                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 07a0224p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                               X
                                       Petitioner-Appellant, -
 PATRICO RAMONEZ,
                                                                -
                                                                -
                                                                -
                                                                    No. 06-1852
               v.
                                                                ,
                                                                 >
 MARY BERGHUIS,                                                 -
                                       Respondent-Appellee. -
                                                               N
                                Appeal from the United States District Court
                               for the Eastern District of Michigan at Detroit.
                              No. 05-71488—George C. Steeh, District Judge.
                                             Argued: May 30, 2007
                                      Decided and Filed: June 18, 2007
         Before: DAUGHTREY and MOORE, Circuit Judges; SHADUR, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Jacqueline J. McCann, STATE APPELLATE DEFENDER OFFICE, Detroit, Michigan,
for Appellant. Raina I. Korbakis, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellee. ON BRIEF: Jacqueline J. McCann, STATE APPELLATE DEFENDER OFFICE,
Detroit, Michigan, for Appellant. Raina I. Korbakis, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        SHADUR, District Judge. Patrico Ramonez (“Ramonez”) appeals the district court’s denial
of his petition for a writ of habeas corpus naming his custodian, Mary Berghuis (“Berghuis”), as
respondent. Ramonez is in custody pursuant to a conviction in Michigan state court. As he did on
direct appeal, Ramonez argues that his trial counsel W. Frederick Moore (“Moore”) failed to
investigate and call at trial three witnesses to the alleged crime, Charles Tames (“Charles”), Rene
Tames (“Rene”) and Joel “Big Bun” Hackett (“Hackett”). Ramonez asserts that Moore’s
performance was thus constitutionally deficient, prejudicing his defense in violation of the Sixth
Amendment (as applied to the states through the Fourteenth).


         *
          The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by
designation.


                                                           1
No. 06-1852                Ramonez v. Berghuis                                                                      Page 2


        Both the state trial court and the Michigan Court of Appeals found that Moore’s
representation of Ramonez met the constitutional standard for effective assistance of counsel set out
by Strickland v. Washington, 466 U.S. 668 (1984). Because it is clear that the Michigan Court of
Appeals’ application of the Strickland standard for a defense counsel’s duty to investigate was
unreasonable, we reverse the judgment of the district court and remand with instructions to grant a
conditional writ of habeas corpus.
                                                     Background
       On March 13, 2001 a Michigan state jury convicted Ramonez of third-degree home invasion
(Mich. Comp. Laws §750.110a(4)),1 assault with intent to do great bodily harm (id. §750.84) and
aggravated stalking (id. §750.411h). Those convictions arose from a complaint by Christina Fox
(“Fox”), Ramonez’s ex-girlfriend and mother of two of his children.
        Fox testified at trial2 that at 4:30 or 5 a.m. April 21, 2000 she and the two children were
asleep in the living room of her house when she heard a knock on the door. After cracking the front
door, Fox saw that it was Ramonez knocking. As her relationship with Ramonez had been violent
and they had separated some years earlier, Fox became frightened upon seeing Ramonez and
attempted to slam the door shut. Ramonez, however, forced the door open, knocking Fox to the
ground in the process.
        According to Fox, she then found herself lying on the floor between the foyer and the living
room, where Ramonez pinned her down, began to strangle her and threatened her life. By kicking
Ramonez, Fox was able to free herself and take off running for the front door before he punched her
again, knocking her over. Fox was nonetheless able to make it out to her front porch. Once outside
she encountered Charles, Rene and Hackett at the bottom of the stairs to her porch. Attempting to
flee, Fox lost her footing and fell on the stairs. Ramonez again pinned her to the ground, while one
of the other three covered her mouth to muffle her screaming. Finally the3 altercation ended after
Fox saw lights go on nearby, and the four men let her go and drove away.
         After the prosecution rested, Ramonez and Moore brought before the judge their
disagreement as to Moore’s decision not to call any witnesses on Ramonez’s behalf and Ramonez’s
intention to testify despite Moore’s advice. Ramonez wanted to call Charles, Rene and Hackett to
testify to his story of what happened that day. Ramonez complained that he had4 told Moore about
those witnesses months earlier, but Moore had failed to communicate with them. Moore stated that
it was his strategic decision not to call any witnesses, and the judge decided he was disinclined to
interfere with counsel’s judgment.
     With no other witnesses in his defense, Ramonez felt compelled to testify on his own behalf.
Ramonez testified that on the day in question he did go to Fox’s house to check on his children. He


