                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0726n.06

                                            No. 08-2319                                   FILED
                                                                                      Nov 05, 2009
                           UNITED STATES COURT OF APPEALS
                                                                                LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


AARON BYRD,                                        )
                                                   )
       Petitioner-Appellee,                        )
                                                   )
v.                                                 ) ON APPEAL FROM THE UNITED
                                                   ) STATES DISTRICT COURT FOR THE
JAN TROMBLEY, Warden,                              ) EASTERN DISTRICT OF MICHIGAN
                                                   )
       Respondent-Appellant.                       )
                                                   )
                                                   )

Before: MOORE, GIBBONS, and FRIEDMAN,* Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. The State of Michigan appeals the district

court’s grant of the writ of habeas corpus to petitioner-appellee Aaron Thomas Byrd following his

conviction and appeal in state court for criminal sexual conduct involving a victim under the age of

thirteen. Finding that the state courts had unreasonably applied clearly established federal law

defining ineffective assistance of counsel, the district court held that Byrd’s counsel provided

ineffective assistance on three grounds: (1) failing to object to the introduction of, and introducing

himself, Byrd’s prior conviction for aiding and abetting forgery, which was arguably inadmissible

under Michigan Rule of Evidence 609(c); (2) failing to object to the prosecution’s attempt to

characterize Byrd during closing argument using “bad man” evidence; and (3) failing to present

expert testimony to counter the prosecution’s experts. For the following reasons, we affirm.

       *
       The Honorable Daniel M. Friedman, Senior Circuit Judge of the United States Court of
Appeals for the Federal Circuit, sitting by designation.
                                                 I.

       The facts in this case arise from Byrd’s third trial – the first two resulted in hung juries.

Byrd’s stepdaughter, T.R.,1 was seven years old when the alleged assault took place. According to

T.R., Byrd would occasionally shower with her in the mornings after her mother left the house. T.R.

testified that, on one occasion, she accompanied Byrd into the bedroom he shared with her mother,

where he sexually assaulted her by touching her genitalia and having vaginal intercourse with her.

       After T.R.’s allegations, Byrd informed a doctor that T.R. had a yellow discharge and had

been touched in her genital area. Upon the doctor’s recommendation, Byrd and T.R.’s mother

reported the allegations. The State of Michigan brought charges against Byrd.

       During the trial, prosecutors called as witnesses T.R.; Dr. Randy Haugen, a psychologist; and

Dr. Steven Guertin, a pediatrician. During her testimony, T.R. “would often freeze, blank out” and

pause for long periods of time while speaking. Dr. Haugen testified that T.R.’s responses and

reactions on the witness stand were consistent with someone who had suffered from sexual abuse.

Defense counsel did not present any expert testimony but was able to elicit statements from Dr.

Haugen that T.R.’s responses could also be consistent with someone who was lying.

       Dr. Guertin testified that when he examined T.R., he noticed a very deep, v-shaped notch in

her hymen. Dr. Guertin determined that the injury was anywhere from one week to one year old and

was consistent with genital-to-genital contact. While he acknowledged that there were other possible




       1
       In accordance with Federal Rule of Criminal Procedure 49.1(a), we redact the name of a
minor and will refer to her by her initials.

                                                 2
causes for the injury, including an accident, Dr. Guertin testified that the most common cause was

sexual contact.

       Byrd testified on his own behalf at trial and denied all allegations of sexual assault against

him. He acknowledged that he occasionally helped T.R. rinse her hair when she was showering and

her mother was not there, but he denied showering with her. Byrd testified that T.R. blamed him for

the assault because he spanked her for lying on an unrelated occasion. According to Byrd, T.R.

apologized to him after she made the allegations. He further explained that T.R.’s injury was likely

caused by a bicycle accident. Defense counsel introduced Byrd’s prior conviction for aiding and

abetting forgery in 1989, which the prosecution then referred to during closing arguments.

