           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Barnes v. Elo                               No. 01-2026
        ELECTRONIC CITATION: 2003 FED App. 0279P (6th Cir.)
                    File Name: 03a0279p.06                               Appellant. Raina I. Korbakis, STATE OF MICHIGAN,
                                                                         DEPARTMENT OF ATTORNEY GENERAL, HABEAS
                                                                         CORPUS DIVISION, Lansing, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                           ON BRIEF: Kenneth P. Tableman, FEDERAL PUBLIC
                                                                         DEFENDERS OFFICE, Grand Rapids, Michigan, for
                  FOR THE SIXTH CIRCUIT                                  Appellant. Raina I. Korbakis, STATE OF MICHIGAN,
                    _________________                                    DEPARTMENT OF ATTORNEY GENERAL, HABEAS
                                                                         CORPUS DIVISION, Lansing, Michigan, for Appellee.
 STEWART BARNES,                  X
          Petitioner-Appellant, -                                          DUPLANTIER, D. J., delivered the opinion of the court, in
                                   -                                     which BATCHELDER, J., joined. MERRITT, J. (pp. 14-17),
                                   -   No. 01-2026                       delivered a separate dissenting opinion.
            v.                     -
                                    >                                                         _________________
                                   ,
 FRANK ELO , Warden,               -
          Respondent-Appellee. -                                                                  OPINION
                                                                                              _________________
                                  N
       Appeal from the United States District Court                        DUPLANTIER, Senior District Judge. After an evidentiary
    for the Eastern District of Michigan at Ann Arbor.                   hearing following remand by this court, the district court
     No. 97-60150—George C. Steeh, District Judge.                       dismissed the petition of Stewart Barnes for habeas corpus
                                                                         relief pursuant to 28 U.S.C. §2254. Barnes appeals, urging
                    Argued: March 27, 2003                               that his convictions must be vacated because his trial counsel
                                                                         rendered ineffective assistance with respect to his state court
              Decided and Filed: August 8, 2003                          convictions. For the following reasons, we AFFIRM.

 Before: MERRITT and BATCHELDER, Circuit Judges;                            Petitioner is a state court prisoner who, following a bench
         DUPLANTIER, Senior District Judge.*                             trial, was convicted of one count each of breaking and
                                                                         entering with intent to commit criminal sexual conduct,
                      _________________                                  assault with intent to commit second degree criminal sexual
                                                                         conduct, and felonious assault. The trial judge sentenced
                           COUNSEL                                       petitioner to three concurrent sentences: six to fifteen (15)
                                                                         years on the breaking and entering count, three to five years
ARGUED: Kenneth P. Tableman, FEDERAL PUBLIC                              on the assault with intent to commit second degree criminal
DEFENDERS OFFICE, Grand Rapids, Michigan, for                            sexual conduct count, and two and a half to four years on the
                                                                         felonious assault count.

    *
     The Honorable Adrian G. Duplantier, Senior United States District
Judge for the Eastern District of Louisiana, sitting by designation.

                                  1
No. 01-2026                                 Barnes v. Elo      3    4     Barnes v. Elo                                No. 01-2026

                    RELEVANT FACTS                                  call any medical witnesses to testify concerning his physical
                                                                    limitations.
   The victim, who was 12 at the time of the offense, testified
that she went to bed at 3:30 a.m. on July 29, 1990; she was                          PROCEDURAL HISTORY
sharing a bed with a younger sister and brother. The victim
awoke when she felt a man kissing the side of her face. She            Petitioner’s attempts in state court to challenge his
struggled with her attacker; during the struggle he inflicted       convictions are summarized in our prior opinion, Barnes v.
