                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0374n.06

                                       Case No. 15-2233

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Jun 27, 2017
                                                                            DEBORAH S. HUNT, Clerk
JAMES MOSS,                                        )
                                                   )
       Petitioner-Appellee,                        )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE EASTERN DISTRICT OF
KATHLEEN OLSON,                                    )       MICHIGAN
                                                   )
       Respondent-Appellant.                       )
                                                   )
                                                   )


BEFORE: COLE, Chief Judge, STRANCH, and DONALD, Circuit Judges

                                         OVERVIEW

       BERNICE BOUIE DONALD, Circuit Judge. This case involves an appeal from the

district court’s grant of habeas relief to Petitioner James Moss. Moss challenged his convictions

on three counts of second-degree criminal sexual conduct, three counts of third-degree criminal

sexual conduct, one count of fourth-degree criminal sexual conduct, and two counts of accosting

a child for immoral purposes. The district court concluded that petitioner was denied effective

assistance of trial counsel when his attorney failed to call the complainants’ grandmother to

testify that one of the complainants recanted her allegations and for failing to adequately cross-

examine this same complainant. For the reasons that follow, We REVERSE the district court

order granting habeas relief.
Case No. 15-2233
Moss v. Olson

                                             I. BACKGROUND

         In 2011, Petitioner James Moss was convicted of sexually assaulting his then-girlfriend’s

teenage daughter, M, as well as her teenage niece, K.1 Between 2002 and 2004, both girls lived

with Moss and his girlfriend, Tammy Tansey. Tansey and Moss’ daughter, A, and Moss’

daughter from a previous relationship, T, also resided in the home during the relevant periods.

The cases regarding M and K were consolidated for trial.

         Regarding the trial, the Michigan Court of Appeals adduced the following facts, which

are entitled to the presumption of correctness under § 2254(e)(1). K testified that when she was

between the ages of thirteen and sixteen, Moss repeatedly engaged her in a sexual manner. She

testified that he would bribe her to show him her breasts in exchange for cigarettes. M also

accused Moss of sexually touching her, and further claimed that he digitally penetrated her on

one occasion and forced her into sexual intercourse on another. M testified that she drank

heavily during this period, which often resulted in blackouts. She recounted that on several

occasions she awoke from an alcohol-induced slumber to discover Moss performing sexual acts

on her, including penile-vaginal intercourse. T testified that she never witnessed inappropriate

conduct by her father towards M or K. Tansey also testified that she had not witnessed any

inappropriate conduct. Tansey further testified that K denied any inappropriate behavior to

Tansey when Tansey directly asked her. Tansey also stated that M once taunted Tansey by

claiming that M and the defendant were in a consensual sexual relationship, but later told Tansey

that she was lying. Neither girl reported the incidents until 2009.

         The matter was tried before a jury in September 2011. After less than three hours of

deliberation, the jury convicted Moss on all of the counts brought against him. Specifically, the

1
  This case involves individuals who were minors at the time of the events in question. Thus, this memorandum,
like the district court and state court below, does not refer to minors by their names, but rather by their initials.

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jury convicted Moss of three counts of second-degree criminal sexual conduct and two counts of

accosting a child for improper purposes in the case related to K and three counts of third-degree

criminal sexual conduct and one count of fourth-degree criminal sexual conduct in the case

related to M.

        Moss appealed each case to the Michigan Court of Appeals, raising a number of issues

including those presented in his habeas petition. The Michigan Court of Appeals granted Moss’

motion for an evidentiary hearing pursuant to Mich. Ct. R. 7.211(C)(1) and People v. Ginther,

212 N.W.2d 922 (Mich. 1973), on the issue of whether Moss received constitutionally deficient

representation when trial counsel failed to call the victims’ grandmother, Novella Alliston, as a

defense witness. During the Ginther hearing, the trial court heard statements from Moss’ trial

counsel as well as Alliston. Trial counsel stated that he reviewed the evidence provided by

Moss’ original counsel, including a police report in which Alliston stated, among other things,

that M recanted her accusation against Moss to Alliston.                      However, counsel did not

independently recall Alliston and did not interview or call her in preparation for trial. He stated

that he did call Tansey and T in an attempt to impeach the victims and support the defense theory

that the sexual assault did not occur. Alliston confirmed the statements attributed to her in the

police report, which include M’s recantation as well as statements by Alliston that M would