       On November 8, 2002, Byrd was convicted by a jury of first degree criminal sexual conduct

involving a victim under the age of thirteen, in violation of Michigan Compiled Laws §

750.520b(1)(A). On December 5, 2002, he was sentenced to a term of ten to twenty-five years’

imprisonment. Byrd appealed his conviction to the Michigan Court of Appeals and filed a motion

for a new trial in the trial court, alleging ineffective assistance of counsel. After an evidentiary

hearing, the trial court denied Byrd’s motion for a new trial. The Michigan Court of Appeals

affirmed Byrd’s conviction, and the Michigan Supreme Court denied Byrd’s subsequent application

for leave to appeal.

       Byrd filed a petition for a writ of habeas corpus in the United States District Court for the

Eastern District of Michigan, alleging ineffective assistance of counsel on the basis of counsel’s 1)

failure to object to the introduction of Byrd’s ten-year-old forgery conviction; 2) failure to object to

the prosector’s use of the conviction as “bad man” evidence during closing arguments; and 3) failure


                                                   3
to investigate and present an expert witness to counter the prosecution’s witnesses. Adopting the

magistrate judge’s report and recommendation, the district court granted the petition for the writ of

habeas corpus based on all three grounds of ineffective assistance of counsel. The State appealed

to this court, claiming that the district court erred by granting Byrd habeas relief.

                                                  II.

       We review de novo a district court’s decision to grant a petition for the writ of habeas corpus

based on ineffective assistance of counsel. See Avery v. Prelesnik, 548 F.3d 434, 436 (6th Cir.

2008). We review findings of fact by the district court for clear error unless the district court’s

factual determinations are based only on a review of the state court transcript, in which case they are

reviewed de novo. See Dando v. Yukins, 461 F.3d 791, 796 (6th Cir.2006). Unless they are rebutted

by clear and convincing evidence, we presume factual determinations by a state court to be correct.

28 U.S.C. § 2254(e)(1).

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district

court may only grant a writ of habeas corpus to a state prisoner when: (1) the state court’s decision

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) the state court’s decision “was based

on an unreasonable determination of the facts in light of the evidence presented in the State court

proceedings.” 28 U.S.C. § 2254(d).

       Under the “contrary to” clause, a federal court may grant habeas relief if the state court

reaches a decision opposite to that reached by the Supreme Court on a question of law, or if the state

court rules differently than the Supreme Court on materially indistinguishable facts. See Boykin v.


                                                  4
Webb, 541 F.3d 638, 642 (6th Cir. 2008) (citing Williams v. Taylor, 529 U.S. 362, 412-13 (2000)

(O’Connor, J. for the Court)). Under the “unreasonable application” clause, a federal court may

grant the writ if the state court identifies the correct legal rule from Supreme Court precedent but

unreasonably applies the rule to the facts in the petitioner’s case. Williams, 529 U.S. at 413.

Furthermore, the district court cannot issue the writ under the “unreasonable application” clause

merely because it concludes that the state court incorrectly or erroneously applied clearly established

federal law; it may only grant habeas relief when the erroneous application is also objectively

unreasonable. See Rompilla v. Beard, 545 U.S. 374, 404 (2005). In analyzing whether a state court

decision is an “unreasonable application” of Supreme Court precedent, we must base our decision

solely on the holdings of the Supreme Court, not its dicta or the holdings of courts of appeals.

Williams, 529 U.S. at 412 (O’Connor, J. for the Court).

       In order to obtain habeas relief, Byrd must thus demonstrate that the state court’s decision

that his counsel was not ineffective was contrary to, or an unreasonable application of, Supreme

Court precedent. Byrd’s claim rests squarely on the Supreme Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984), which created a two-part test for determining whether counsel’s

assistance was ineffective:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the ‘counsel’ guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. To demonstrate ineffectiveness, Byrd “must show that counsel’s representation fell below

an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice, Byrd “must show

                                                  5
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Smith v. Mitchell, 567 F.3d 246, 257 (6th Cir.

2009) (quoting Strickland, 466 U.S. at 694).

       In this case, the State appeals the district court’s determination that Byrd was denied his

constitutionally guaranteed right to effective assistance of counsel when his lawyer: (1) introduced

and failed to object to Byrd’s prior conviction for aiding and abetting forgery; (2) failed to object to

the prosecution’s use of “bad man” character evidence during closing arguments; and (3) failed to

present expert testimony countering the experts proffered by the prosecution. We find that habeas

relief was properly granted on the first claim. We need not address whether the district court

properly granted habeas relief on claims two and three.