a serious cut on each of her arms. When the victim’s sister         Elo, 231 F.3d 1025, 1027-28 (6th Cir. 2000). In the state
began screaming, the attacker left the room. The victim saw         court proceedings, in support of his contention that trial
"[h]im run down the stairs," "limping on one leg"; he "ran          counsel rendered ineffective assistance by failing to call
out" the front door.                                                medical witnesses to testify concerning his physical
                                                                    condition, petitioner submitted an affidavit by Dr. William
   Almost immediately, the police developed a composite             Waring, his treating physician. In the affidavit Dr. Waring
"picture" of the assailant from a description by the victim.        stated that "he had not been contacted by Barnes’s trial
Within several days of the attack, the victim advised the           counsel, that he would have been available to testify, and that
investigating officer that her assailant had a limp. During the     he would have testified that Barnes was physically unable to
ensuing investigation, the victim viewed a large number of          run down the stairs and out the door as complainant testified
"mugshots," a photo line-up, and a live line-up; she did not        her assailant had done." Id. at 1027.
make any identifications during those sessions.              No
photographs of petitioner were among those shown to the                After failing to obtain relief in the state courts, petitioner
victim by the police, nor did petitioner participate in the live    filed a federal petition for post-conviction relief, asserting
lineup at that time. About six months after the attack, while       that his trial counsel rendered ineffective assistance and that
complainant was at a bus stop, she saw petitioner walking in        he was denied due process as a result of prosecutorial
the area and recognized him as the man who attacked her. On         misconduct. The district judge denied relief on all grounds
the next day an investigating officer established surveillance      and granted petitioner a certificate of appealability limited to
of the bus stop. The victim identified the suspect by a hand        the contention of ineffective assistance of counsel.
signal, and the investigating officer arrested Barnes.
Thereafter, the victim viewed a line-up in which petitioner           On appeal, this court ordered the matter remanded for an
participated; the victim identified petitioner as her attacker.     evidentiary hearing on the issue of the competence of trial
                                                                    counsel, concluding that "[i]t is unclear from the record
  At trial the parties stipulated that Barnes suffers from post-    whether or to what extent trial counsel investigated Barnes’s
polio syndrome and wears a brace on his leg. No additional          medical condition, and why he failed to contact Dr. Waring.
medical evidence was presented at trial.                            Absent an evidentiary hearing and clear findings of fact, it is
                                                                    impossible to determine whether trial counsel’s failure to
  In post-conviction proceedings before the state court and         investigate and call Dr. Waring was sound trial strategy."
the federal district court, petitioner asserted several grounds     Barnes v. Elo, 231 F.3d at 1029.
for habeas relief. In this appeal, he raises only one issue: that
his trial counsel rendered ineffective assistance by failing to
No. 01-2026                                Barnes v. Elo         5   6      Barnes v. Elo                              No. 01-2026

              THE EVIDENTIARY HEARING                                      ....
   Upon remand the district judge conducted an extensive                   [B]ased on my review of his medical records there
evidentiary hearing, which included testimony regarding trial              was damaging information in this record that would
counsel’s failure to call medical witnesses. Marvin Barnett,               support some of the allegations that the complainant
Barnes’s trial counsel, testified at length. Despite a diligent            had made. The eleven year old girl had indicated
search, Barnett was unable to locate his file concerning the               that the person ran with a limp, and that although
trial, which had occurred more than nine years before the                  there was no question or need to establish that he
hearing. Barnett admitted that he was unfamiliar with the                  could not run like a normal person, there were things
specifics of post-polio syndrome but stated that he knew                   in his record and his past employment that defeated
petitioner had a physical disability, walked with braces, and              our argument, and so it wasn’t as though we simply
walked with a "significant gait." Prior to the trial Barnett               ignored medical witnesses but as an experienced
reviewed Dr. Waring’s medical records, which petitioner                    attorney I was trying to give the Defendant the
provided to him. Barnett also testified that prior to trial he             benefit of everything positive in the record without
spoke with someone knowledgeable about petitioner’s                        the negatives associated with other things that were
medical condition; however, he was unable to recall with                   in his record.
whom he spoke. Barnett did not dispute Dr. Waring’s
testimony that Barnett had not spoken to him.                        Barnett opined that the trial judge "certainly understood,
                                                                     regardless of the specific nature of his condition, that it
  Barnett testified that he had recommended that the defense         certainly mitigated against him running in the matter [sic] as
pursue a mis-identification theory of defense. Additionally,         it appeared and the complainant testified to." Barnett
he stated that the medical condition was important and that it       testified that petitioner agreed to the entry of the stipulation
was part of the defense. He testified:                               as to his medical condition in lieu of live testimony.
