        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2     Hargrave-Thomas v. Yukins                    No. 02-2152
    ELECTRONIC CITATION: 2004 FED App. 0208P (6th Cir.)
                File Name: 04a0208p.06                     PROSECUTING ATTORNEY, COUNTY OF WAYNE,
                                                           Detroit, Michigan, for Appellant. Andrea D. Lyon, DePAUL
                                                           UNIVERSITY COLLEGE OF LAW, Chicago, Illinois,
UNITED STATES COURT OF APPEALS                             Bridget M. McCormack, MICHIGAN CLINICAL LAW
                                                           PROGRAM, Ann Arbor, Michigan, for Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                            NELSON, J., delivered the opinion of the court, in which
                                                           COOK, J., joined. CLAY, J. (pp. 14-20), delivered a separate
 KYLLEEN HARGRAVE-                X                        dissenting opinion.
 THOMAS,                           -
                                                                               _________________
          Petitioner-Appellee, -
                                   -  No. 02-2152
                                   -                                               OPINION
           v.                       >                                          _________________
                                   ,
                                   -                          DAVID A. NELSON, Circuit Judge. This is an appeal
 JOAN YUKINS,                      -                       from an order granting a writ of habeas corpus. The key issue
       Respondent-Appellant. -                             is whether the state trial court’s refusal to hold an evidentiary
                                   -                       hearing on certain ineffective assistance claims which the
                                  N                        petitioner had asserted in a timely motion for a new trial
      Appeal from the United States District Court         constituted “cause” for the petitioner’s subsequent failure to
      for the Eastern District of Michigan at Flint.       assert a different ineffective assistance claim in her direct
     No. 00-40171—Paul V. Gadola, District Judge.          appeal. We conclude that the denial of an evidentiary hearing
                                                           on the particular ineffective assistance claims that were
               Argued: October 30, 2003                    asserted initially did not constitute cause for the delay (which
                                                           proved to be fatal) in asserting the new ineffective assistance
            Decided and Filed: July 6, 2004                claim. Accordingly, and because the procedural default
                                                           cannot be excused on other grounds, we shall reverse the
  Before: NELSON, CLAY, and COOK, Circuit Judges.          grant of the writ.

                  _________________                                                        I

                       COUNSEL                                After a bench trial in a Michigan state court, the petitioner,
                                                           Kylleen Hargrave-Thomas, was found guilty of first degree
ARGUED:         Joseph A. Puleo, OFFICE OF THE             murder and arson. The court determined that early one
PROSECUTING ATTORNEY, COUNTY OF WAYNE,                     morning Ms. Hargrave-Thomas entered the home of her
Detroit, Michigan, for Appellant. Andrea D. Lyon, DePAUL   boyfriend while he was sleeping, stabbed him in the heart
UNIVERSITY COLLEGE OF LAW, Chicago, Illinois, for          with a knife she had taken from his kitchen, and set his bed on
Appellee. ON BRIEF: Joseph A. Puleo, OFFICE OF THE         fire. She was sentenced to life in prison.

                            1
No. 02-2152                Hargrave-Thomas v. Yukins         3    4       Hargrave-Thomas v. Yukins                             No. 02-2152