       “The proper measure of attorney performance remains simply reasonableness under

prevailing professional norms.” Strickland, 466 U.S. at 688. “Prevailing norms of practice as

reflected in American Bar Association standards . . . for Criminal Justice . . . are guides to

determining what is reasonable. . . .” Id.; see also Franklin v. Anderson, 434 F.3d 412, 429 (6th Cir.

2006). According to the American Bar Association (“ABA”) Criminal Justice Section Standards,

defense counsel should “inform[] himself or herself fully on the facts and the law” before advising

the accused. ABA Standards for Criminal Justice 4-5.1(a) (3d ed. 1993); see also United States v.

Williams, 358 F.3d 956, 962 (D.C. Cir. 2004) (applying ABA Criminal Justice Section Standard 4-

5.1(a) as a measure of professional norms in an ineffective assistance of counsel claim).

Furthermore, “[d]efense counsel should not knowingly and for the purpose of bringing inadmissible


                                                   6
matter to the attention of the judge or jury offer inadmissible evidence. . . .” ABA Standards for

Criminal Justice 4-7.5(b). The question is thus whether defense counsel reasonably informed

himself as to the admissibility of Byrd’s prior forgery conviction before introducing it at trial and

whether Byrd has overcome the strong presumption that the act in question was part of “sound trial

strategy.” Strickland, 466 U.S. at 689.

        Michigan Rule of Evidence 609(a)(1) allows the admission of prior convictions for “crime[s]

contain[ing] an element of dishonesty or false statement.” Because Byrd’s prior conviction for

forgery contains an element of dishonesty or false statement, it would normally be admissible at his

trial. However, Michigan Rule of Evidence 609(c) (“Rule 609(c)”) provides that “[e]vidence of a

conviction . . . is not admissible if a period of more than ten years has elapsed since . . . the release

of the witness from the confinement imposed for that conviction. . . .” Therefore, Byrd’s prior

forgery conviction was admissible at trial to challenge Byrd’s credibility only if Byrd’s release from

confinement occurred within ten years of the trial testimony. Mich. R. Evid. 609(c). Byrd was

released from prison on October 7, 1992, after serving three years’ imprisonment for aiding and

abetting forgery. Byrd testified in his trial for criminal sexual assault on November 7, 2002, ten

years and one month after his release from prison. Had Byrd’s attorney researched the facts and law

concerning Byrd’s prior conviction, he likely would have objected to the introduction of the prior

conviction as inadmissible, and certainly would not have introduced the conviction himself. Byrd’s

attorney admitted during the Ginther hearing2 that raising the conviction himself was an “oversight”



        2
        In Michigan, a Ginther hearing is an evidentiary hearing regarding a claim of ineffective
assistance of counsel. See People v. Ginther, 212 N.W.2d 922, 924 (Mich. 1973).

                                                   7
and not part of a trial strategy. He further acknowledged that the prior conviction is “something [he]

normally would have objected to.” (Ginther Hearing Tr. at 7.)

        The State argues that although Byrd was released from prison in 1992, over ten years before

the trial, he was restricted by an electronic tethering system, requiring him to be at home between

midnight and 4:00 a.m., until 1994. No Michigan court has ruled directly on the issue of whether

electronic tethering constitutes “confinement” for purposes of Rule 609(c). Noting the lack of state

law on the issue, the Michigan trial court correctly determined that a dispositive resolution of the

meaning of confinement was unnecessary at that stage. Instead, the state trial court properly

identified the relevant issue as whether defense counsel was ineffective by failing to raise the

possibility that the evidence could be inadmissible. The trial court then determined that the lack of

a definitive answer on the meaning of confinement in appellate precedent justified Byrd’s counsel’s

failure to raise the issue during trial:

        Given the lack of clarity and the apparent absence of any appellate law on this issue,
        can it be said that trial defense counsel’s failure to raise this issue constitutes
        incompetence - performance below the standard expected of a criminal attorney?
        This Court concludes it does not, particularly when defendant’s present counsel, even
        while arguing for a finding of trial counsel’s incompetence, acknowledges that the
        law doesn’t provide any definitive answer to the question.


