                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0625n.06

                                             No. 07-4466

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                     FILED
                                                                                       Sep 02, 2009
                                                                                  LEONARD GREEN, Clerk
ROBERT S. VASQUEZ,                                         )
                                                           )
          Petitioner-Appellee,                             )
                                                           )
v.                                                         )   On Appeal from the United States
                                                           )   District Court for the Northern
MARGARET BRADSHAW,                                         )   District of Ohio
                                                           )
          Respondent-Appellant.                            )
                                                           )



Before:          MERRITT, BOGGS, and GRIFFIN; Circuit Judges.


          BOGGS, Circuit Judge. Robert Vasquez, serving a life sentence for the rape of a child under

the age of thirteen, petitioned the district court for a writ of habeas corpus. He argued that he

received constitutionally ineffective assistance of counsel because his attorney failed to interview

or locate several potential witnesses whose testimony would have cast doubt on the credibility of the

victim, the state’s lone witness establishing Vasquez’s guilt. The district court conditionally granted

the writ, holding that the Ohio courts unreasonably applied federal law in denying his ineffective

assistance of counsel claim. Warden Margaret Bradshaw now appeals from this decision, charging

the district court with failing to accord the state courts deference under the Anti-Terrorism and

Effective Death Penalty Act and with misapplying Sixth Amendment law to the attorney’s actions.

While we agree with the warden that the district court improperly disregarded the factual findings
No. 07-4466
Vasquez v. Bradshaw

of the Ohio courts, we affirm the district court’s decision. The Ohio courts applied law contrary to

clearly established federal law, stating and applying an overly exacting standard for prejudice as a

result of deficient counsel performance. On our own review of the record, even in light of the state

courts’ factual conclusions, we hold that Vasquez received constitutionally ineffective assistance of

counsel and is entitled to habeas relief.

                                                 I

                                                 A

       Vasquez was tried for the rape and kidnapping of nine-year-old A.L. On direct appeal, the

Ohio courts summarized the facts of the crime, as established by the evidence at trial, as follows:

       On July 23, 2000, the nine-year-old victim and her father [S.L.], who is a Cleveland
       police officer, went to Don Shaffer’s house. Shaffer is the victim’s father’s best
       friend. The father and the victim met Shaffer and his fiancee Becky Egbertson [now
       Becky Shaffer] and Becky’s sister, Karra Vasquez, earlier in the evening. They
       decided that Shaffer would pick up some fast food and they would go to Shaffer’s
       house to eat. The victim’s father first returned home to drop off his boat.
               By the time the victim and her father arrived at Shaffer’s house, it was late
       and Shaffer and Becky had retired for the night. However, staying with Shaffer was
       Becky’s sister, Karra Vasquez and her husband, the defendant, Robert Vasquez, and
       their two small children. . . .
               After they finished [eating], the victim’s father went outside with Kara
       Vasquez, leaving the victim with Robert Vasquez. Vasquez invited the victim to go
       downstairs into the basement to watch television and to help him with his two small
       children. In the basement was a bunk bed. The victim testified that she climbed onto
       the top bunk and that Vasquez also climbed onto the top bunk after removing the
       bunk ladder. According to the victim, he then pushed her down with his arm and,
       while holding his hand over her mouth, he pulled down her pants and underwear and
       began licking her “private spot.” As he was doing this, his two infant children were
       crawling around on the bottom bunk. He continued the assault until the victim’s
       father called to her from the top of the stairs. The victim then put her clothes back
       on and went home.
               The victim did not say anything about the assault to her father at that time.
       The next day, the father took the victim and her sister to spend a week with their

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       grandparents . . . . When the girls returned, the father took them to Shaffer’s house
       to babysit. Sometime later, Robert Vasquez and Don Shaffer returned from work.
       Robert Vasquez asked the victim several times to go down into the basement with
       him, but she refused. She then told Don Shaffer that she needed to talk to him. She
       told Shaffer that Robert Vasquez had sexually assaulted her.
               When the victim’s father returned, Shaffer informed the victim’s father what
       she had told him. The father called his partner at the police department to request
       that he come over to the house. He and his partner then talked with his daughter to
       explain the serious nature of the charges and to assure she was telling the truth. He
       then called 911. During this entire time, Vasquez remained in the basement until he
       was arrested later that night.
               The victim was taken by ambulance to Metro Hospital where she was
       interviewed by a social worker and a physical exam was performed.