  Ms. Hargrave-Thomas moved for a new trial, arguing,             order her immediate release or, in the alternative, to allow
among other things, she had been denied effective assistance      discovery and to hold an evidentiary hearing.
of counsel by reason of the fact that her trial lawyers had
neglected to move for the suppression of certain evidence and       The state argued, in response, that consideration of the new
had failed to object to alleged prosecutorial misconduct. Ms.     ineffective assistance claim was barred by M.C.R.
Hargrave-Thomas asked the court to hold an evidentiary            6.508(D)(3), Ms. Hargrave-Thomas having failed to establish
hearing if it could not grant the requested relief on the         “good cause” for not raising the claim on appeal and “actual
existing record.                                                  prejudice” resulting from the allegedly ineffective assistance.1
                                                                  Hargrave-Thomas replied that she could not have raised the
  The prosecution opposed the motion and argued that an           failure-to-investigate claim on appeal because the facts
evidentiary hearing was unnecessary. The acts or omissions        supporting that claim were not in the trial record and were not
of counsel cited by Ms. Hargrave-Thomas were already              known to her at the time.
matters of record, the prosecution maintained, and the record
showed they lacked merit. The trial court accepted the              The trial court denied the motion for relief from judgment
prosecution’s argument and denied the motion for a new trial      on both procedural and substantive grounds. First, the court
without conducting an evidentiary hearing.                        held that Ms. Hargrave-Thomas “fail[ed] to establish ‘good
                                                                  cause’ for not raising” the new ineffective assistance claim on
   Ms. Hargrave-Thomas then appealed her conviction,              appeal. The court then addressed the merits of the claim and
asserting the same ineffective assistance claims she had raised   rejected it on the ground that an attorney’s failure to
in her motion for a new trial. She also moved for a remand to     investigate “do[es] not constitute ineffective assistance of
the trial court for an evidentiary hearing. The state court of    counsel.” The court did not hold an evidentiary hearing.
appeals denied the remand motion “for failure to persuade the
Court of the necessity of a remand at this time.” The court
went on to affirm Ms. Hargrave-Thomas’ conviction, holding
among other things that Hargrave-Thomas had not established
                                                                      1
that she had been prejudiced by the alleged deficiencies in her         M.C.R.6.508(D)(3) provides, in part, that “[t]he court may not grant
lawyers’ performance. The Michigan Supreme Court denied           [post-appeal] relief to the defendant if the motion
Ms. Hargrave-Thomas’ application for leave to appeal.                                                ***
                                                                      “(3) alleges grounds for relief, other than jurisdictional defects,
                                                                      which could have been raised on appeal from the conviction and
   Next, represented by new counsel, Ms. Hargrave-Thomas              sentence or in a p rior motion under this subchapter, unless the
filed a motion with the trial court seeking post-appeal relief        defendant demonstrates
from judgment under Chapter 6.500 of the Michigan Court
Rules. The motion raised a new claim of ineffective                        “(a) good cau se for failure to raise such grounds on
assistance of trial counsel – one that Ms. Hargrave-Thomas                 appeal or in the prior motion, and
acknowledged had not been raised in her motion for a new                   “(b) actual prejudice from the alleged irregularities that
trial or in her appeal. This new claim was based on her trial              supp ort the claim for relief.
counsel’s alleged failure to investigate the case and interview                                       ***
witnesses. Ms. Hargrave-Thomas asked the trial court to               “The court may wa ive the ‘go od cause’ requirement of subrule
                                                                      (D)(3)(a) if it concludes that there is a significant possib ility that
                                                                      the defendant is innocent of the crime.”
No. 02-2152                 Hargrave-Thomas v. Yukins          5    6     Hargrave-Thomas v. Yukins                     No. 02-2152

  Ms. Hargrave-Thomas sought leave to appeal, but both the                                          II
court of appeals and the supreme court denied leave on the
ground that Hargrave-Thomas had failed “to meet the burden             In general, a federal court may not consider a claim for
of establishing entitlement to relief under MCR 6.508(D).”          habeas corpus relief if the claim was procedurally defaulted
                                                                    in state court – i.e., if the last state court to render a judgment
   Ms. Hargrave-Thomas then filed her federal court petition        in the case rejected the claim because it was not presented in
for a writ of habeas corpus. The petition asserted four             accordance with the state’s procedural rules. See, e.g., Harris
grounds for relief, one of which was a tripartite ineffective       v. Reed, 489 U.S. 255, 262 (1989). A procedurally defaulted
assistance claim. The claim was based on (1) trial counsel’s        claim may be considered in federal habeas corpus proceedings
alleged failure to investigate and interview witnesses, (2) the     only if the petitioner either shows “cause” for his failure to
failure to move to suppress evidence, and (3) the failure to        comply with the state’s procedural rules and “prejudice”
object to alleged prosecutorial misconduct. With respect to         resulting from the alleged violation of federal law or shows
the failure-to-investigate branch of the ineffective assistance     that the federal court’s refusal to consider the claim will result
claim, the state responded that the Michigan courts had             in a “fundamental miscarriage of justice.” Coleman v.
rejected the claim on procedural grounds and Ms. Hargrave-          Thompson, 501 U.S. 722, 750 (1991); see, e.g., Harris, 489
Thomas had not shown “cause” for her procedural default.            U.S. at 262.
   Prior to the hearing on Ms. Hargrave-Thomas’ petition, the         The question presented in the case at bar is whether the
district court instructed counsel for both parties to be prepared   district court erred in ruling that “cause” and “prejudice”
to discuss what the court perceived as a “Catch-22.” Because        excused the procedural default of Ms. Hargrave-Thomas’
Ms. Hargrave-Thomas’ requests for an evidentiary hearing            failure-to-investigate claim. The district court’s application
were denied, the court said, she was not able to raise her          of the “cause and prejudice” rules must be reviewed de novo.
failure-to-investigate claim on direct appeal. And because she      See, e.g., Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).
had not raised the failure-to-investigate claim on direct           Because we are reviewing a federal court’s application of
appeal, she was barred from raising it in her collateral            legal rules, and not the state courts’ adjudication of the claim,
proceeding. “It thus appears,” the district court said, that “the   we are not called upon to determine whether any state court
state procedural rules prevented Petitioner from raising her        decision “was contrary to, or involved an unreasonable
failure-to-investigate claim until she reached this Court.”         application of, clearly established Federal law.” 28 U.S.C.
                                                                    § 2254(d). Such a determination would become necessary if
   After argument, the district court concluded that the denial     we were to conclude that the failure-to-investigate claim is
of the requests for an evidentiary hearing constituted “cause”      not procedurally barred – i.e., if we were to reach the merits
for Ms. Hargrave-Thomas’ procedural default. The court              of the claim. For reasons to which we now turn, however, we
further concluded that Hargrave-Thomas was prejudiced by            conclude that Hargrave-Thomas’ claim is procedurally barred.
her trial attorneys’ failure to investigate. The court therefore
ordered that Hargrave-Thomas be granted a new trial or be                                           A
released from custody. (The court rejected Hargrave-
Thomas’ other claims for relief, including the remaining              It seems clear that the last state court to render judgment in
branches of her ineffective assistance claim.) The state has        Ms. Hargrave-Thomas’ case rejected her failure-to-investigate
filed a timely notice of appeal.                                    claim on procedural grounds. Ms. Hargrave-Thomas, it will
No. 02-2152                Hargrave-Thomas v. Yukins          7    8       Hargrave-Thomas v. Yukins                           No. 02-2152