“fuck a dog if she was drunk.” R. 9-10, ID #509.2 Alliston also testified to a second recantation,

one not in the police report, in which she recalled M stating that “we lied” about the accusations

against Moss.      Id. at 507.     The trial court determined that due to trial counsel’s lack of

recollection regarding Alliston, it could not reach a decision regarding counsel’s allegedly

deficient performance, but that Moss’ claim of ineffective counsel nevertheless failed because he

2
  The record also shows that Alliston referred to M as “desperate” and a pathological liar who would be “dropped
[off] at all hours of the morning by different men like a piece of meat.” R. 9-12, ID #591-92.

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could not make the requisite showing of prejudice. The Michigan Court of Appeals then

affirmed Moss’ convictions, and the Michigan Supreme Court denied Moss’ application for

leave to appeal.

       Moss then filed a petition for federal habeas relief in the district court below, arguing that

he was denied effective assistance of counsel when his counsel failed to fully investigate

Alliston’s testimony that M recanted her allegations and when his counsel failed to adequately

cross-examine M at trial. The district court determined that counsel had rendered ineffective

assistance in not fully investigating Alliston’s testimony and that Moss was prejudiced by this

failure, noting that the evidence against Moss was weak, that the victims lacked credibility, and

that Alliston would have been more credible than Tansey. The district court also concluded that

trial counsel was “clearly deficient” in failing to confront M on inconsistencies between her trial

testimony and the police report, and that Moss was prejudiced by counsel’s failure to effectively

impeach M. The state appeals.

                                      II. JURISDICTION

       The district court properly exercised 28 U.S.C. §§ 1331 and 2241 jurisdiction over Moss’

petition for writ of habeas corpus filed under 28 U.S.C. § 2254. This Court has jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253.

                                        III. ANALYSIS

           a) Standard of Review

       This Court reviews “the district court’s legal conclusions in habeas proceedings de novo

and its findings of fact for clear error.” Akins v. Easterling, 648 F.3d 380, 385 (6th Cir. 2011)

(internal quotation marks and citation omitted). Where a state court has adjudicated a claim on

the merits, a federal court sitting in review of that decision is limited by the Antiterrorism and


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Effective Death Penalty Act of 1996 (“AEDPA”). In accordance with AEDPA, “with respect to

any claim that was adjudicated on the merits in State court proceedings,” this Court must uphold

the state court decision unless it was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court,” or it 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).

       “[H]abeas relief is available under the ‘unreasonable application’ clause if the state court

‘unreasonably applies [a correct governing legal] principle to the facts of the prisoner’s case.’”

Akins, 648 F.3d at 385 (citation omitted). For a state court’s decision to be an unreasonable

application of clearly established federal law, the state court application must be objectively

unreasonable and not just erroneous or incorrect. Id. at 385-86; see also Renico v. Lett, 559 U.S.

766, 773 (2010). The factual determinations of the state court are “presumed to be correct,”

unless the petitioner can rebut that presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

       AEDPA review is only available to claims “adjudicated on the merits in State court

proceedings.” Id. § 2254(d). However, a state court need not provide the reasons for its decision

to deny relief in order for its decision to be deemed to have been adjudicated on the merits. See

Harrington v. Richter, 562 U.S. 86, 99 (2011). In habeas claims involving ineffective assistance

of counsel, this Court has interpreted Richter to imply that “when there is no explanation as to

either Strickland prong, a habeas court must afford both prongs AEDPA deference after

‘determining what arguments or theories could have supported the state court’s decision.’”

Rayner v. Mills, 685 F.3d 631, 637 (6th Cir. 2012) (quoting Richter, 562 U.S at 102) (alterations

omitted). However, “[w]hen a state court relied only on one Strickland prong to adjudicate an


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ineffective assistance of counsel claim, AEDPA deference does not apply to review of the

Strickland prong not relied upon by the state court.” Id. at 638. Rather, this Court applies de

novo review. Id; see also Rompilla v. Beard, 545 U.S. 374, 390 (2005) (“Because the state

courts found the representation adequate, they never reached the issue of prejudice . . . so we

examine this element of the Strickland claim de novo.”).3

             b) Ineffective Assistance of Counsel Claim Regarding Novella Alliston

         A criminal defendant’s right to the effective assistance of counsel is guaranteed by the

Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 686 (1984). In stating a claim for

ineffective assistance of counsel, a criminal defendant must show “that counsel’s representation

fell below an objective standard of reasonableness,” and “that there is a reasonable probability

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

different.” Id. at 688, 694. A court’s review of counsel’s performance under this standard “is

highly deferential and counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.” Johnson v.