State v. Vasquez, 2001 W.L. 1352781 at *1-*2 (Ohio Ct. App. 2001).

       At trial, A.L.’s testimony was the only evidence presented by the state to demonstrate that

the crime occurred or that Vasquez committed it. The state also offered testimony from A.L.’s

father, Don Shaffer, the investigating police officer, and the social worker who interviewed A.L.

Their testimony tended to provide circumstantial evidence of her credibility: that her story remained

consistent throughout the investigation and that she acted out of the ordinary, including being fearful

for her safety and calling her father daily from school. The defense put on no evidence. Vasquez

himself did not testify and no other witnesses were subpoenaed or called. Instead, Vasquez’s

attorney, Don Butler, pursued a strategy of highlighting the internal inconsistencies in A.L.’s

testimony and casting doubt on her truthfulness.

       The jury found Vasquez guilty. He was sentenced to life imprisonment for the rape of a

minor under the age of thirteen and nine years on the kidnapping charge.

                                                  B



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       In addition to his unsuccessful direct appeal, Vasquez filed a petition for post-conviction

relief in the Ohio Court of Common Pleas, alleging he received ineffective assistance of counsel.

Because the resulting opinion is not clear as to which of its statements were factual findings and

which were descriptions of testimony without credibility determinations, we recount the arguments

and evidence presented in more detail than a habeas court ordinarily would.

                                                  1

       Vasquez’s petition argued, among other things, that his counsel failed to investigate

adequately the circumstances surrounding the crime and A.L.’s accusation. This alleged failure

resulted in his defense lacking several willing witnesses who could have cast doubt on A.L.’s version

of events and on her credibility.

       Specifically, Vasquez claimed that Butler, who was assigned to the case by the court after

Vasquez’s original court-appointed attorney asked to be relieved, never prepared a defense. The two

men met only three times prior to the trial. Vasquez alleges that he indicated to his attorney that his

wife, Karra Vasquez, and his mother-in-law, JoAnn Kitchen, could provide helpful information but

admitted that he did not know where his wife was staying during the trial. Vasquez also claimed that

in addition to the face-to-face discussions, he sent Butler two ten-page letters detailing his version

of events, but that Butler never mentioned the letters or followed up on the suggestions in them.

       Vasquez also argued that Butler failed to locate available evidence and witnesses who would

have challenged A.L.’s story and credibility. For instance, the EMS run-sheet produced by the

responding EMT on the night that A.L. first accused Vasquez contained statements from A.L. that

appear to be at odds with the state’s theory of the crime. The run-sheet indicates that she told the

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EMT that Vasquez “put it in me” and that she had immediately showered on the night of the assault.

At trial, on the other hand, she testified that Vasquez used only his tongue and indicated that she

slept through the night on the couch with her father. Vasquez argued that these discrepancies from

the initial revelation of the attack would have been a powerful impeachment of her trial story.

        Vasquez also identified five witnesses who indicated they would have testified on Vasquez’s

behalf had Butler approached them. First, Karra Vasquez said that she called Butler twice but never

received a return phone call. Vasquez argued that his wife could have testified to facts that would

have made the attack less plausible: her presence in the small house, the basement door being open,

the relatively short duration that A.L. was in the basement, and A.L.’s undisturbed clothes and

normal demeanor upon returning from the basement. She also would have testified to the

circumstances related to the accusation, specifically that she overheard A.L.’s father coach A.L.

about her story prior to telling the police.

        Second, Becky Shaffer also indicated that she had not been contacted by Vasquez’s attorney.

Vasquez claimed that she had information about the evening of A.L.’s accusation that could cast

doubt on its credibility. She rode to the hospital in the ambulance with A.L. that night. She would

have testified that A.L. did not appear upset and was excited by the attention, even hoping that her

accusation might get her on TV. She also would have testified that A.L.’s father was prompting his

daughter’s answers.