        1
           In that respect the indictment had charged Ramonez with the more serious offense of first degree home
invasion (id. §750.110a(2)).
        2
           Both this and the next paragraph set out the version of events as recounted by Fox, without the need for
constant repetition of “according to Fox” or like language.
        3
          At trial the prosecution buttressed that testimony by Fox with the responding police officer’s testimony
regarding bruising to Fox’s neck and shoulder as well as evidence of prior alleged incidents of domestic abuse by
Ramonez against Fox. Additionally the prosecution offered testimony by Fox regarding later harassing phone calls by
Ramonez to support the stalking charge.
        4
            Ramonez also wished to call his sisters as witnesses, but that issue is not furthered on this appeal.
No. 06-1852           Ramonez v. Berghuis                                                     Page 3


claimed that Fox voluntarily invited him into her house, but once inside Ramonez did not see his
kids and, believing that Fox appeared to be high, he became angry. Ramonez then pushed her
against a wall--but he denied choking her--and Fox took off running out the front door. She then
fell on the front steps, where Rene attempted to help her to her feet. Fox then ran off.
        After the jury’s guilty verdict, the trial court sentenced Ramonez to concurrent terms of 2
to 10 years for the home invasion conviction, 12 to 20 years for the assault charge and 2 to 10 years
for the aggravated stalking conviction. Ramonez appealed on ineffective assistance of counsel
grounds, asserting Moore’s failure to investigate and to call Rene, Charles and Hackett. To facilitate
the evaluation of that claim, the Michigan Court of Appeals remanded the case to the district court
for an evidentiary hearing.
        At the hearing Moore testified that he was aware of Rene, Charles and Hackett prior to trial,
but he never made contact with them. Moore defended his decision not to call them based on what
he characterized as his trial strategy to focus on the action inside Fox’s home. He believed that the
three witnesses could not testify to that action because they were never inside the house. Moore’s
plan had been to rely on cross-examination to point out discrepancies in Fox’s story and discredit
her testimony. Even so, Moore did attempt to reach Charles (but only Charles) just three or four
days before trial, but he did not succeed in speaking with him--the two simply exchanged phone
messages.
        Each of Charles, Rene and Hackett testified at that hearing. Charles is Ramonez’s son, Rene
his stepson and Hackett an acquaintance of the three other men from work. Each testified that the
three were driving in a car with Ramonez on the night in question, ultimately arriving at Fox’s
house. There was some inconsistency in their testimony: Rene remembered stopping at a bar first,
while Charles did not remember if they made any other stops and Hackett’s recollection was that
they did not make any other stops. Each then testified that he observed Ramonez go up to Fox’s
front door, where Fox then invited him inside (each affirmatively stated that Ramonez did not force
his way into the house).
        All three witnesses testified that even from their vantage point in the car they could see the
interaction between Ramonez and Fox inside the house through the doorway--only Hackett allowed
that he may have lost sight of them for some two minutes. Each said that he witnessed yelling and
a physical altercation between Fox and Ramonez, but that Ramonez did not choke or punch Fox.
All testified that the three men got out of the car and went up to Fox’s porch where the altercation
was continuing outside the house. Their stories differed somewhat as to what then occurred outside
the house, with Hackett simply saying that Fox ran off, Rene remembering Fox falling and one of
them helping her up and Charles remembering having words with Fox and attempting to help her
off the ground before she fled. All three affirmed that they would have been willing to testify even
if the prosecutor had threatened to charge them as accessories to the crime.
        At the conclusion of the hearing the trial court denied the motion for a new trial on
ineffective assistance of counsel grounds. Applying state law that mirrors the two-step Strickland
analysis, the court found Moore’s decision not to call the witnesses reasonable because of his trial
strategy to focus on what occurred inside the house and his expectation that the witnesses could not
offer competent testimony in that regard, due to what he thought was their limited vantage point
outside the house. And as to prejudice, the trial court found that Hackett “was not a particularly
helpful witness” and that Rene was an “incredible witness,” so that the witnesses’ testimony could
not have changed the outcome of the trial.
        As to Ramonez’s ineffective assistance of counsel claims, the Michigan Court of Appeals
affirmed the trial court’s judgment on essentially the same reasoning (other claims made at the state
level are not the subject of this federal habeas effort). Ramonez’s application for leave to appeal to
No. 06-1852               Ramonez v. Berghuis                                                     Page 4