  I advised [petitioner] that it would be in his best interest         On cross-examination Barnett provided the following
  to allow the parties to stipulate to his medical condition         additional detail regarding his concern about the information
  without calling witnesses to testify as to his medical             contained in the medical record.
  condition because, my recollection was, that those same
  medical records which indicated he had a pre-existing                  [B]ut we’ve got an allegation that somebody is climbing
  medical condition, also indicated that [at] some point in              into a house and the idea that somebody at any point was
  his life that he was a house painter or something and he               a house painter concerned me, and I also remember there
  played basketball, not withstanding [sic] the fact that he             being something in there about him being able to play
  had a gait in his walk, that he does move around, so we                basketball. Now, I don’t suspect he could have, you
  were trying to avoid all the negligence [sic] inferences               know, pushed the ball down the floor or pushed through
  that could be drawn from his medical records while at the              the lane and did a slam dunk, but the mere fact that you
  same time preserving for the trier of fact all positive                can even play basketball at any point mitigates against
  inferences that may have been drawn from his medical                   not being able to get down some flights of stairs.
  records.
No. 01-2026                               Barnes v. Elo      7    8      Barnes v. Elo                                No. 01-2026

Barnett was concerned that a medical witness would testify on        The district judge credited Barnett’s testimony that he
cross-examination that "[petitioner] had some mobility and        concluded (and so advised petitioner) that the best course of
that the witness would have to testify that he could move         action was to enter into a stipulation concerning petitioner’s
around quickly if he had to, and that he moved with a limp.       medical condition as well as Barnett’s testimony that "he
My concern would be that the witness would establish exactly      believed the trial judge understood that the condition
the opposite that we do not want to establish and undermine       mitigated against running."         We accord considerable
whatever mileage we thought we were going to get out of the       deference to the credibility determinations of the district
stipulation."                                                     judge. See United States v. Navarro-Camacho, 186 F.3d 701,
                                                                  705 (6th Cir. 1999) (citing United States v. Cooke, 915 F.2d
   Petitioner introduced Dr. Waring’s deposition into evidence    250, 252 (6th Cir. 1990)). The district judge concluded that
at the evidentiary hearing. r. Waring testified that petitioner   the medical records and the potential medical testimony
had post-polio syndrome, would have had difficulty going          "included damaging information concerning defendant’s
down a stairway, and would have "a very herky jerky sort of       capabilities and was less than compelling." He concluded that
motion going down the stairs." He conceded, however, that         trial’s counsel’s performance was not deficient and that
someone who lacked medical knowledge could describe               petitioner sustained no significant prejudice as a result of trial
petitioner’s abnormal movement going down the stairs as a         counsel’s "decisions concerning medical evidence."
"limp." In commenting on the statement in his affidavit that
"Barnes was physically unable to run down the stairs and out                        STANDARD OF REVIEW
the door as complainant testified her assailant had done, " Dr.
Waring testified that in making that statement he assumed           In reviewing the denial of a petition for post-conviction
that the victim’s reference to "run" meant a fast run. Dr.        relief under 28 U.S.C. §2254, we review the legal conclusions
Waring testified that petitioner could not "run" with both feet   de novo; findings of fact are reviewed for clear error.
off the ground at the same time and opined that petitioner        Matthews v. Abramajtys, 319 F.3d 780, 787 (6th Cir. 2003).
could not physically run "anywhere close to normal gait,
normal gait speed." Dr. Waring testified that petitioner’s                                 DISCUSSION
ability to move quickly was impaired and estimated that
petitioner "moved a third or a fourth of normal running speed       The Antiterrorism and Effective Death Penalty Act of 1996,
with the defects." However, he acknowledged that petitioner       ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
could move faster than his normal walking speed if he so          which amended 28 U.S.C. §2254, governs this federal habeas
desired.                                                          corpus review of a state court conviction.

