) (internal quotation marks and citation omitted). Under

AEDPA, a habeas petitioner must demonstrate that the state court’s ruling “was so lacking in

justification that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011);

see also Hardy v. Cross, 132 S. Ct. 490, 495 (2011) (per curiam) (“Under AEDPA, if the state-

court decision was reasonable, it cannot be disturbed.”).

       If, on the other hand, the state courts failed to adjudicate Marion’s claim on the merits,

the habeas court must consider it according to pre-AEDPA standards—that is, de novo analysis

for questions of law and mixed questions of law and fact, and clear error for questions of fact.

Robinson v. Howes, 663 F.3d 819, 823 (6th Cir. 2011).

                                          DISCUSSION

       The Michigan Court of Appeals denied Marion’s application for leave to appeal, finding

that he “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).”

The trial court noted that Michigan Court Rule 6.508(D)(2) precludes granting relief to a

defendant whose “motion alleges grounds for relief[] which were decided against the defendant

in a prior appeal or proceeding.” Because Marion “never raised an ineffective assistance of trial

counsel claim on his direct appeal regarding the failure to call alibi witnesses,” the district court

held that the state court’s invocation of this rule “appear[ed] erroneous.” The court stated that

“[t]he erroneous invocation of M.C.R. 6.508(D)(2) to deny a habeas petitioner’s claim is not

considered an adjudication on the merits.” It therefore suggested that AEDPA’s deferential

standard does not apply and that the claim is instead reviewed de novo. The district court is

correct on this statement of the law: we have held that “[b]rief orders citing Michigan Court




                                                -7-
Case No. 15-2139, Marion v. Woods


Rule 6.508(D) are not explained orders invoking a procedural bar.”        Guilmette v. Howes,

624 F.3d 286, 289 (6th Cir. 2010).

       However, the court overlooked the Michigan Court of Appeals’ denial of Marion’s post-

conviction motion to remand. In that motion, Marion argued that trial counsel’s failure to

investigate and call alibi witnesses rendered his performance ineffective. The Michigan Court of

Appeals denied Marion’s motion without explanation. “When a federal claim has been presented

to a state court and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.” Harrington, 562 U.S. at 99 (citation omitted). Accordingly, it may

be presumed that the Michigan post-conviction court adjudicated Marion’s IATC claim on the

merits when it denied his motion to remand. And though “[t]he presumption may be overcome

when there is reason to think some other explanation for the state court’s decision is more

likely,” id. at 99-100, Marion has not made this showing. The state court’s denial of Marion’s

motion to remand thus constitutes an adjudication on the merits. See Nali v. Phillips, 681 F.3d

837, 852 (6th Cir. 2012) (determining that “state courts had the opportunity to adjudicate

[petitioner’s] claim on the merits” where the court summarily denied petitioner’s motion to

remand and application for leave to appeal, both of which raised IATC claims).

       Because Marion’s IATC claim was adjudicated on the merits by the Michigan Court of

Appeals, we must determine whether the court reasonably applied federal law as established in

Strickland v. Washington, 466 U.S. 668 (1984). To satisfy Strickland’s first prong, Marion must

demonstrate that counsel’s representation was so deficient that it “fell below an objective

standard of reasonableness”—that is, that he did not function as the “counsel” guaranteed by the

Sixth Amendment. Id. at 688. A defendant must overcome “a strong presumption that counsel’s



                                             -8-
Case No. 15-2139, Marion v. Woods


conduct falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Id. at 689 (internal quotation marks and citations omitted).

       The district court deemed Scharg’s failure to call an alibi witness “untenable” given the

facts. It concluded that Lewis’s proposed testimony, if believed, “would provide an air-tight

alibi for [Marion] and absolve him of the crime.” According to Marion, “[T]his is because it

does not stand to reason that the alleged risk of being unable to corroborate the alibi was worth

its cost – i.e. abandoning an available theory that was consistent with innocence and would have

plausibly explained Mr. Marion’s whereabouts with Lewis . . . .” But as noted above, Scharg

spoke with Lewis and originally planned to call him at trial; he altered this plan only upon

realizing that no alibi witnesses “could corroborate where they believed themselves to have been

at the time of [the] incident.”      Given the wide range of acceptable litigation strategies

contemplated by Strickland, this decision is not per se unreasonable. And as the Warden notes,

the jury acquitted Marion of first-degree murder, suggesting that Scharg effectively convinced

jurors of at least some aspects of the defense case.