be recalled, did not present the claim on direct appeal before     the denial of Ms. Hargrave-Thomas’ requests for an
raising it in her collateral motion for relief from judgment.      evidentiary hearing constituted “cause” for her failure to raise
That omission violated a state procedural rule, Michigan           the failure-to-investigate claim on direct appeal. This
Court Rule 6.508(D)(3), which generally precludes relief           conclusion, we believe, was erroneous.
from judgment “if the motion . . . alleges grounds for relief,
other than jurisdictional defects, which could have been raised       In People v. Ginther, 212 N.W.2d 922, 925 (Mich. 1973),
on appeal from the conviction and sentence . . . .” The            the Supreme Court of Michigan held that a criminal defendant
Michigan Supreme Court, like the trial court and the court of      should move for a new trial and seek to make a separate
appeals, cited M.C.R. 6.508(D) in rejecting Hargrave-              factual record in the trial court if the trial record does not
Thomas’ failure-to-investigate claim.                              cover the claims he wishes to raise on appeal. Ms. Hargrave-
                                                                   Thomas followed that procedure with respect to her original
   Our precedents establish that the state supreme court’s one-    claims of ineffective assistance – i.e., the claims that her trial
sentence order – an order saying simply that Ms. Hargrave-         attorneys should have moved to suppress evidence and should
Thomas “failed to meet the burden of establishing entitlement      have objected to alleged prosecutorial misconduct. The trial
to relief under MCR 6.508(D)” – “was based on an                   court declined to hold an evidentiary hearing (and the court of
independent and adequate state procedural rule.” Simpson v.        appeals declined to remand for such a hearing), presumably
Jones, 238 F.3d 399, 407 (6th Cir. 2000); cf. Burroughs v.         because the claims then in question could be disposed of on
Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002), modified, 35       the existing record.
Fed. Appx. 402 (6th Cir. 2002). Despite its brevity, the order
constituted a “reasoned” judgment that adequately explained          Ms. Hargrave-Thomas’ position seems to be that she should
its procedural basis. Because the Michigan Supreme Court           have been granted a Ginther hearing to develop an ineffective
“expressly stated” that Hargrave-Thomas’ claim was “barred         assistance claim different from the claims she raised in her
by MCR 6.508(D),” see Simpson, 238 F.3d at 408, the federal        motion for a new trial and on direct appeal. We find no basis
courts may not review that claim absent “cause and prejudice”      for this position in Michigan law. Ginther authorizes the
or a “fundamental miscarriage of justice.” See Harris, 489         creation of a record to support claims which the defendant
U.S. at 262-63.                                                    “wishes to urge on appeal” – not claims which the defendant
                                                                   has expressed no wish to urge on appeal. Ginther, 212
                               B                                   N.W.2d at 925. Neither Ginther nor, to our knowledge, any
                                                                   other Michigan authority permits the use of an evidentiary
   The “cause” standard in procedural default cases “requires      hearing to illuminate claims which have not been asserted or
the petitioner to show that ‘some objective factor external to     to unearth claims of which the defendant may be unaware.2
the defense impeded counsel’s efforts’ to raise the claim in
state court.” McCleskey v. Zant, 499 U.S. 467, 493 (1991)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Such            2
                                                                         Our understanding of Michigan law on this point accords, we
factors may include “interference by officials,” attorney error    believe, with that of the M ichigan Supreme Court. In rejecting Ms.
rising to the level of ineffective assistance of counsel, and “a   Hargra ve-Tho mas’ failure-to-investigate claim on the basis of procedural
showing that the factual or legal basis for a claim was not        default, that court necessarily determined that the refusal to hold a Ginther
reasonably available.” Id. at 493-94 (internal quotation marks     hearing did not constitute “good cause” for the default. See M.C.R.
omitted). As we have seen, the district court concluded that       6.50 8(D )(3). In the Supreme Court’s view, therefore, the trial court was
                                                                   not required to hold a hearing for the purpose of developing unraised
No. 02-2152                      Hargrave-Thomas v. Yukins                 9    10       Hargrave-Thomas v. Yukins                          No. 02-2152