  At the evidentiary hearing on remand, petitioner testified        Title 28 U.S.C. §2254(d)(1)-(2) mandates that claims
that he could not run with both feet off the ground. He stated    adjudicated on the merits in state court proceedings, such as
that Barnett had advised him that medical witnesses would         petitioner’s claim of ineffective assistance of counsel, are
testify during the trial. Petitioner also testified that he       subject to the following standards of review:
exhibited his leg to the state judge during his trial, and that
the trial judge observed his movements in the courtroom.              (d) An application for a writ of habeas corpus on behalf
                                                                      of a person in custody pursuant to the judgment of a State
                                                                      court shall not be granted with respect to any claim that
No. 01-2026                                 Barnes v. Elo      9    10   Barnes v. Elo                                No. 01-2026

  was adjudicated on the merits in State court proceedings          filed. People v. Barnes, No. 153885 (Mich. Ct. App. March
  unless the adjudication of the claim—                             2, 1995). In these unusual circumstances, a federal court has
                                                                    no alternative but to conduct an independent review of the
  (1) resulted in a decision that was contrary to, or               claim, because there is no foundation in the state court
  involved an unreasonable application of, clearly                  proceedings for AEDPA deference. See McKenzie v. Smith,
  established Federal law, as determined by the Supreme             326 F.3d 721, 727 (6th Cir. 2003).
  Court of the United States; or
                                                                      In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
  (2) resulted in a decision that was based on an                   80 L.Ed.2d 674 (1984), the Supreme Court established a two
  unreasonable determination of the facts in light of the           prong test for evaluating claims of ineffective assistance of
  evidence presented in the State court proceeding.                 counsel: a defendant seeking relief must demonstrate that
                                                                    counsel’s performance was deficient and that the deficient
  A claim of ineffective assistance of counsel presents a           performance prejudiced the defense. With regard to the
mixed question of fact and law; we therefore apply the              performance prong, "the defendant must show that counsel’s
"unreasonable application" prong of §2254(d)(1). Hunt v.            representation fell below an objective standard of
Mitchell, 261 F.3d 575, 580 (6th Cir. 2001). A state court          reasonableness." Id. at 687- 88, 104 S.Ct. at 2064. It is well
unreasonably applies Supreme Court precedent "if the state          established that "[j]udicial scrutiny of counsel’s performance
court identifies the correct governing legal rule . . . but         must be highly deferential." Id. at 689, 104 S.Ct. at 2065.
unreasonably applies it to the facts of the particular prisoner’s   "A fair assessment of attorney performance requires that
case." Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct.             every effort be made to eliminate the distorting effects of
1495, 1521 (2000). However, a federal court may not grant           hindsight, to reconstruct the circumstances of counsel’s
a writ of habeas corpus "simply because that court concludes        challenged conduct, and to evaluate the conduct from
in its independent judgment that the relevant state-court           counsel’s perspective at the time." Id. There is a strong
decision applied clearly established federal law erroneously        presumption that an attorney’s performance "falls within the
or incorrectly. Rather, that application must also be               wide range of reasonable professional assistance." Id., 104
unreasonable." Id. at 411, 120 S.Ct. at 1522.                       S.Ct. at 2065. "[T]he defendant must overcome the
                                                                    presumption that, . . . the challenged action might be
  Typically, in reviewing a state court’s denial of a state         considered to be sound trial strategy." Id. (quoting Michel v.
prisoner’s request for post-conviction relief we accord             Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed.2d
deference to the state court’s decision.. 28 U.S.C. §2254d.         83 (1955)).