        Third, Vasquez proffered the testimony of JoAnn Kitchen, Karra and Becky’s mother.

Kitchen had no direct knowledge of the crime or of A.L.’s accusation, but said that she was willing

to testify as to A.L.’s truthfulness. As a family friend (in addition to the connection between her son-

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Vasquez v. Bradshaw

in-law Don Shaffer and A.L.’s father, Kitchen was familiar with A.L. and her family because A.L.’s

father had dated a third daughter), Kitchen had frequently babysat for A.L. and interacted with her

at family events. In her opinion, A.L. craved attention so much that she could not be trusted to tell

the truth. Vasquez also argued that Kitchen was important to his ineffectiveness claim because she

was the only family member who actually spoke with Butler. She claimed that in her conversation

with Butler, she told him that she could not help, but denies that she refused Butler access to her

daughter or indicated that the family was unwilling to help.

       Finally, Vasquez offered two additional witnesses: Tammy Salopek and her daughter, Ashley

Snyder. Salopek is a family friend to both A.L.’s family and the Shaffers. Vasquez claimed that she

was thus easily identified and located by Butler if he had spoken with Becky Shaffer about mutual

acquaintances. Both Salopek and her daughter had extensive social contact with A.L.. They

indicated they would have testified to A.L.’s lack of truthfulness – specifically her willingness to lie

to get attention. They also could have testified to A.L.’s demeanor immediately after the accusation,

as A.L. slept over at Salopek’s home the following week. Contrary to the evidence at trial, neither

mother or daughter observed any strange or out-of-the-ordinary behavior in A.L.. Further, Vasquez

argued that Salopek and her daughter would have provided more substance to a defense theory that

A.L. fabricated the story because Ashley Snyder had, earlier in the summer of 2000, been the victim

of sexual molestation and had shared her story with A.L.

       Together, Vasquez argued that these witnesses demonstrated that his attorney failed to locate

evidence and witnesses that could have undermined the plausibility of the case and A.L.’s

credibility. Vasquez pointed out that this testimony tended to show that the layout of the house made

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Vasquez v. Bradshaw

the attack unlikely and the fact that she changed her story from the EMS report and received

coaching from her father. Moreover, a competent attorney could have put on a defense that

explained how a nine-year-old would be familiar enough with sexual assaults to manufacture a story

(months earlier she heard details of Ashley Snyder’s own sexual molestation) and why she might do

so (she has a history of lying for attention; she even hoped to be on TV after accusing Vasquez).

Accordingly, Vasquez asked for a new trial.

                                                   2

       The Ohio court held an evidentiary hearing on Vasquez’s claims of ineffective representation.

The court took testimony from the five witnesses recounted above who supposedly would have

participated in Vasquez’s defense but for Butler’s failure to locate them during his investigation.

Vasquez and Butler also testified.

       The five witnesses each testified consistently with their affidavits and Vasquez’s petition

described above, outside of a few concessions on cross examination. (For instance, Becky Shaffer

admitted that A.L.’s laughing in the ambulance was in response to the EMT’s joking.)

       Vasquez testified that prior to trial he had difficulty even learning the identity of his attorney.

Once he did discover his attorney’s name and contact information, he met with him only three times,

and none of those meetings lasted longer than a few minutes and involved little substantive

discussion of his case. He asserted that he identified at least his wife and JoAnn Kitchen as people

to contact. He repeated that he sent letters to Butler and that claimed that it appeared Butler ignored

them, asking basic questions in their meetings that had been answered in the letters.



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        Butler denied Vasquez’s characterization of his defense. He admitted that he met with

Vasquez only three times, but argued that he discussed the case at length with his client, but that

Vasquez provided no helpful information. When Butler did find Karra Vasquez at her mother’s

home, he claimed that JoAnn Kitchen refused to speak with him except to indicate that Karra (and

the rest of the family) would not help the defense. As to Becky Shaffer, Butler indicated that Don

Shaffer’s friendship with A.L.’s father and the fact that he was a state’s witness made him believe

it unlikely that she would help the defense. He also indicated that he did research into child sex

abuse cases generally and that he concluded that the best strategy was to attack A.L.’s testimony.