   Had Ms. Hargrave-Thomas raised the failure-to-investigate                      We are not persuaded, in short, that the state courts’ refusal
claim in her motion for a new trial, and had she requested a                    to order a Ginther hearing constituted “cause” for Ms.
Ginther hearing in connection with that claim, we have no                       Hargrave-Thomas’ procedural default. Both “cause” and
reason to suppose that her request would not have been                          “prejudice” must be shown when a habeas petitioner seeks to
granted. Under the circumstances, we believe that it was Ms.                    excuse a procedural default, see Carrier, 477 U.S. at 494-95,
Hargrave-Thomas’ failure to raise the claim, and not any                        so we need not decide whether Hargrave-Thomas has shown
misguided action of the state courts, that caused the                           “prejudice” resulting from her trial attorneys’ alleged failure
procedural default. Ms. Hargrave-Thomas never having                            to investigate. See Smith v. Murray, 477 U.S. 527, 533
alleged ineffective assistance on the part of her post-trial and                (1986).
appellate counsel, this failure does not constitute an
“objective factor external to [her] defense.” Carrier, 477 U.S.                                                     C
at 488.
                                                                                   As we have said, a procedurally defaulted claim may be
  Ms. Hargrave-Thomas contends that she had no way of                           reviewed in habeas proceedings despite the absence of a
knowing about her failure-to-investigate claim when she filed                   showing of “cause” if such review is necessary to avoid a
her new trial motion; she contends, in other words, that “the                   fundamental miscarriage of justice. See, e.g., Coleman, 501
factual . . . basis for [the] claim was not reasonably available”               U.S. at 750. The “fundamental miscarriage of justice” test is
to her at that time. Id. We are not persuaded. Even if                          met only in the “extraordinary case” where “a constitutional
Hargrave-Thomas had no meaningful communication with                            violation has probably resulted in the conviction of one who
her trial attorneys about the preparation of her case, she knew                 is actually innocent.” Carrier, 477 U.S. at 496; see Schlup v.
from her attendance at trial that the attorneys did not call any                Delo, 513 U.S. 298, 321-22 (1995). “To establish the
witnesses – a fact that might easily lead one to suspect                        requisite probability, the petitioner must show that it is more
inadequate preparation. Moreover, the attorney representing                     likely than not that no reasonable juror would have convicted
Ms. Hargrave-Thomas after the trial could have interviewed                      him” in the light of the evidence that was not presented at
the trial attorneys to discover any potential claims.3 And                      trial. Schlup, 513 U.S. at 327.
Hargrave-Thomas was able to raise the failure-to-investigate
claim in her motion for relief from judgment, after all,                          Applying this standard, we are unable to conclude that Ms.
without having had the benefit of an evidentiary hearing.                       Hargrave-Thomas has shown it probable that she is actually
                                                                                innocent.     Hargrave-Thomas relies primarily on five
                                                                                affidavits, each of which was executed about six years after
                                                                                the events at issue.4 None of the affiants testified live at the
                                                                                hearing on the habeas petition.
claims.