However, as noted in our prior opinion (Barnes v. Elo, 231
F.3d at 1027-28), in ruling on petitioner’s motion to remand          In order to satisfy the prejudice requirement, "[t]he
for an evidentiary hearing and on the merits of the ineffective     defendant must show that there is a reasonable probability
assistance claim related to the failure to call medical             that, but for counsel’s unprofessional errors, the result of the
witnesses, the Michigan state court of appeals apparently           proceeding would have been different. A reasonable
failed to consider Dr. Waring’s affidavit, which had been filed     probability is a probability sufficient to undermine confidence
by petitioner. Indeed, in considering the merits of that claim      in the outcome." Strickland v. Washington, 466 U.S. at 694,
the state court relied upon what it perceived to be a failure on    104 S.Ct. at 2068. If the defendant makes an insufficient
the part of petitioner to file the affidavit which he had in fact   showing on either component of the ineffective assistance of
No. 01-2026                                 Barnes v. Elo     11    12    Barnes v. Elo                                 No. 01-2026

counsel inquiry, it is not necessary to examine the remaining       perspective at the time of trial, as Strickland requires us to do,
prong of the test. Strickland v. Washington, 466 U.S. at 697,       we cannot conclude that counsel’s strategy was unreasonable.
104 S.Ct. 2069.                                                     Barnett’s decision to rely on the stipulation rather than call a
                                                                    medical witness was not deficient.
      FAILURE TO CALL MEDICAL WITNESSES
                                                                      Having concluded that trial counsel’s failure to call a
   Mr. Barnett’s strategic decision to enter into the stipulation   medical witness did not constitute deficient performance, we
concerning petitioner’s medical condition rather than call          need not address the prejudice prong of Strickland.
medical witnesses was not deficient. Dr. Waring’s testimony         Nevertheless, we note that in any event petitioner was not
does not establish that petitioner could not have entered the       prejudiced by the lack of a medical witness. The victim
house, assaulted the victim, and escaped in the manner              positively identified petitioner as her attacker. The trial judge
described by the victim. Rather, his testimony simply               characterized the victim as "a thoughtful, honest, careful
negates the possibility that petitioner could "run" normally,       witness" and credited her identification of petitioner. More
i.e., with both feet off the ground at the same time, or that he    specifically, the trial judge, acutely aware of the "overall
could "run" at a speed approximating that of someone who            dangers inherent in eyewitness identification" noted that the
could "run" normally. The significance of that testimony is         victim’s description of her assailant "fits the defendant to a
minimal. There was no testimony at the trial that the attacker      tee [sic]." In characterizing the composite of the assailant
"ran" like a normal person. To the contrary, the victim             produced by police based on the victim’s description the trial
testified that the man "was limping on one leg" as he "ran"         judge stated "it’s not only a likeness, it is the defendant . . .
down the stairs. Dr. Waring also testified that an individual       There are striking similarities and it’s the closest match of any
lacking medical knowledge could describe petitioner’s gait          composite I’ve ever seen."
going down the stairs as a "limp."
                                                                      Additionally, the following statement by the trial judge
  Petitioner focuses too narrowly on the victim’s use of the        makes it clear that despite the lack of a medical witness, the
word "run." "Run" is an imprecise word subject to numerous          judge was aware of petitioner’s disability and of counsel’s
personal interpretations. It is reasonable to conclude that the     argument that petitioner was not able to perform the activities
young victim’s description of her attacker’s movements              described by the prosecution’s witnesses.
would not be precise. She saw him for only a brief period of
time and under extremely stressful circumstances.                     [I]t’s the defense that’s offered as well and the
                                                                      suggestion that because of the physical condition of the
  Additionally, there were sound tactical reasons not to call         defendant it was impossible for him to commit the crime.