        After rehearsing this testimony in detail, the court denied Vasquez’s petition. The court

explained that “Butler’s testimony not only showed no failure in his obligation to prepare the case

for trial in general, but specifically concerning the subpoenaing of witnesses, his testimony and of

others showed that the defendant’s family members refused to cooperate with the defense.” Ibid.

The court continued: “perhaps most importantly, not one of the witnesses who testified . . . offered

any testimony that could have changed the outcome of defendant’s trial.”

        Reviewing for abuse of discretion, the Ohio Court of Appeals affirmed the denial of

Vasquez’s petition. The Supreme Court of Ohio denied discretionary review.

                                                    C

        Vasquez filed his petition for a writ of habeas corpus with the district court in June 2005.

His listed grounds for relief included, inter alia, his assertion that his attorney’s limited investigation

was unreasonable and therefore denied him effective assistance of counsel.



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        The district court first acknowledged that it “must generally defer to the factual finding of

the state courts,” but declined to do so here because “[a] comprehensive review of the 800-plus pages

of transcript in the record, in addition to the rest of the documents contained in the record, provides

clear and convincing evidence that the facts as found in the Direct Appeal Opinion and Post-

conviction Hearing Findings . . . are inaccurate in numerous places.” The district court, now feeling

freed of its usual deference, thereafter undertook a comprehensive discussion of all of the post-

conviction testimony, complete with citations to the record.

        Turning to the legal question, the district court concluded that “the state court application of

Strickland in this case was objectively unreasonable.” Specifically, “Butler’s performance as a

whole was deficient. . . . Butler simply failed in his duty to conduct an objectively reasonable

investigation on which to base his conclusions about trial strategy . . . .” The court highlighted

Butler’s failure to identify or interview several potential defense witnesses and the short amount of

attention given directly to Vasquez as evidence of the deficiency. And this “deficient performance

prejudiced the defense sufficiently to undermine the reliability of the trial, and thus the state appeals

court’s findings to the contrary were an objectively unreasonable application of Strickland’s

prejudice element.” Accordingly, the district court granted his petition.

                                                   II

         The Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244 et seq.,

requires us, when adjudicating a petition for habeas corpus challenging the legality of a state court

conviction, to defer to a final decision on the merits – of fact or law – of the state court that first

decided the claims raised. The same Congressionally-supplied standards governed the district

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court’s consideration of Vasquez’s petition and, accordingly, our focus is not on the errors that the

warden charges to the district court, but on the state court record and whether it warrants the relief

Vasquez requests. See Parker v. Renico, 506 F.3d 444, 447 (6th Cir. 2007) (“We review de novo

the district court’s decision to grant or deny habeas relief.”).

                                                   A

        AEDPA requires that the writ shall not issue unless we determine that the state court’s

adjudication:

        (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; or

        (2) resulted in a decision that was based on an unreasonable determination of the
        facts in light of the evidence presented in the State court proceeding.

        28 U.S.C. § 2254(d).

        For an allegation of constitutionally ineffective assistance of counsel, the relevant “clearly

established federal law” is Strickland v. Washington, 466 U.S. 668 (1984). A counsel’s performance

is a deprivation of a defendant’s Sixth Amendment right to counsel where a defendant shows his

counsel’s assistance was both deficient and that the deficiency prejudiced the defendant. A

performance is deficient only if it “fell below an objective standard of reasonableness” in light of the

“prevailing professional norms.” Id. at 687-88. And a deficient performance is prejudicial if “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.” Id. at 694.


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       The Ohio trial court did not follow this clearly established law. To be sure, the court cited

Strickland and identified a two-part test, measuring for deficiency and prejudice. But the court stated

that prejudice occurs only when “the result of petitioner’s trial or legal proceeding would have been

different had defense counsel provided proper representation.” (emphasis added). After reviewing

both Ohio and federal law, the court repeated itself, explaining that “[i]n order to demonstrate a

claim of trial counsel’s ineffectiveness according to the United States Supreme Court, a post-

conviction petitioner is required to demonstrate that (1) the performance of defense counsel was

seriously flawed . . . and (2) the result of petitioner’s trial or legal proceeding would have been

different had defense counsel provided proper representation.” (citing Strickland (without providing

a pin cite)). This was not a slip of the pen during a rote repetition of a rule corrected upon

application of law to fact. In analyzing Vasquez’s claim as to the failure to interview and call

potential defense witnesses, the court relied directly on its version of the ineffectiveness standard as

crucial to its decision against relief: “perhaps most importantly, not one of the witnesses who

testified [at the post conviction hearing] . . . offered any testimony that could have changed the

outcome of defendant’s trial.”      The court repeated, in the context of a different claim of

ineffectiveness, that “even if the Court found that Butler’s question demonstrated a deficiency . . .