Bell, 525 F.3d 466, 487 (6th Cir. 2008) (internal quotation marks omitted). Petitioner bears the

burden of showing that “counsel’s performance was deficient.” Strickland, 466 U.S. at 687.

Regarding 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


3
  Appellant argues that the Supreme Court “implicitly overruled” Rompilla in Davis v. Ayala, which Appellant
claims is analogous to the present case. In Davis, the Court reviewed a finding of harmlessness by the state court
and afforded AEDPA deference to the state court decision. 135 S. Ct. 2187, 2198-99 (2015). There the petitioner
sought habeas relief due to the trial court’s decision to hear prosecution’s justification for striking certain witnesses
outside of the presence of the defense. Id. at 2197. The state court denied habeas relief on the grounds that any
error committed by the trial court was harmless. Id. Reviewing this denial of habeas, the Court applied AEDPA
review to the state court’s finding of harmlessness, which it determined to be adjudicated on the merits. Id. at 2198.
Appellant’s argument is unfounded as Davis is neither analogous to the present case, nor does it implicitly overrule
Rompilla. The Davis Court reviews the harmlessness decision without reaching the underlying constitutional claim
that was left unadjudicated by the state court. Because the issue presented in Rompilla and the present case require
the review of an unadjudicated claim, Appellant’s argument regarding Davis fails.

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been different.” Strickland, 466 U.S. at 694 (emphasis added). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Bigelow v. Williams, 367 F.3d

562, 570 (6th Cir. 2004) (internal quotation marks omitted). To be actionable, this probability

“must be substantial, not just conceivable.” Richter, 562 U.S. at 112. Because the state court in

the present case based its ruling on the prejudice prong without reaching the deficient

performance prong, this Court reviews the deficient performance prong de novo, but still affords

the prejudice prong AEDPA deference. Daniel v. Curtin, 499 F. App’x 400, 404 (6th Cir. 2012).

                   i. Deficient Performance

       The Supreme Court has held that counsel’s failure to adequately investigate before

deciding on a defense strategy constitutes ineffective assistance of counsel. Wiggins v. Smith,

539 U.S. 510, 522 (2003). “[S]trategic choices made after less than complete investigation are

reasonable only to the extent that reasonable professional judgments support the limitations on

investigations.” Id. at 533 (internal quotation marks and citation omitted). In determining the

reasonableness of a decision not to investigate, this Court must consider all of the circumstances.

Id. Further, this Circuit has a long history of finding deficient performance on de novo review

where an attorney fails to conduct any investigation of a witness. See, e.g., Couch v. Booker, 632

F.3d 241, 246 (6th Cir. 2011) (“While the point of the Sixth Amendment is not to allow Monday-

morning quarterbacking of defense counsel's strategic decisions, a lawyer cannot make a

protected strategic decision without investigating the potential bases for it.”); English v.

Romanowski, 602 F.3d 714, 728 (6th Cir. 2010) (“Although defense counsel's decision not to call

Ceruti was not an unreasonable trial strategy, we hold that counsel's failure to adequately

investigate that decision before trial was deficient performance sufficient to satisfy the first

prong of the Strickland test.”); Bigelow v. Haviland, 576 F.3d 284, 289 (6th Cir. 2009)


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(concluding that counsel's failure to seek corroboration for an alibi defense constituted deficient

performance under Strickland); Poindexter v. Booker, 301 F. App’x 522, 528–29 (6th Cir. 2008)

(concluding that counsel's failure to investigate two alibi witnesses constituted deficient

performance under Strickland).

       Further, the district court found that counsel’s decision not to investigate Alliston

constituted deficient performance because “in failing to locate and speak with Ms. Alliston . . .