Dr. Waring as a witness. The personal history provided to Dr.         But the interesting thing about that is that the
Waring indicated that petitioner had played basketball and            complainant herself in reporting to the police as her
that he had previously worked as a house painter.                     assailant was leaving, she saw the limp. That’s part of
Petitioner’s past participation in those activities would             her description as well to the police.
undoubtedly have undercut an inference that his physical
limitations would have prevented him from climbing through            Okay, I mean, he [is] trying to say hey, she’s wrong and
a window to enter the victim’s house and fleeing down the             that’s she got the wrong guy, and look, she says I ran.
stairs. Evaluating counsel’s trial strategy based on his              But it’s not only that she says he ran out of the house
No. 01-2026                                Barnes v. Elo     13    14   Barnes v. Elo                                No. 01-2026

  after she was finally able to scream. She reports the limp                             ______________
  to the police as part of the description she gives to the
  police, a description of which fit the defendant to a T,                                  DISSENT
  and she identifies the defendant as the person.                                        ______________
   The fact-finder had the opportunity to observe petitioner’s       MERRITT, Circuit Judge, dissenting. Counsel has a duty
leg and brace as well as his ability to move. Petitioner’s         to undertake a reasonable investigation into his client’s case
physical disability was obvious. The trial judge, having           and background before making strategic legal decisions to
observed both the victim and the petitioner, was in the best       give up a defense. The failure to investigate and present
position to evaluate the victim’s testimony that her attacker      available evidence about Barnes’ medical condition, which
"ran" down the stairs and determine whether petitioner was         requires that Barnes wear a leg brace and results in an
capable of that activity. Expert testimony concerning post-        abnormal gait, is particularly egregious in this case. The
polio syndrome and the resulting limitations on petitioner’s       defense in this case was primarily mistaken identity; and,
physical abilities would have shed little light on the relevant    given all the evidence, it seems doubtful that Barnes was the
issue, i.e. whether petitioner, in escaping the scene of a         perpetrator.
serious crime, could hurriedly negotiate his way down a set of
stairs and exit the house. The medical testimony would also           Barnes suffers from postpolio syndrome, a recently-
have included the fact that petitioner had engaged in activities   identified condition affecting people after they have recovered
such as house painting and playing basketball. There is no         from polio myelitis. The condition results in fatigue and
reasonable likelihood that such testimony would have created       muscle weakness, both in the parts of the body affected by the
a reasonable doubt in the mind of the trial judge that             polio and sometimes in other muscle groups as well. As a
petitioner could not have been the perpetrator because he          result of this condition, Barnes wears a brace on his right leg,
could not have "run" from the scene, as described by a             which he was wearing when arrested. The brace keeps his leg
frightened twelve year old girl who was bleeding profusely         straight and makes him walk in a type of swinging gait that
from the severe cuts inflicted upon her.          There is no      involves his whole body. To bend his knee, Barnes must
reasonable probability that but for counsel’s failure to call a    unlock the brace. He describes his condition as not a limp,
medical witness the result of the trial would have been            but a “paralytic abnormal gait.” Dr. Waring, one of Barnes’
different.                                                         physicians, explained in his deposition for the evidentiary
                                                                   hearing in federal court that Barnes’ gait is “grossly
                       CONCLUSION                                  abnormal” and he leans excessively from side to side when he
                                                                   moves. Waring Dep. J.A. at 614-18.
   The judgment of the district court dismissing petitioner’s
motion for post-conviction relief pursuant to 28 U.S.C. §2254        Barnes argues that he was denied effective assistance of
is AFFIRMED.                                                       counsel because trial counsel failed adequately to investigate
                                                                   the medical facts about postpolio syndrome and its effect on
                                                                   Barnes’ physical abilities. Barnes’ counsel admitted at the
                                                                   evidentiary hearing that he knew very little about Barnes’
                                                                   postpolio syndrome and yet he failed to investigate Barnes’
                                                                   medical records, talk to Barnes’ doctor about the condition or
No. 01-2026                                Barnes v. Elo     15    16   Barnes v. Elo                                No. 01-2026

otherwise inform himself generally about the condition and its     for Barnes physically to commit the crime as described in the
specific effect on Barnes. He could not describe postpolio         testimony. For example, the victim described the intruder as
syndrome; he had not gone over the medical records with a          “running away” and she testified that she saw him “run”
medical professional who could explain them to him; and he         down the stairs. The victim’s mother also testified that she
admitted that he talked very little with Barnes about the effect   didn’t get a look at him or catch him because he was “so
of the condition on Barnes’ physical abilities. J.A. at 524-35.    fast.” Additionally, in the initial report given to the police,
Barnes’ counsel testified that by making the stipulation to the    the victim did not mention a limp, altered gait or leg brace,
postpolio syndrome, he believed he was getting the “benefits”      despite the fact that the medical evidence shows that Barnes’
of the condition without dwelling on the “negatives” (as he        gait is noticeably awkward. If the victim watched her
called them) of the record. It is doubtful that the judge even     assailant retreat down the hallway, go down the stairs and out
understood what “postpolio syndrome” was. It was never             the door as she says she did, the extremely abnormal gait or
explained on the record. Without knowing about the                 limp should have been obvious and noteworthy. Presentation
condition and its effects on Barnes, counsel simply could not      of medical evidence that Barnes could not have “run away” as
make a reasoned strategic decision about whether or how to         described or that his gait would have been very distinctive
use the information at trial.                                      would have cast doubt on the victim’s testimony.