People v. Byrd, No. 01-2857 FC, slip op. at 6 (Mich. Cir. Ct. Sep. 25, 2003). On appeal, the

Michigan Court of Appeals upheld the trial court’s determination, concluding that “it was arguable

that the evidence could have been admitted over a defense objection. Defense counsel’s performance

cannot be deemed deficient for failing to advance a novel legal argument.” People v. Byrd, No.

245624, 2004 WL 1801036, at *4 (Mich. Ct. App. Aug. 12, 2004) (emphasis added).


                                                  8
       We find that an argument against the admissibility of a prior conviction is anything but novel.

Indeed, the specific issue of whether release on a tether constitutes “confinement” under Michigan

law is itself far from novel. As the Michigan Court of Appeals recognized, a long line of Michigan

cases in other contexts has “interpreted the term ‘confinement’ narrowly, and [has] determined that

placement on the tether program is not the equivalent of confinement in prison or jail.” Id. at *2

(citing People v. Britt, 509 N.W.2d 914 (Mich. Ct. App. 1993); People v. Reynolds, 489 N.W.2d 128

(Mich. Ct. App. 1992); People v. Smith, 489 N.W.2d 135 (Mich. Ct. App. 1992); People v. Wagner,

485 N.W.2d 133 (Mich. Ct. App. 1992); People v. Granquist, 454 N.W.2d 207 (Mich. Ct. App.

1990)). Furthermore, all federal courts to have addressed “confinement” under the analogous

Federal Rule of Procedure Rule 609(b) (“Rule 609(b)”)3 have read the rule narrowly and

unanimously concluded that “confinement” is limited to actual imprisonment. See, e.g., United

States v. Nguyen, 542 F.3d 275, 279 (1st Cir. 2008) (non-jail sentence was not confinement and thus

the prior conviction was inadmissible); United States v. Rogers, 542 F.3d 197, 198 (7th Cir. 2008)

(“We conclude that probation does not constitute ‘confinement’ within the meaning of Rule

609(b).”); see also United States v. Wallace, 848 F.2d 1464, 1472-73 (9th Cir. 1988) (holding that

reconfinement pursuant to revocation of parole based upon a non-substantively related charge was

not “confinement” for purposes of Rule 609(b)).



       3
         The pertinent text of Rule 609(b) states: “Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for that conviction, whichever is the later date,
unless the court determines, in the interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Fed.
R. Evid. 609(b) (emphasis added).

                                                 9
       Thus, at the very least, Byrd had a strong argument that the prior conviction was

inadmissible. Byrd is therefore not alleging ineffective assistance of counsel based on a novel

reading of the relevant law or a fanciful argument that counsel should have raised at trial. His claim

is that counsel was ineffective for introducing a prior conviction that counsel should have been

attempting to suppress. As noted above, there is significant Michigan case law, as well as relevant

federal law, to suggest that confinement under Michigan Rule of Evidence 609 should only refer to

the period of incarceration and not tethering. While we recognize that the resolution of this legal

issue is for the Michigan courts to decide, we find that defense counsel’s performance was deficient

because he introduced and failed to object to the previous conviction despite its potential

inadmissibility. See Glenn v. Sowders, No. 85-5754, 1986 WL 18475, at *3 (6th Cir. Dec. 8, 1986)

(“Because petitioner’s prior . . . conviction was not admissible, defense counsel’s decision to

disclose the conviction falls outside the wide range of professionally competent assistance.” (internal

quotation marks and citation omitted)).4


       4
        We note that the record indicates that Byrd’s attorney may have been strategically
introducing the conviction himself before the prosecution could use it to discredit Byrd:

               Q.      . . . Were you convicted of something?
               A.      Yes, I was.
               Q.      What were you convicted of?
               A.      Convicted of aiding and abetting forgery.
               Q.      All right. When was that?
               A.      In September, of ‘89.
               Q.      Were you guilty of that?
               A.      Yep, I knew that I was aiding it.
               Q.      Did you plead to it?
               A.      We pled guilty.
               Q.      You pled guilty because you were guilty?
               A.      I was guilty. . . .