defendant has shown no resulting prejudice. As demonstrated above, neither the testimony of Mrs.

Vasquez or Becky Shaffer would not [sic] have changed the outcome of the trial.”




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        The Ohio Court of Appeals, reviewing for abuse of discretion,1 repeated the error. It framed

its rejection of Vasquez’s appeal in terms of a changed-outcome: “defendant presented numerous

witnesses who did not testify at his trial. Their absence . . . does not demonstrate his counsel was

ineffective and that the outcome of his trial would have been different had they been witnesses . . .

.” (emphasis added). In analyzing the argument, the appeals court expressly adopted the trial court’s

reasoning: “[w]e agree with the trial court’s conclusion that ‘not one of the witnesses who testified

. . . offered any testimony that could have changed the outcome of defendant’s trial.’”


        1
           The Ohio appellate courts review a trial court’s decision as to a post-conviction petition for
relief under an abuse of discretion standard. See, e.g., State v. Gondor, 860 N.E.2d 77, 86 (Ohio
2006). This raises an apparently unresolved question about the state decision a federal court should
defer to under AEDPA. Where an appellate court reviews under an “abuse of discretion” standard,
it is not adjudicating the merits of the claim so much as the merits of the decision under review. The
question is only whether it fell into what is presumably a broad band of discretion. AEDPA,
however, is meant to secure deference to the application of federal law by a state court in its
“adjudicat[ion] on the merits” of a petitioner’s claim. 28 U.S.C. § 2254(d). Accordingly, AEDPA
perhaps does not have anything to say about a state court’s decision that another state court did not
abuse its discretion – it is concerned only with whether the actual adjudication of the merits of
petitioner’s claim was contrary to, or an unreasonable application of, federal law. On this view, we
should focus our analysis on the lower court’s adjudication and not the appellate court. This
approach finds analogical support in our court’s refusal to give AEDPA deference to a state appellate
court review for plain error. See Benge v. Johnson, 474 F.3d 236, 246 (6th Cir. 2007) (“Because
Benge could have met his burden under Strickland despite not being able to demonstrate plain error,
this analysis did not constitute an ‘adjudication on the merits’ of Benge’s ineffective-assistance-of-
counsel claim.”) (quoting 28 U.S.C. § 2254(d)). Other cases, however, have focused on the
reasoning actually followed by the state court and not the standard of review applied. See Fleming
v. Metrish, 556 F.3d 520, 530-32 (6th Cir. 2009) (distinguishing Benge and holding a review for
plain error is an adjudication on the merits where the state appellate court first determined the merits
of the claimed error before holding that it did not effect substantial rights).
          Nevertheless, we do not find it necessary to resolve this issue here because we hold that the
appellate court also applied law contrary to the Strickland standard by asking whether the outcome
would have been different. We note that it is plausible that a state appellate court might, without
repeating the mistake of a lower court, still affirm because it is applying a deferential standard of
review.

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       This is not a casual error. A “reasonable probability” of difference does not mean “would

have been different.” The latter formulation puts a greater burden on the petitioner. To prevail on

his claim as it was adjudicated, Vasquez was required not only to show that his counsel’s deficiency

“undermine[d] confidence in the outcome,” Strickland 466 U.S. at 694, but to prove that a trial with

competent counsel actually would have resulted in his acquittal. In interpreting what Congress

meant in § 2254(d), the Supreme Court used a similar mistake as the paradigmatic example of an

application of law “contrary to clearly established federal law” that deserves no deference under the

statute. The Court explained:

       A state court decision will certainly be contrary to our clearly established precedent
       if the state court applies a rule that contradicts the governing law . . . . Take, for
       example, our decision in Strickland . . . . If a state court were to reject a prisoner’s
       claim of ineffective assistance of counsel on the grounds that the prisoner had not
       established by a preponderance of the evidence that the result of his criminal
       proceeding would have been different, that decision would be ‘diametrically
       different,’ ‘opposite in character or nature,’ and ‘mutually opposed’ to [the Court’s]
       clearly established precedent because [it] held in Strickland that the prisoner need
       only demonstrate a ‘reasonable probability that . . . the result of the proceeding would
       have been different.’