the Michigan Supreme Court was denied, making that intermediate appellate court opinion the 5final
state court decision on his claims. On the ensuing collateral attack under 28 U.S.C. §2254, the
district court below rejected Ramonez’s petition for a writ of habeas corpus, finding that the
Michigan Court of Appeals’ decision was at least a reasonable application of Strickland. On August
14, 2006 the district court granted Ramonez’s motion for a certificate of appealability to this Court.
                                                 AEDPA6 Review
        We review de novo a district court’s denial of a writ of habeas corpus (Dando v. Yukins,
461 F.3d 791, 795-96 (6th Cir. 2006)). And where as here the district court has reviewed only trial
transcripts and other court records, any factual determinations by the district court are also reviewed
de novo (id.).
        Federal court examination of a habeas petition by a prisoner in custody pursuant to a state
court judgment is circumscribed by AEDPA, in this instance more specifically under this part of
Section 2254(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
       was adjudicated on the merits in State court proceedings unless the adjudication of
       the claim --
                  (1) resulted in a decision that was contrary to, or involved an unreasonable
                  application of, clearly established Federal law, as determined by the Supreme
                  Court of the United States....
Under that first “contrary to” clause of Section 2254(d)(1), we may grant the writ only if the state
court decision was based on a conclusion of law opposite to that reached in Supreme Court
precedent (Dando, 461 F.3d at 796). And as to the other alternative, Williams v. Taylor, 529 U.S.
362, 413 (2000) teaches:
       Under the “unreasonable application” clause, a federal habeas court may grant the
       writ if the state court identifies the correct governing legal principle from [the
       Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
       prisoner’s case.
To issue a writ on that ground, the federal court must find the state court’s application of Supreme
Court precedent “objectively unreasonable,” not merely “incorrect or erroneous” (Wiggins v. Smith,
539 U.S. 510, 520-21 (2003)).
        Finally, Section 2254(e)(1) requires us to presume that state court fact determinations are
correct. To overcome that presumption, the statute requires the petitioner to demonstrate any state
court error by clear and convincing evidence.
                         Michigan Court of Appeals’ Application of Strickland
        Strickland, 466 U.S. at 687 sets forth the familiar two-prong test for evaluating a claim of
ineffective assistance of counsel: To prevail the petitioner must establish both (1) that defense


       5
           Further citations to provisions of Title 28 will simply take the form “Section --.”
       6
          Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(1996)(“AEDPA”).
No. 06-1852           Ramonez v. Berghuis                                                       Page 5


counsel’s performance was constitutionally deficient and (2) that the deficient performance
prejudiced the defense sufficiently to undermine the reliability of the trial (id.). That first element
requires the petitioner to “show that counsel’s representation fell below an objective standard of
reasonableness” (Strickland, 466 U.S. at 688), for which purpose we must (id. at 689)(internal
quotation marks omitted)):
       indulge a strong presumption that counsel’s conduct falls within the wide range of
       reasonable professional assistance; that is, the defendant must overcome the
       presumption that, under the circumstances, the challenged action might be
       considered sound trial strategy.
And as to the prejudice element, Strickland, id. at 694 instructs:
       The 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.
        For those purposes Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. 2000) has held that “[b]oth
the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law
and fact.” They are thus not findings of “historical facts” (McGhee v. Yukins, 229 F.3d 506, 513 (6th
Cir. 2000)) that are subject to the Section 2254(e)(1) presumption of correctness for state court
factual findings.
        As Ramonez does not dispute, the Michigan Court of Appeals correctly articulated the
Strickland standard, so there is no issue under AEDPA’s “contrary to” Supreme Court precedent
prong. Hence the only question is whether that court applied the Strickland standard reasonably in
coming to its judgment that Moore’s investigation leading to his decision not to call the three
witnesses, and that decision itself, were sufficient for constitutional purposes.
        On that score Ramonez asserts that Moore’s decision to limit (or more accurately, not to
pursue at all until it was too late) any investigation regarding the three potential witnesses was
objectively unreasonable, leading to an uninformed and therefore unreasonable decision not to call
those witnesses at trial. Strickland, 466 U.S. at 690-91 set forth a defense counsel’s duty to
investigate:
       As the Court of Appeals concluded, strategic choices made after thorough
       investigation of law and facts relevant to plausible options are virtually
       unchallengeable; and strategic choices made after less than complete investigation
       are reasonable precisely to the extent that reasonable professional judgments support
       the limitations on investigation. In other words, counsel has a duty to make
       reasonable investigations or to make a reasonable decision that makes particular
       investigations unnecessary. In any ineffectiveness case, a particular decision not to
       investigate must be directly assessed for reasonableness in all the circumstances,
       applying a heavy measure of deference to counsel’s judgments.
And Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005) dispels any doubt that a lawyer’s Strickland
duty “includes the obligation to investigate all witnesses who may have information concerning his
or her client’s guilt or innocence.”
        In its effort to apply that standard, the district court stated that while it would have found
Moore’s performance deficient due to his failure even to speak with the three witnesses before trial,
it could not say that the Michigan Court of Appeals’ contrary conclusion was an unreasonable
application of Strickland, thus making it unchallengeable under AEDPA. In so finding the district
No. 06-1852           Ramonez v. Berghuis                                                        Page 6