[,] counsel was not in a position to determine whether she would be beneficial or not to

petitioner’s case.” R. 10, ID #1155. Indeed, even where it may be “objectively reasonable” to

decline to call a witness, “it [i]s objectively unreasonable for counsel to make that decision

without first investigating [the witness], or at least making a reasoned professional judgment that

such investigation was unnecessary.” Towns v. Smith, 395 F.3d 251, 260 (6th Cir. 2005). It is

undisputed that Moss’ trial counsel had no independent recollection of Alliston and that he did

not reach out to her before trial. It is also undisputed that Alliston’s statements describing M’s

recantation as well as her drinking habits and her sexual behavior were included in the police

report that counsel claimed to have read. While Appellant argues that there are objectively

reasonable justifications for not further investigating Alliston in the police report, namely her

apparent hostility towards M, as manifested in her callous statements about M, reasons that

“might explain why an attorney ultimately would decide not to present the testimony of a witness

at trial . . . do not explain why counsel would choose not to conduct even minimal investigation

into the potential utility of a witness.” Curtin, 499 F. App’x at 407. Trial counsel’s failure to

make any effort to investigate Alliston in light of her statements in the record may constitute

deficient performance. However, the fact that Moss’s counsel may have rendered deficient

performance in failing to investigate Alliston does not on its own support a finding of ineffective


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assistance of counsel because Moss must also prove that he was prejudiced by his counsel’s

performance.

                      ii. Prejudice

       A determination of deficient performance does not end the Strickland inquiry. In order

for a petitioner to receive habeas relief, he must also show that his defense was prejudiced by

counsel’s deficient performance, such that but for the deficiency there is a “reasonable

probability that . . . the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. For the reasons noted above, this Court applies the AEDPA standard of review to the

prejudice prong of Petitioner’s claim. “The standards created by Strickland and § 2254(d) are

both highly deferential and when the two apply in tandem, review is doubly so.” Richter, 562

U.S. at 105 (internal quotation marks and citations omitted). Thus, “[t]he pivotal question is

whether the state court’s application of the Strickland standard was unreasonable [which] is

different from asking whether defense counsel’s performance” prejudiced Petitioner under

Strickland. Id. at 101. A purposefully strict standard, AEDPA limits habeas relief to only

“extreme malfunctions in the state criminal justice systems,” and cannot be used as “a substitute

for ordinary error correction through appeal.” Id. at 102-03. In reviewing the state court

decision under this standard, we “presum[e] that state courts know and follow the law.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Further, we are to uphold the “state court’s

determination that a claim lacks merit . . . so long as fairminded jurists could disagree on the

correctness of the state court’s decision.” Richter, 562 U.S. at 101 (internal quotation marks and

citations omitted).

       The district court determined that Petitioner was prejudiced by counsel’s failure to call

Alliston on his behalf. In doing so, the district court noted that a criminal defendant may be


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prejudiced by trial counsel’s failure to call additional witnesses to corroborate his defense, and

placed great emphasis on the weak evidence against Petitioner in this case. Notably, where “a

verdict or conclusion [is] only weakly supported by the record, [it] is more likely to have been

affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 696.

The district court largely based its finding of prejudice on the conclusion that there was a

reasonable probability that the jury would have credited Alliston’s testimony over the testimony

of M and Tansey. However, nowhere in its prejudice analysis does the district court address the

ultimate question of whether the state court’s application of Strickland was reasonable. Rather,

the district court “appears to have treated the unreasonableness question as a test of its

confidence in the result it would reach under de novo review,” essentially concluding that

because the district court “had little doubt that [Moss’] Strickland claims had merit . . . the state

court must have been unreasonable in rejecting it.” Richter, 562 U.S. at 102. However, this line

of reasoning “overlooks arguments that would otherwise justify the state court’s result.” Id.

       It was not unreasonable for the state court to conclude that there was a reasonable

probability that Alliston’s testimony would not have affected the result of the proceeding. The

district court opinion relies on cases in which this Court found that the petitioner was prejudiced

by counsel’s failure to call additional alibi witnesses to corroborate his defense to reach the

conclusion that this Court has rejected whole cloth the idea that additional alibi witnesses may be

merely cumulative and, therefore, would not affect the outcome of a case. However, these cases

do not support such a broad conclusion and are distinguishable from the present case. “Evidence

is cumulative when it supports a fact established by existing evidence.”                 Stewart v.