(Terry) Williams v. Taylor, 529 U.S. 362, 405-06 (2001) (internal citations omitted).

       Of course, the error there, picked by the Supreme Court for its clarity in illustrating

application of contrary law, precisely defined the quantum of proof. The Ohio courts left it at

“would have been different,” unadorned by the truly offending words “preponderance of the

evidence.” It could be argued that, in the spirit of the deference demanded by AEDPA, we should

give the Ohio trial court’s statement the benefit of the doubt and assume that the court implied the

words “reasonable probability.” See Holland v. Jackson, 542 U.S. 649, 654-55 (2004) (reversing


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a decision that the state court decision was “contrary to” Strickland because “use of the unadorned

word ‘probably’ is permissible shorthand when the complete Strickland standard is elsewhere

recited.”). After all, as the warden argues, the appellate court, consistent with Supreme Court

precedent, stated the correct standard once.

       We are not persuaded. Different standards make for different outcomes. Even where a state

court “explicitly delineated the Strickland test,” its decision is “contrary to” federal law where the

court applied an “incorrect burden of proof.” West v. Bell, 550 F.3d 542, 552 (6th Cir. 2008).

Indeed, our court has already held that a state’s court use of a “would have compelled acquittal”

formulation is “contrary to” federal law. Tinsley v. Million, 399 F.3d 796, 807 (6th Cir. 2005).

While the appellate court did say “reasonable probability” once, the use of the incorrect words cannot

be regarded as anodyne “shorthand,” e.g. Woodford v. Visciotti, 537 U.S. 19, 23 (2002), because they

actually describe and apply a different standard. The court of appeals emphasized the inability to

meet the prejudice prong, underscoring whether the trial “would have been different,” and expressly

adopted the erroneous legal reasoning of the court below. Accordingly, we hold that the Ohio courts

applied law that was contrary to clearly established federal law and we are therefore “unconstrained

by § 2254(d)(1) . . . and de novo review is appropriate.” Fulcher v. Motley, 444 F.3d 791, 799 (6th

Cir. 2006) (citing Williams, 529 U.S. at 407).

                                                   B

       AEDPA also supplies our standard for reviewing a factual record. The statute provides that

“a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C.

§ 2254(e)(1). Only if Vasquez “rebut[s] the presumption of correctness by clear and convincing

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Vasquez v. Bradshaw

evidence” may we disregard those determinations. Ibid. The district court held that this burden was

carried. Vasquez agrees; the warden argues strenuously that the district court erred.

          Before resolving this dispute, its necessary to clarify what the issue is. The Ohio trial court’s

decision was opaque about its findings of fact. Its opinion, to be sure, contained a section labeled

“Findings of Fact.” But the section gives no definitive statement of “the facts”. Nor does it resolve

any of the testimonial inconsistencies discussed. Instead, it provides the background to its decision:

a statement of the applicable legal rules, a summary of the factual testimony given by each witness

at the post-conviction hearing, and portions of trial transcript relevant to certain post-conviction

issues. None of this is the sort of “determination of a factual issue” that § 2254(e)(1) requires us to

accept.

          The court’s “Conclusions of Law” section, however, does make a series of statements, which

reveal some of the facts that it evidently found essential to its decision. The dispute over whether

the district court accorded the proper deference is limited to only these statements, where the district

court’s “determination of a factual issue” are actually discernable from its decision. Those

statements are:

C         “[T]he defendant’s family members refused to cooperate with the defense.” Specifically,
          “Butler explained, and the witnesses themselves corroborated, that Mrs. Vasquez, Becky
          Shaffer and Mrs. Kitchen refused to cooperate in his defense”

C         “Butler’s explanation concerning his efforts to contact these family members and their
          uncooperativeness was corroborated by detective Chappelle”

C         “Since Tammy Salopek was a friend of Becky’s, had Becky been cooperative with Butler,
          he could have possible [sic] learned of her, and her daughter’s availability.”