court considered it within reason for the Michigan court to conclude, based on the information
available to Moore before trial and in conformity with his chosen trial strategy, that Moore made
a reasonable professional call not to interview the witnesses and not to call them at trial.
         Even given the required deference to the Michigan Court of Appeals, the district court’s
restraint in those terms does not withstand analysis. As the district court’s opinion makes clear, the
state court focused largely on the notion that Moore’s decision not to call the three witnesses was
rooted in what it perceived to be a reasonable trial strategy--one of focusing on undermining Fox’s
credibility as to what happened between her and Ramonez inside the house--and because the three
witnesses were never inside the house, Moore thought that they could add little to that effort. But
that belief was grounded on a fatally flawed foundation, for if Moore had only engaged in the
minimal--and essential--step of interviewing the witnesses, he would have learned that they could
testify as to what took place in the house, and that their testimony would have supported Ramonez’s
version of events.
        That being so, the state court ignored the central teaching of Strickland, as reaffirmed by
Wiggins, 539 U.S. at 522-23, that the investigation leading to the choice of a so-called trial strategy
must itself have been reasonably conducted lest the “strategic” choice erected upon it rest on a rotten
foundation. Towns, 395 F.3d at 258)(internal quotation marks omitted) made that same point:
       A purportedly strategic decision is not objectively reasonable when the attorney has
       failed to investigate his options and make a reasonable choice between them.
        In evaluating Moore’s decision to limit his investigation as to the three witnesses (or more
precisely, not to investigate them at all), Berghuis contends that the decision not to interview the
witnesses was reasonable in light of Fox’s testimony in the preliminary hearing that the assault
occurred inside the house. On that basis she urges that Moore was justified in concluding, without
bothering to speak to the witnesses, that they would have nothing to add to his case.
         But that argument is at odds with other crucial parts of the record. Months before trial
Ramonez began insisting to Moore that the three witnesses were present at the time and could tell
him what really happened at Fox’s house. At the same preliminary hearing on which Berghuis
relies, Fox testified that Ramonez kicked in her door to gain entry to the house. Such asserted action
was clearly not inside the house, such as to render the observers outside the house unable to verify
or dispute the parties’ divergent versions. Moreover, Fox also testified at that same hearing that
three men witnessed the assault continue outside on her front porch (even stating that one of them
assisted Ramonez by covering her mouth to keep her from yelling). If Moore was seeking to show
that Fox was embellishing her story of the altercation with Ramonez, why would he not also have
found it useful to look into this part of her tale? With such information available to him, how could
he rationally have concluded that neither Charles nor Rene nor Hackett could possibly have anything
to add to Ramonez’s case?
        Of course the answer is he didn’t--at least not entirely. Instead, believing that Charles (at
least) might be able to “shed light on” some fact issues, Moore did attempt to reach him--but only
a few days before trial. Despite months of lead time, Moore just put off the effort until he did not
leave himself enough time to actually reach Charles. At trial Moore had to concede that Charles,
Rene and Hackett could have had something to add:
       I’m not going to say the nature of their testimony would not add. Because that
       suggests they don’t have anything at all to testify to. It’s my opinion that they could
       potentially add some information which would contradict what the complainant has
       testified to.
No. 06-1852                Ramonez v. Berghuis                                                                       Page 7