Wolfenberger, 468 F.3d 338, 359 (6th Cir. 2006) (quotations omitted). In Stewart, trial counsel

failed to submit a proper alibi notice for two witnesses who would have testified that petitioner


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could not have committed a murder.               Id.    In that case, the alibi provided by the defense

necessarily implicated a number of individuals, and the only witness called to testify was

impeached. Id. Further, after the trial judge ruled that the two witnesses would not be allowed

to testify due to improper notice, the prosecution emphasized the lack of additional alibi

witnesses to undermine petitioner’s alibi defense.                Rather than ruling that additional alibi

witnesses may not be considered cumulative, the Stewart Court ruled that where additional non-

testifying witnesses were implicated in petitioner’s alibi defense, their testimony may not be

considered cumulative, as their absence “‘must have significantly affected the jury’s assessment

of’ Petitioner’s guilt.” Id. at 359-60 (citing Strickland, 375 F.3d at 445); see also Clinkscale v.

Carter, 375 F.3d 430, 443 (6th Cir. 2004) (finding prejudice where, due to trial counsel’s failure

to submit a timely notice of alibi, the trial judge excluded the testimony of the only three

witnesses who could have corroborated petitioner’s alibi testimony).4

        First, the district court’s reasoning for disregarding the state court’s finding of a lack of

prejudice – that this Circuit has rejected the idea that additional alibi witnesses are merely

cumulative and thus their absence is non-prejudicial – is unsupported under the §2254(d)

standard. “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined

by the Supreme Court’” and thus it “cannot form the basis for habeas relief under AEDPA.”

Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (quoting §2254(d)(1)). Neither the district

court nor petitioner have provided Supreme Court precedent suggesting that additional alibi

testimony as a rule may not be considered cumulative and thus non-prejudicial. Thus, the district




4
  The district court also cites Bigelow v. Williams, 367 F.3d 562, 571 (6th Cir. 2004), where counsel failed to
investigate and thus overlooked three additional alibi witnesses who could not have been impeached in the way the
testifying witness was. However, in that case this Court did not perform a prejudice analysis but rather remanded to
the district court for an evidentiary hearing on the issue. Id. at 576.

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court’s implicit ruling that the state court unreasonably applied the Strickland standard because it

inappropriately ruled that Alliston’s testimony cumulative is unfounded.

          Further, the case at bar is easily distinguishable from those relied upon by the district

court. First, Alliston is not an alibi witness. “An alibi witness’s testimony is based on direct

first-hand knowledge that a defendant could not have committed the charged offense, and, if

believed, is inherently dispositive of the case.” United States v. Munoz, 605 F.3d 359, 379 n.15

(6th Cir. 2010). Alliston cannot testify based on direct first-hand knowledge that Moss did

commit the crimes against M. Rather, she can testify regarding statements made by M recanting

her accusations. In addition, unlike Stewart and Clinkscale, this is not a case where the jury

would need to hear additional witness testimony to believe the petitioner’s defense theory.

Unlike in those cases where the petitioner’s alibi defense necessarily involved participation by a

number of individuals who were not called before the jury, in the present case, Moss’ recantation

defense did not necessarily involve participation by Alliston or any witness other than Tansey.

Thus, Alliston’s absence did not undermine the defense in the way that the absence of the

overlooked witnesses in Stewart and Clinkscale did. Nor was Alliston’s testimony the only other

evidence that supported Petitioner’s theory. There was existing evidence that M recanted: Moss

was able to rely on testimony from Tansey, M’s mother, and from M herself to bolster his

claims.

          In addition, Stewart and Clinkscale notwithstanding, this Court has not held that as a rule

additional alibi testimony may not be considered cumulative. Robins v. Fortner, 698 F.3d 317,

330 (6th Cir. 2012) (holding that where an additional witness’ testimony would be cumulative to

testimony already provided, “[t]he state appellate court’s conclusion that [petitioner] had failed

to show prejudice was not unreasonable”). As in Robins, the state court here compared the


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testimony that was presented to the jury to the testimony that may have been presented if

Alliston had testified and determined that Alliston’s testimony was cumulative and thus her

absence was not prejudicial. Given that M’s mother, Tansey, testified regarding a recantation

that M made to her, and considering the apparent animosity Alliston expressed towards her

granddaughter in her statement to the police, it was not unreasonable for the state court to

conclude that her exclusion was not prejudicial.