    3
      Ms. Hargrave-Thomas contends that her post-trial and appellate                 4
counsel had no duty to investigate potential claims that were not apparent            The district court found these affidavits sufficient to show prejudice
from the trial record. Regardless of whether this contention (which the         resulting from the alleged failure to investigate. Without commenting on
state disputes) is correct, it seems clear that no co urt rule or trial court   that finding, we note that the “fundam ental miscarriage of justice” test
ruling prevented Hargrave-Thom as’ cou nsel from cond ucting such an            requires a petitioner “ to make a stronger showing than that needed to
investigation.                                                                  establish prejudice.” Schlup, 513 U.S. at 327.
No. 02-2152                Hargrave-Thomas v. Yukins        11    12       Hargrave-Thomas v. Yukins                      No. 02-2152

   According to the affidavit of Deborah Smulsky, a co-              There are substantial inconsistencies, however, between
worker, Ms. Hargrave-Thomas said on the day before the            Mr. Sibu’s affidavit – executed six years after the fact – and
murder that the decedent, Joe Bernal, had proposed marriage       statements he made closer in time to the murder and arson.
the previous night. Hargrave-Thomas argues that this              At Ms. Hargrave-Thomas’ preliminary examination, Sibu said
evidence undercuts the prosecution’s theory as to motive –        that he saw a police car and spoke with a police officer at 4:30
namely, that Bernal had spurned Hargrave-Thomas. But there        a.m., and that he was not sure whether that was the day of or
is no necessary conflict between Ms. Smulsky’s testimony          the day after the fire. He also said he was “positive” that Mr.
and the prosecution’s theory. Hargrave-Thomas could have          Bernal’s garage door was closed when he spoke with the
misled Smulsky. Or Bernal could have proposed one day and         officer; in his affidavit he stated that the door was three-
retracted the proposal the next. Because Smulsky’s testimony      quarters open. Moreover, Sibu told police on the day of the
does not compel a finding that Hargrave-Thomas lacked             fire that when he delivered the paper at about 4:30 that
motive, we think a reasonable factfinder could have convicted     morning “there were no cars in the driveway or the street, and
Hargrave-Thomas despite the new evidence.                         he didn’t notice anything unusual.” Presented with these
                                                                  inconsistencies, a reasonable juror could easily find Mr.
  Ms. Hargrave-Thomas’ sons, Nathan and John, said in their       Sibu’s latest account unpersuasive.
affidavits that their mother awoke them on the day of the
murder at 6:15 a.m. and 6:30 a.m. respectively, and that she         In sum, we cannot say that “no juror, acting reasonably,
seemed to be behaving normally then. Dennis Hewitt,               would have voted to find [Ms. Hargrave-Thomas] guilty” in
Nathan’s guidance counselor, similarly swore that Hargrave-       the light of the proffered affidavits. Schlup, 513 U.S. at 329.
Thomas was not upset or agitated when she met with him            The other evidence cited in Hargrave-Thomas’ brief – none
between 7:30 and 8:00 that same morning. This evidence            of which directly exculpates her – also fails to compel a
might have aided the defense at trial by showing that             finding of actual innocence.5 We conclude that the
Hargrave-Thomas was calm and composed within an hour or           “miscarriage of justice” exception does not excuse Hargrave-
two after Mr. Bernal’s bed is thought to have been set on fire.   Thomas’ procedural default.
Calmness does not always mean innocence, however, and the
probative value of this evidence, we believe, falls short of        The order granting Ms. Hargrave-Thomas’ petition for a
what is required.                                                 writ of habeas corpus is REVERSED, and the case is

   Finally, Wesley Sibu, a newspaper delivery person, stated
in his affidavit that he saw “a man in a uniform” – possibly a
policeman or fire-fighter – at Mr. Bernal’s house at 4:30 on           5
the morning of the murder. The man told him that there had              M s. Hargrave-Thomas points to a polygraph test flunked by her
been a fire, but Mr. Sibu did not see any police cars or fire     former boyfriend, Bob Stone. The results of that test indicate that Mr.
                                                                  Stone answered one or more of the fo llowing questions untruthfully:
trucks. These facts could suggest that the “man in a uniform”     (1) Do you know for sure who killed Joe? (2) Did you kill Jo e? (3 ) Did
was the perpetrator. The district court found Sibu’s affidavit    you assist in any way to cover up this crime? (4) Are you withholding
“especially significant” because other evidence suggested that    from me any information concerning the death of Joe? (All of Stone’s
another potential suspect, Ms. Hargrave-Thomas’ former            answers were “no.”) Because the test did not determine which of the
boyfriend, “may have been falsely representing himself as a       questions were answered untruthfully, this evid ence does not directly
                                                                  exculpate Hargrave-Thom as. It could prove nothing more, for example,
police officer.”                                                  than that Hargrave-Thomas confessed to Stone.
No. 02-2152           Hargrave-Thomas v. Yukins   13   14       Hargrave-Thomas v. Yukins                         No. 02-2152