         Having thus recognized the possibility that the three witnesses could provide testimony
beneficial to Ramonez, it was objectively unreasonable for Moore not to interview them (or at least
make reasonable efforts to interview them) before coming to his ultimate choice of trial conduct (see
Towns, 395 F.3d at 259). In sum, the point is this: Constitutionally effective counsel must develop
trial strategy in the true sense--not what bears a false label of “strategy”--based on what
investigation reveals witnesses will actually testify to, not based on what counsel guesses they might
say in the absence of a full investigation. Moore’s performance fell well on the wrong side of that
line.
        Having thus successfully demonstrated that Moore’s decision to limit his investigation into
the potential testimony of the three witnesses was constitutionally deficient (and that the state court’s
conclusion to the contrary was objectively unreasonable), Ramonez must show a reasonable
probability that but for that deficiency the outcome of the trial would have been different
(Strickland, 466 U.S. at 694). To that end Ramonez points to multiple aspects of the three
witnesses’ testimony at the ineffective assistance of counsel hearing to show that each could have
benefitted his defense materially.
        First, each would have testified that rather than Ramonez forcing his way into Fox’s home,
Fox opened the door and voluntarily invited Ramonez into the house. Such evidence as to
permission to enter the premises would have gone directly toward negating the “breaking and
entering” element of the home invasion crime of which Ramonez was ultimately convicted (see
Mich. Comp. Laws. Ann. §750.110a(1)(c) and 110(a)(4); see also People v. Brownfield, 548 N.W.2d
248, 249-50 (Mich. Ct. App. 1996)). Attacking that element would have been a vital point to focus
on at trial. Indeed, Ramonez points out that the jury likely questioned the breaking and entering
issue: It sent a note to the judge requesting testimony on whether or not Ramonez forced his   way
into the house, then a later note stating that it was deadlocked on the home invasion count.7
         Second, each of the three witnesses testified that despite his position outside the house, he
was able to see most (if not all) of the action between Ramonez and Fox that occurred just inside
the open front door. And third, each of the witnesses was in a position to challenge Fox’s testimony
as to the physical altercation between herself and Ramonez outside the house on the front porch.
With the trial in principal part boiling down to a credibility contest between Fox and Ramonez, there
is at least a reasonable probability that the witnesses’ corroboration of Ramonez’s story and their
contradiction of Fox’s on those points could have influenced the jury.
       In that respect the Michigan Court of Appeals simply observed in perfunctory fashion that
“the three witnesses would not have provided testimony that would have changed the trial’s
outcome.” In spite of the obviously helpful testimony of the three witnesses (if believed by a jury),
Berghuis contends that Section 2254(e)(1) demands that we defer to the Michigan trial court’s
assessment of the lack of credibility and helpfulness of the three witnesses, assertedly undercutting
any reasonable probability that the jury would have altered the verdict based on their testimony. But
Section 2254(e)(1) does not support that proposition.
        Initially, we note that the state trial court made an explicit adverse credibility finding only
as to one of the three witnesses, Rene. Its statement that Hackett was “not a particularly helpful
witness” reads more like an observation on the substance of Hackett’s testimony than a statement
about his credibility. And the court did not even speak about Charles. Nothing more in the state
court opinions can be characterized as factual findings (see Wiggins, 539 U.S. at 530-31). In sum,



         7
            As to the first question the judge properly instructed the jury to rely on its collective memory of the issue, and
as to the second issue the judge provided a standard deadlock instruction.
No. 06-1852              Ramonez v. Berghuis                                                                Page 8