       Petitioner attempts to draw a parallel between this case and the Ninth Circuit’s decision

in Vega v. Ryan, 757 F.3d 960 (9th Cir. 2014). Both cases involve claims of ineffective

assistance of counsel in sexual assault cases where trial counsel failed to interview an additional

recantation witness. However, in Vega, the additional witness was a Catholic priest to whom the

victim recanted during confession. Id. at 962. The Ninth Circuit concluded that trial counsel’s

failure to interview and produce this witness at trial was prejudicial even though the victim’s

mother also testified that the victim recanted to her. Id. However, recanting to one’s priest

during confession, a purposefully anonymous practice, is not analogous to recanting to one’s

grandmother, especially where that grandmother views the victim as a sexually promiscuous liar

with a substance abuse problem. In Vega, the relationship between the non-testifying priest and

the victim was inherently different from the relationship between the testifying mother and the

victim, such that reasons for discounting the testimony of the mother would not have applied to

the potential testimony of the priest. The same cannot be said in the present case. It was not

unreasonable for the state court to conclude that a jury that accepted M’s explanation that she

recanted to her mother because she was seeking her mother’s love would also accept that same

explanation regarding any recantation to Alliston, M’s grandmother.




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       Petitioner also argues in passing that the state court mischaracterized the prejudice

inquiry. The Michigan Court of Appeals initially correctly articulated the standard for prejudice

under Strickland as requiring Moss to demonstrate “a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different.” R. 9-12, ID #533.

Later in its analysis, however, the Michigan court incorrectly stated that “failure to call or

investigate a witness amounts to ineffective assistance only if it deprives the defendant of a

substantial defense.” Id. at ID #534. According to the state court, a substantial defense is one

that “might have made a difference in the outcome of the trial.” Id. (emphasis added). However,

the state court based its determination on the appropriate standard. It concluded that because

trial counsel presented evidence of M’s recantation along with evidence that otherwise painted

the victims in a negative light, it could not “discern a reasonable probability that Alliston’s

testimony would have swayed the jury.” Id. Further, the burden for showing a substantial

defense is much lower than the “reasonably probability” standard imposed by Strickland. The

state court decision could be interpreted as concluding that because Moss cannot make the

showing that Alliston’s testimony might have made a difference in the outcome, Moss

necessarily cannot make the showing that it is reasonably probable that the result would be

different. As the Supreme Court explained in Visciotti, AEDPA deference requires that “state-

court decisions be given the benefit of the doubt.” Visciotti, 537 U.S. at 24. “[R]eadiness to

attribute error is inconsistent with the presumption that state courts know and follow the law.” Id.

The Michigan Court of Appeals both initially articulated and based its conclusion on the proper

standard. Accordingly, we grant the state court the benefit of the doubt and assume that it

considered Moss’ claim under the proper standard.




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

counsel’s failure to investigate on the grounds that the Petitioner was not prejudiced by his

counsel’s deficient performance.

           c) Trial Counsel’s Cross-Examination of M

       The district court concluded that trial counsel was “clearly deficient” for failing to

impeach M on inconsistencies between her statement to the police and her testimony at trial.

The district court then determined that Petitioner was prejudiced by this failure. Specifically, the

district court compared M’s trial testimony that she “voluntarily reported petitioner’s abuse to

the police” and that the abuse began in 2003 when M was 17 years old to police reports which

suggest that M’s boyfriend reported the alleged abuse and that the abuse started in 2002 when M

was 16. R. 10, ID #1158. The state court, on the other hand, considered the manner in which the

abuse was reported to the police to be a “trivial detail” and did not believe it could have affected

the trial. R. 9-12, ID #535. It also noted that while trial counsel did not produce the police

report itself to impeach M’s testimony, “he did attack M’s credibility specifically noting

inconsistencies in her timeline of events,” before ultimately concluding that producing the report

for impeachment purposes was not likely to have changed the outcome of the trial. Id. The

district court concluded that trial counsel nevertheless failed to impeach M on her inconsistencies

and that “[a]ll counsel had to do was ask two more questions on cross-examination to completely

undermine the credibility of M.”      R. 10, ID #1158.      Again, the district court reached its

conclusion without applying the appropriate standard of review.           Because the state court

arguably only adjudicated the prejudice prong on the merits, this Court reviews the deficient