                                                  10
        In order to obtain habeas relief for ineffective assistance of counsel under Strickland, Byrd

must show not only that defense counsel’s performance was deficient but also that Byrd was

prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 687; Mason v. Mitchell, 543

F.3d 766, 780 (6th Cir. 2008). The standard set forth in Strickland for prejudice sufficient to warrant

relief for ineffective assistance of counsel is a middle ground between two extremes. Strickland, 466

U.S. at 693-94. The standard does not require a showing that it is more likely than not that the

outcome of the case would have been different had counsel provided effective assistance. Id. at 694.

However, the petitioner cannot simply show that counsel’s error had “some conceivable effect on

the outcome. . . .” Id. at 693. Instead, the Strickland standard for prejudice requires that Byrd

demonstrate a reasonable probability sufficient to undermine the verdict. Id. at 694.




                Q.      This accusation that you molested a girl under the age of
                        13, you pled not guilty.
                A.      Yes, I did.
                Q.      Is that because you are not guilty?
                A.      I am not guilty.

(Trial Tr. Vol. I at 115.) Byrd’s attorney seems to have been attempting to present his client to the
jury as a credible man who pleads guilty when he is guilty, and who would have pled guilty in this
instance if he were in fact guilty. This tactic of reducing the negative implication of a prior
conviction by framing it first themselves, in the light most favorable to the client, is a valid and
effective tool of criminal defense attorneys. The application of such a mitigation strategy in this
case, however, would have been unnecessary had Byrd’s attorney known the relevant law. Instead
of attempting to reduce the impact of the prior conviction on his client’s credibility, Byrd’s attorney
should have been vehemently arguing against the prior conviction’s admissibility as evidence in the
first place. Failing to object to potentially inadmissible evidence, even if part of a defense plan, does
not shield counsel from a claim of ineffective assistance based on “strategy.” See Martin v. Rose, 744
F.2d 1245, 1249 (6th Cir. 1984) (“[E]ven deliberate trial tactics may constitute ineffective assistance
of counsel if they fall ‘outside the wide range of professionally competent assistance.”’ (quoting
Strickland, 466 U.S. at 690)); James v. United States, 217 F. App’x 431, 436 (6th Cir. 2005).

                                                   11
       Here, we believe that there is a reasonable probability that, but for counsel’s introduction and

failure to challenge the admissibility of Byrd’s forgery conviction, the jury would have found Byrd

not guilty. The jury’s verdict of whether Byrd was guilty of criminal sexual assault depended almost

entirely on whose version of the facts the jurors believed. While both sides presented testimony

about the relationship between T.R. and Byrd and the events prior to and after the alleged assault,

the only evidence that Byrd committed a crime was T.R.’s testimony. Likewise, the only direct

evidence presented that Byrd did not commit the crime was his own testimony at trial. Because the

outcome turned on the jury’s determination of whose testimony was more credible, there is a

reasonable probability that Byrd’s prior conviction affected the jury’s opinion of his credibility and,

accordingly, the verdict. See, e.g., United States v. Sims, 588 F.2d 1145, 1150 (6th Cir. 1978)

(holding that, when a previous trial had resulted in a hung jury and the defendant’s “credibility was

essentially the whole case,” the introduction of defendant’s prior convictions discredited defendant’s

testimony and led to a guilty verdict). Thus, there is a reasonable probability that defense counsel’s

introduction of, and failure to object to, Byrd’s prior conviction – when credibility was essentially

Byrd’s entire defense – affected the outcome of the trial. As the two prior hung juries indicate, the

case before the jury was extremely close. We therefore find that Byrd was prejudiced by counsel’s

deficient performance and that the Michigan courts’ decision to the contrary was an unreasonable

application of Supreme Court precedent. See Rompilla, 545 U.S. at 404. Accordingly, we affirm

the district court’s grant of habeas relief to Byrd on the ground that counsel provided ineffective

assistance by introducing and failing to object to Byrd’s prior conviction as evidence.

                                                  III.


                                                  12
       For the foregoing reasons, we affirm the district court’s grant of habeas corpus to Byrd.

Consistent with the district court’s order, the state of Michigan has 120 days from the issuance of

our mandate to either retry or release Byrd.




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