it cannot be said that the state court made a factual determination that would arguably demand
deference from this court as to all three witnesses.
         More importantly, a state court’s blanket assessment of the credibility of a potential
witness--at least when made in the context of evaluating whether there is a reasonable probability
that the witness’s testimony, if heard by the jury, would have changed the outcome of the trial--is
not a fact determination within the bounds of Section 2254(e)(1). After all, what the state court has
really done is to state its view that there is not a reasonable probability that the jury would believe
the testimony and thus change its verdict. And in that regard Barker v. Yukins, 199 F.3d 867, 874
(6th Cir. 1999) has made it clear that our Constitution leaves it to the jury, not the judge, to evaluate
the credibility of witnesses in deciding a criminal defendant’s guilt or innocence. In the context of
deciding whether a defective self-defense jury instruction was harmless error, Barker, id. held that
the state court crossed that line when it found the defective instruction had no consequence because
the jury would not have believed the self-defense testimony of the defendant anyway. Whether to
believe the defendant’s testimony on that score was an issue for the jury and not the judge.
         Our later decisions help demonstrate the difference between such credibility determinations
that are for the jury and those appropriately made by state judges entitled to the Section 2254(e)(1)
presumption. Examples of such deference to a judge’s assessment of credibility of witnesses
include instances where credibility determinations are within a judge’s proper role, such as in
assessing a juror’s impartiality at voir dire (Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003))
or in factual determinations at a Miranda suppression hearing (Hill v. Brigano, 199 F.3d 833, 840-41
(6th Cir. 1999)). Or in the context of a Strickland evidentiary hearing, it is for the judge to evaluate
the credibility of the criminal defendant and the former defense counsel in deciding what advice
counsel had in fact given to the defendant during his trial, and such findings are entitled to the
Section 2254(e)(1) presumption (see Sophanthavong v. Palmateer, 378 F.3d 859, 867 (9th Cir.
2004)).
        Those examples, involving credibility determinations within the judge’s province, are
different in kind from a finding that a jury would not believe a witness’s testimony--what the state
court effectively did here. While there would have been plenty of grist for the cross-examination
mill as to Ramonez’s three witnesses, the question whether those witnesses were believable for
purposes of evaluating Ramonez’s guilt is properly a jury question. As Matthews v. Abramajtys, 319
F.3d 780, 790 (6th Cir. 2003)(emphasis added) has stated:
        The actual resolution of the conflicting evidence, the credibility of witnesses, and the
        plausibility of competing explanations is exactly the task to be performed by a
        rational jury, considering a case presented by competent counsel on both sides.
        In the end, weighing the prosecution’s case against the proposed witness testimony is at the
heart of the ultimate question of the Strickland prejudice prong, and thus it is a mixed question of
law and fact not within the Section 2254(e)(1) presumption. Even though the jury could have
discredited the potential witnesses here based on factors such as bias and inconsistencies in their
respective stories, there certainly remained a reasonable probability that the jury would not have.
Ramonez’s case was therefore prejudiced where their testimony would have helped corroborate his
testimony and contradict that of complaining witness Fox (see Workman v. Tate, 957 F.2d 1339,
1346 (6th Cir. 1992)), but where counsel’s default in carrying out his constitutional obligations
resulted in that testimony not being introduced at trial. All it would have taken is for “one juror [to]
have struck a different balance” between the competing stories (Wiggins, 529 U.S. at 537).8

        8
           Wiggins was a death penalty case in which a single juror’s vote would have spared defendant’s life. In
Ramonez’s case, of course, even a single juror’s holdout would have resulted in a hung jury rather than a conviction,
while a jury’s unanimous striking of “a different balance” would have produced an acquittal.
No. 06-1852           Ramonez v. Berghuis                                                      Page 9


       Berghuis’ remaining arguments in claimed support of the reasonableness of the state court’s
prejudice conclusion may be quickly set aside. Any assertion that Charles, Rene and Hackett would
not have testified on Ramonez’s behalf in any event due to the prosecution’s threat to charge them
as accessories if they showed up to testify is flatly belied by their affirmations under oath that they
would have testified on Ramonez’s behalf--even under threat of prosecution. Finally, despite the
weight of evidence supporting the prosecution’s case, it is simply unreasonable to say that leaving
Ramonez hamstrung without the support of available corroborating witnesses in the swearing contest
between himself and Fox did not prejudice his case. In short, we conclude that the state court’s
judgment to the contrary was an unreasonable application of Strickland.
                                             Conclusion
        Because the Michigan Court of Appeals’ application of the Strickland standard was
objectively unreasonable, the district court erred in failing to grant the writ. We therefore
REVERSE the decision below and REMAND this case to the district court with instructions to grant
a conditional writ of habeas corpus, giving the State of Michigan 120 days within which to provide
Ramonez a new trial or, failing that, to release him.