REMANDED to the district court for entry of an order                            ________________
dismissing the petition.
                                                                                    DISSENT
                                                                                ________________

                                                         CLAY, Circuit Judge, dissenting. The question before this
                                                       Court is whether the district court erred in ruling that there
                                                       was cause and prejudice to excuse the procedural default of
                                                       Petitioner’s ineffective assistance of counsel claim. In
                                                       analyzing that claim, we must consider whether the trial court
                                                       erred in denying Petitioner’s three requests for evidentiary
                                                       hearings, which were needed to determine whether facts
                                                       existed to support the failure-to-investigate element of
                                                       Petitioner’s ineffective assistance of counsel claim. Because
                                                       Petitioner successfully established cause and prejudice to
                                                       overcome her procedurally defaulted claim, albeit through the
                                                       district court’s evidentiary hearing, I would affirm the grant
                                                       of Petitioner’s writ of habeas corpus.
                                                         Since a petitioner can generally demonstrate cause if she
                                                       can present a substantial reason to excuse the default, Rust v.
                                                       Zent, 17 F.3d 155, 161 (6th Cir. 1994), a showing of such
                                                       cause must ordinarily turn on whether the petitioner can
                                                       establish that some objective factor external to the defense
                                                       impeded counsel’s efforts to comply with the state’s
                                                       procedural rule. Murray v. Carrier, 477 U.S. 478, 486-89
                                                       (1986). Here, Petitioner argues that she was prohibited from
                                                       asserting her ineffective assistance of counsel/failure-to-
                                                       investigate claim on direct appeal since factual support was
                                                       lacking in the trial record. During Petitioner’s direct appeal,
                                                       she moved for a Ginther hearing three times, all which were
                                                       denied.1 Because those hearings were denied, the direct


                                                            1
                                                             Under Ginther, the Michigan Supreme Court requires a defendant
                                                       on direct appeal to request an evidentiary hearing in the state trial court
                                                       when it intends to raise ineffective assistance of counsel and lacks the
                                                       factual supp ort in the record. People v. Ginther, 212 N.W.2d 922, 925
                                                       (Mich. 1973 ).
No. 02-2152                Hargrave-Thomas v. Yukins        15    16    Hargrave-Thomas v. Yukins                    No. 02-2152

appeal was limited to the issues contained in the trial record,   when an ineffective assistance of counsel claim arises. See
which excluded Petitioner’s failure-to-investigate claim. Id.;    People v. Barnett, 414 N.W.2d 378, 382 (Mich. App. Ct.
see also People v. Avant, 597 N.W.2d 864, 870 (Mich. Ct.          1978) (holding that the “Court will not ‘second-guess’ matters
App. 1999).                                                       of trial strategy, nor assess the competency of counsel through
                                                                  the use of hindsight”); see also United States v. Brown, 276
  During proceedings in connection with Petitioner’s habeas       F.3d 211, 217-18 (6th Cir. 2002) (deferring a review of an
petition in federal district court, the court allowed time for    ineffective assistance of counsel claim to a post conviction
additional discovery and an evidentiary hearing. After            proceeding when looking to dismiss a federal conviction,
additional testimony and argument, the district court found       where the record was not adequately developed). This Court
that Petitioner’s counsel was “manifestly and flagrantly          has previously recognized the importance of the development
ineffective for failure to investigate or call witnesses or       of a full record when assessing an ineffective assistance of
present evidence.” At trial, Petitioner’s defense counsel,        counsel claim. Smith v. Hofbauer, 312 F.3d 809, 821, n.2
Rene Cooper, and co-counsel, Nicholas Venditelli, received        (citing Ginther for the proposition that “a defendant who
no compensation for Petitioner’s case. The defense did not        wishes to advance claims that depend on matters not of the
present a theory of the case, made no opening statement and       record can properly be required to seek at the trial level an
put forth no evidence. During closing arguments, attorney         evidentiary hearing for the purpose of establishing his claim
Cooper stated that the prosecution’s proof amounted to            . . . except in the rare case where the record manifestly shows
nothing more than innuendos and speculation, and thus             that the judge would refuse a hearing; in such a case the
formed an insufficient basis upon which to find petitioner        defendant should seek on appeal, not a reversal for his
guilty. However, defense counsel subsequently conceded that       conviction, but an order directing the trial court to conduct the
the prosecution had proven that “the opportunity was there,”      needed hearing”). This was precisely the district court’s logic
when referring to Petitioner’s alleged involvement in the         in granting Petitioner time for discovery prior to its ruling on
crime.                                                            her habeas petition.
  An ineffective assistance of counsel claim can supply the          Had any one of Petitioner’s three Ginther hearing requests
cause that, together with prejudice, would excuse a procedural    been granted, there is a substantial likelihood that Petitioner’s
default. Murray, 477 U.S. at 488. It is apparent from the         ineffective assistance of counsel claim would have revealed
record that Petitioner’s trial counsel was inadequate and         the ineffective assistance of counsel received by Petitioner as
ineffective, which should have been reasonably apparent to        a result of Petitioner’s trial attorney’s complete failure to
the trial court, or any reviewing court. The state court may      properly investigate defense witnesses and cross-examine
have had insufficient evidence of ineffective assistance of       prosecution witnesses. The reason these facts were not
counsel to grant relief to Petitioner, but certainly had a        uncovered until the district court’s evidentiary hearing was
sufficient basis to grant a Ginther hearing.                      because of the improvident reasoning and decisions of the
                                                                  state court, which deemed Petitioner’s ineffective assistance
  Although once a defendant asserts a claim of failure-to-        of counsel claims to be without merit. The Respondent and
investigate upon direct appeal, a Ginther hearing is warranted,   the majority opinion inappropriately speculate as to what
the grant of an evidentiary hearing is generally otherwise        information would have come out of any one of Petitioner’s
discretionary. 212 N.W.2d at 925. There is a strong               three requested Ginther hearings had Petitioner not been
presumption in favor of courts engaging in a factual analysis     denied the hearings; however, Respondent, and the majority,
No. 02-2152                      Hargrave-Thomas v. Yukins               17     18   Hargrave-Thomas v. Yukins                    No. 02-2152