       The district court pointed to Clinkscale, 375 F.3d at 443, and Blackburn v. Foltz,

828 F.2d 1177, 1183 (6th Cir. 1987), which suggest that counsel’s performance may be deficient

for failing to investigate and present potential alibi witnesses. But Sixth Circuit precedent

“cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 132 S. Ct. 2148,

2155 (2012) (per curiam). And regardless of the applicable standard, both Clinkscale and

Blackburn are distinguishable. In Clinkscale, the defendant’s attorney failed to timely file an

alibi notice, leading the trial court to disallow the purported alibi witnesses and resulting in the

deprivation of the defendant’s “only meaningful defense.” 375 F.3d at 444-45. Likewise, in



                                                -9-
Case No. 15-2139, Marion v. Woods


Blackburn, counsel failed to investigate a potential alibi witness and filed no notice of alibi.

828 F.2d at 1182-83. Here, however, Marion’s trial counsel filed an alibi notice but ultimately

opted not to call the alibi witnesses, instead pivoting to a different defense strategy. As the

Warden notes, “The difference between Clinkscale and this case is simple: The former involved

attorney ineptness, the latter a strategic decision.”

        The district court further deemed Scharg’s performance deficient due to his failure to

attempt to verify other facets of the alibi defense. To the district court, Scharg’s affidavit makes

no attempt to explain his lack of investigation into Marion’s whereabouts: for example, he does

not state whether he contacted jewelry store personnel, searched for the receipt, or otherwise did

anything to verify Lewis’s story.        Strickland provides that “counsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular investigations

unnecessary.” 466 U.S. at 691. But under Strickland, we must “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at

689. As the Warden argues, it could be that Scharg asked Marion for the receipt prior to trial and

that he could not find it, or that Marion provided no specific information about where he

purchased the ring. Simply put, the record is silent as to this point. “It should go without saying

that the absence of evidence cannot overcome the ‘strong presumption that counsel’s conduct

[fell] within the wide range of reasonable professional assistance.’” Titlow, 134 S. Ct. at 17

(quoting Strickland, 466 U.S. at 689); see also Rompilla v. Beard, 545 U.S. 374, 383 (2005)

(“[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance

something will turn up; reasonably diligent counsel may draw a line when they have good reason

to think further investigation would be a waste.”).




                                                 - 10 -
Case No. 15-2139, Marion v. Woods


        Scharg investigated the alibi defense, determined that it was uncorroborated, and

concluded that a better strategy was to attack the credibility of the prosecution’s primary witness.

Moreover, the jury acquitted Marion of first-degree murder, finding him guilty of the lesser

offense of second-degree murder along with the weapons offenses. The Supreme Court has

instructed, “There are countless ways to provide effective assistance in any given case,” and

“[e]ven the best criminal defense attorneys would not defend a particular client in the same

way.”    Strickland, 466 U.S. at 689.      Scharg’s performance satisfied the broad range of

professional competence required by Strickland.

        As to Strickland’s prejudice prong, the defendant must demonstrate that counsel’s

deficient performance prejudiced his defense, yielding “a reasonable probability that, but for

counsel’s unprofessional errors, the result of [the defendant’s trial] would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

at 694. Marion argues that the prosecution’s evidence was “far from conclusive,” resting almost

entirely upon the testimony of Sims, whose cooperation with police was motivated by self-gain.

He further notes that the prosecution offered neither forensic nor ballistics evidence connecting

Marion to the shooting. Marion insists that the trial “came down to a credibility contest”

between Mr. Marion’s theory of defense and the self-interested testimony of the state’s lone

eyewitness.

        But despite these assertions, physical evidence is not required to sustain a criminal

conviction. Moreover, the prosecution’s substantial reliance upon only one witness is not a basis

to assume prejudice. Marion bears an arduous burden as to the prejudice prong: “The likelihood

of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112. He

has not made this showing.



                                               - 11 -
Case No. 15-2139, Marion v. Woods


       For these reasons, we REVERSE the judgment of the district court, VACATE the grant

of a writ of habeas corpus, and REMAND the case for dismissal of the § 2254 petition.




                                            - 12 -