                                                                   Investigating this situation thoroughly was essential to a
   Counsel failed to obtain an opinion from any medical            constitutionally adequate defense. That did not happen.
professional before trial on whether Barnes was able to
perform the physical acts necessary to break into the house           To establish a violation of the Sixth Amendment right to
through a small basement window, the point of entry                effective assistance of counsel, a defendant must demonstrate
according to police testimony. Nor was there any medical           that counsel’s representation fell below “an objective standard
proof about how Barnes was able to run away from the scene         of reasonableness” and that the defendant was prejudiced by
in the manner described by the victim. Without this                the ineffective assistance of counsel.           Strickland v.
knowledge, or at least an opinion, counsel could not make a        Washington, 466 U.S. 668, 687 (1984). The defendant “must
competent strategic decision on whether the information            show that there is a reasonable probability that, but for
would have been helpful. As a result, the only evidence in the     counsel’s unprofessional errors, the result of the proceeding
record concerning the condition is a stipulation that defendant    would have been different. A reasonable probability is a
wears a brace and that he suffers from postpolio syndrome.         probability sufficient to undermine confidence in the
There is no attempt to explain the condition or its effects on     outcome.” Id. at 694. Strickland specifically addresses the
Barnes in the record. Although counsel argues that he made         duty to investigate all aspects of a client’s case, stating that
a strategic decision that the stipulation would be the best way    strategic decisions can occur only after counsel makes a
to minimize the “negatives” concerning Barnes’ physical            “thorough investigation of law and facts relevant to plausible
condition, including discussion of some of Barnes’ past            options.” Id. at 690. A decision not to investigate cannot be
physical activities, counsel could not have made an informed       deemed reasonable it if is uninformed. Id. at 691. In short,
strategic decision without making further inquiry into             “counsel has a duty to make reasonable investigations or to
available information.                                             make a reasonable decision that makes particular
                                                                   investigations unnecessary.” The holding in Strickland
  Had Barnes’ counsel talked to Dr. Waring, he would have          concerning counsel’s duty to investigate a defendant’s
discovered that it would have been difficult, if not impossible,   background was reaffirmed in the Supreme Court’s recent
No. 01-2026                               Barnes v. Elo     17

decision in Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003),
where the Court explained that Strickland “defined the
deference owed such strategic judgments in terms of the
adequacy of the investigations supporting those judgments”
and emphasized that the focus in failure to investigate claims
is “whether the investigation supporting counsel’s decision
. . . was itself reasonable.” Id. This kind of investigation
simply did not occur.
  The second prong under Strickland requires us to examine
whether counsel’s deficient performance prejudiced
defendant. A defendant must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. A
defendant must demonstrate that “counsel’s errors were
serious enough to deprive [him] of a proceeding the result of
which was reliable.” Glenn v. Tate, 71 F.3d 1204, 1210 (6th
Cir. 1995). Barnes was clearly prejudiced by his counsel’s
failure to investigate his medical condition and present
evidence of that condition when it would have likely raised a
reasonable doubt about Barnes’ guilt. For the foregoing
reasons, I respectfully dissent.