cannot say that these external factors were not the cause of                    determining the judgment’s result. Id. (citing Ylst v.
Petitioner’s procedural default.2                                               Nunnemaker, 501 U.S. 797, 803 (1991)). Therefore, to decide
                                                                                a procedurally defaulted claim the federal court must
   Furthermore, when Petitioner’s procedurally defaulted                        “determine [whether] a petitioner failed to comply with a state
claim is properly examined, Petitioner is entitled to a review                  procedural rule; and it also must analyze whether the state
of the “cause and prejudice” analysis in which the Michigan                     court based its decision on the state procedural rule.” Id. at
trial court engaged, with respect to Petitioner’s failure-to-                   406.
investigate portion of her ineffective assistance of counsel
claim. The majority opinion maintains that the district court                     It is undisputed that Petitioner’s first attempt to argue
impermissibly considered the merits of Petitioner’s claim and                   ineffective assistance of counsel based on a failure-to-
that we are to “review the federal court’s application of legal                 investigate was raised in the state court collateral appeal and
rules” only, and are to reach the merits of Petitioner’s claims                 not the direct appeal. Petitioner argues that the district court
only if we conclude that “the failure to investigate claim is                   correctly looked to the November 23, 1998, Michigan Circuit
not procedurally barred.”                                                       Court ruling as the last court opinion to provide a reasoned
                                                                                decision for the dismissal of Petitioner’s request for relief
  Nevertheless, it is well settled that a prisoner seeking                      regarding counsel’s failure to investigate, basing its denial on
habeas relief in federal court must have presented the claim                    the state prohibition in M.C.R. 6.508 (D), and also addressing
upon which he seeks relief to the state appellate courts.                       the merits of Petitioner’s claim as it performed a “cause and
Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir. 2000). If such                     prejudice” analysis. Respondent claims, and the majority
a claim is procedurally defaulted in state court, that                          agrees, that the district court erred in looking to the November
procedural default carries over to federal court, precluding                    1998 decision because the Michigan Supreme Court order,
habeas review. Simpson v. Jones, 238 F.3d 399, 405-06 (6th                      dated April 28, 2000, was the last court decision in this matter
Cir. 2000). In order for the claim to be barred in federal                      and did not address the cause or prejudice exceptions to a
court, however, the last state court rendering a judgment in                    procedural bar, or discuss the merits of Petitioner’s habeas
the case must have done so on adequate and independent state                    request.
grounds, evidenced by the existence of a state procedural bar
                                                                                  This Court in Burroughs v. Makowski, 282 F.3d 410, 413
                                                                                (6th Cir. 2002), held that the reviewing federal court, when
    2
      Petitioner brings to the Court’s attention Massaro v. United States,
                                                                                determining whether petitioner’s claim was procedurally
a Supreme Court holding stating that federal courts, in determining             barred, must look to the last state court decision to see if
federal habeas petitions for ineffective assistance of counsel, need not be     claims were denied based upon a state procedural bar, even if
precluded from reviewing such a claim on collateral review when not             the ruling was brief and did not explicitly reference the
raised first on direct appeal. 538 U.S. 500, 504 -05 (2003). T he Court         particular section of the state statute on which its judgment is
discussed policy determinatio ns concerning why the requirement of a
direct appellate review prior to collateral review may undermine the
                                                                                based. Id. There, the last court to consider the matter, the
purpo se of such a claim when ad equate factual support in the trial record     Michigan Supreme Court, based its denial on the state
may be lacking. Id. at 507 -08. T he Court also went on to distinguish this     procedural bar of M.C.R. 6.508 (D), but not specifically
procedural holding from that which would be followed by states, stating         subpart (3) of (D); however, this Court found that the
that a “growing majority of state courts now follow the rule we adopt           Michigan Supreme Court and the previous Michigan Court of
today.” Id. at 508 (citing Commonwealth v. Grant, 813 A.2d 726, 735-38
n.16 (Pa. 20 02) (cataloging other states’ case law adopting this position)).
                                                                                Appeals’ decisions presented sufficient explanations that their
No. 02-2152                Hargrave-Thomas v. Yukins         19    20   Hargrave-Thomas v. Yukins                   No. 02-2152