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performance prong de novo, but still affords the prejudice prong AEDPA deference. Curtin, 499

F. App’x at 404.5

         Even viewing the claim de novo, Moss has not sufficiently proven that his counsel

performed deficiently during his cross-examination of M. As the court below has previously

acknowledged, “[w]here, as here, trial counsel conducts a thorough and meaningful cross-

examination of a witness, counsel’s failure to employ a trial strategy that, in hindsight, might

have been more effective does not constitute unreasonable performance for purposes of an

ineffective assistance of counsel claim.” Johnson v. Hofbauer, 159 F. Supp. 2d 582, 607 (E.D.

Mich. 2001).        Trial counsel made a substantial effort to impeach M during her cross-

examination, asking her about the likelihood that no one would have heard her screams for help,

her recantation to her mother, her history with drinking, and the inconsistency in her timeline.

R. 9-12, Id # 535.         The idea that trial counsel may have been “more effective[]” in his

impeachment had he taken another course is precisely the sort of second-guessing of a tactical

judgment that Strickland counsels against. See Esparza v. Sheldon, 765 F.3d 615, 624 (6th Cir.

2014). Though counsel could have further probed the inconsistencies highlighted by the district

court, his failure to do so in light of the otherwise extensive cross-examination does not

undermine the presumption that his “conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689.

         Even if Moss had sufficiently proven deficient performance, he cannot sufficiently prove

prejudice. The state court certainly adjudicated the prejudice prong, concluding that defense

counsel’s failure to follow up on certain inconsistencies between M’s testimony and her


5
  Appellant asks us to conclude that the state court implicitly ruled on the deficiency prong by noting that the
decisions relating to the questioning of witnesses are generally considered matters of trial strategy and then detailing
the extent of trial counsel’s cross-examination of M. We decline to find an implicit ruling because petitioner’s
deficient performance claim nonetheless fails under de novo review.

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statement to the police was unlikely to have affected the outcome of the trial. Thus, the state

court’s analysis is afforded AEDPA deference. The district court afforded the state court’s

ruling no deference, reaching its conclusion that Moss was prejudiced by counsel’s failure to

impeach without even referencing the state court or the reasonableness of its ruling. However,

“an unreasonable application of federal law is different from an incorrect application of federal

law.” Williams, 529 U.S. at 410. While the district court may believe that the state court’s

ruling was incorrect, neither it nor the Petitioner has shown that the state court’s ruling was

unreasonable in light of Supreme Court precedent. Given the depth of the cross-examination and

counsel’s repeated reference to inconsistencies in M’s story, the state court’s ruling that

additional questions regarding M’s inconsistences were unlikely to have impacted the outcome

was not “so lacking in justification that there was an error well understood and comprehended in

existing law beyond the possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

Because Petitioner has not made a sufficient showing under Strickland to warrant habeas relief

for ineffective assistance relating to his counsel’s cross-examination of M, we reverse the ruling

of the district court on this issue.

            d) District Court’s Grant of Relief On All of Petitioner’s Convictions

        Finally, Appellant contests the district court’s decision to grant habeas relief for all of

Moss’ convictions. Appellant contends that if relief is warranted, it should be limited to M’s

convictions relating to M on the grounds that any prejudice related to M did not undermine the

convictions related to K.        Petitioner argues that the cases were linked together by the

prosecution. Because we have reversed the district court’s grant of habeas relief regarding both

counsel’s failure to investigate Alliston and counsel’s failure to impeach M on inconsistencies

between her trial testimony and the police report, we decline to address the question of whether


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the district court inappropriately granted habeas relief for the claims related to Moss’ conduct

with K as well as M.

                                       V. CONCLUSION

        Because the district court failed to apply the appropriate standard, we reverse the grant of

habeas relief. The state court was not unreasonable in determining that the absence of Novella

Alliston’s testimony did not prejudice Moss’ defense. Nor was the state court unreasonable in

determining that trial counsel’s failure to further question M regarding inconsistencies in her

statements did not affect the outcome of the trial. For these reasons, habeas relief is not

warranted. We REVERSE.




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