rulings were based on the procedural default. Id. This case        with prejudice her petition for habeas relief; however, this
was subsequently remanded for a “cause and prejudice”              would be in contravention of this Court’s procedural default
analysis, to determine whether petitioner’s claim warranted        analysis and the requirement of a “cause and prejudice”
habeas relief, in view of the state procedural bar. Burroughs      determination for a petitioner attempting to establish an
v. Makowski, 35 Fed. Appx. 402 (6th Cir. 2002) (unpublished        exception to a procedurally defaulted claim when requesting
table decision).                                                   habeas relief. See Burroughs, 282 F.3d at 413. This is
                                                                   precisely the review in which the November 1998 court’s
  In the instant case, the district court’s findings are similar   decision engaged, and the determination upon which the
to those in Burroughs, except here the court looked to the         district court reversed. Therefore, even if the latter Michigan
previous Circuit Court’s November 1998 opinion instead of          Supreme Court decision was reviewed to determine the
the latest opinions of the Michigan Supreme Court and the          viability of habeas relief on the merits of Petitioner’s claim,
Michigan Appellate Court, since the procedural aspects of all      the district court would still need to review the reasoning of
three opinions were duplicative. The early November 1998           the November 1998 decision, to find the reasoning for such
opinion specifically stated that Petitioner’s claims were          dismissal, or if no reasoning was present there, the court
subject to a “cause and prejudice” analysis precisely because      would then have had to remand for a “cause and prejudice
they were not brought up on direct appeal in accordance with       analysis.” Burroughs, 35 Fed. Appx. 402.
M.C.R. 6.508 (D)(3)(a)(b). The district court’s reliance on
the Michigan Court of Appeals or Michigan Supreme Court              I therefore respectfully dissent from the majority opinion
would not have differed in result, as those decisions also         insofar as I believe Petitioner has shown “cause and
stated that Petitioner’s claim was denied “. . . because the       prejudice” to overcome the default of her claim of her
defendant has failed to meet the burden of establishing            counsel’s failure-to-investigate, thus warranting the district
entitlement to relief under M.C.R. 6.508 (D).” This Court          court’s grant of habeas relief.
should then view these latter decisions of the Michigan Court
of Appeals and Michigan Supreme Courts as sufficiently
explaining their rulings based on the procedural bars,
Burroughs, 282 F.3d at 413, found in the previous November
1998 Circuit Court decision. See Couch v. Jabe, 951 F.2d 94,
96 (6th Cir. 1991) (citing Ylst, 111 S.Ct. at 2595 (“[W]here
there has been one reasoned state judgment rejecting a federal
claim, later unexplained orders upholding that judgment or
rejecting the same claim rest upon the same grounds”)).
Moreover, since Petitioner bears the burden of showing cause
and prejudice when needed, the November 1998 Circuit Court
decision addressed these issues, which the district court was
permitted to review. Simpson, 238 F.3d at 408.
  The majority argues as though the district court’s analysis
of the latter Michigan state court opinions should have
deemed Petitioner’s claims procedurally barred and dismissed