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       In light of the number of witnesses and the relative complexity of the fact situation, this lack

of detail is both surprising and frustrating to a federal court attempting to reconstruct the trial and

the post-conviction hearing to decide if habeas relief is warranted. This frustration likely explains

the district court’s decision to conduct its own “comprehensive review” of the record and, ultimately,

to rely wholesale on that review in place of the Ohio court’s findings, without demonstrating which,

if any, findings are specifically rebutted by clear and convincing evidence. But, whether or not

understandable, the district court did not do what AEDPA required of it.

       Under § 2254(e)(1), a proper comparison of these limited findings of fact to the record asks

whether they are contradicted by clear and convincing evidence. The state court’s findings as to

Karra Vasquez and Kitchen are not. First, the state court’s conclusion that Kitchen was not

cooperative resolves the credibility dispute between Butler (who insisted she refused to help and said

no one would) and Kitchen (who denied that she refused to help) in favor of the attorney. A

reviewing court, relying on cold transcripts, is not in position to displace such a resolution. See

Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). Second, the state court’s reference

to the corroboration of Butler’s efforts to contact Karra Vasquez means that Butler’s only means of

contacting Karra Vasquez was through JoAnn Kitchen. (Detective Chappelle testified to the same

difficulty in contacting Karra Vasquez.) If Butler is to be believed over Kitchen, as the state court’s

opinion requires, Kitchen’s refusal also blocked his access to Karra Vasquez.

       In contrast, the court’s discussions regarding Becky Shaffer is not a determination of fact that

forecloses Vasquez’s argument. It is true that the court grouped her with Karra and Kitchen as

someone that “refused to cooperate.” But it is dubious that this statement, contained in a summary

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statement listing Karra Vasquez and Kitchen, reflects a factual determination by the court. See

Wiggins v. Smith, 539 U.S. 510, 530-31 (2005) (evaluating a state court’s conclusory factual finding

in light of its explanation and denying it deference under § 2254(e)(1)). Unlike Kitchen (and Karra

Vasquez, who was known to be living with Kitchen at the time Butler called her), Butler never

contacted or even attempted to contact Becky Shaffer. There was therefore no opportunity for her

to “refuse to cooperate” and the court could not have so determined. Instead, its reasoning that

“Butler’s professional opinion that Becky Shaffer would not be of assistance since her husband was

a State’s witness, and because of Mrs. Kitchen’s representations that no one in the family would

help, is a decision that is solely within defense counsel’s discretion” is a better reflection of the

court’s holding as to Becky Shaffer. To the extent that the court relied on her “refusal,” it appears

from this statement that it was actually deciding that Butler’s conclusion that she would have refused

was reasonable. That was a legal conclusion and we review it as such below.

        The trial court’s conclusions about the EMS run-sheet also do not merit § 2254(e)(1)

deference. The court concluded that the information it contained actually corroborates A.L.’s trial

testimony. While credibility determinations as between counsel and potential witnesses regarding

what happened pretrial must be deferred to as a factual determination, this conclusion is different.

The court decided that one interpretation of the evidence (the EMS run-sheet corroborated A.L.’s

testimony) was better than another (that it contradicted both A.L.’s and her father’s testimony). But

both would have been permissible interpretations for the jury to draw had the EMS run-sheet been

presented to the jury in the first instance, and so this reasoning is actually a holding that Vasquez has

not carried his burden to show prejudice resulting from his attorney’s failure to identify the run-sheet

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as useful impeachment evidence. See Ramonez v. Berghuis, 490 F.3d 482, 490 (6th Cir. 2007)

(“[W]hat 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.”). Accordingly, we review it

de novo below.

       To reiterate, on the facts as we must take them, based on the implications of the state court’s

decision and the operation of AEDPA deference, Vasquez cannot base his ineffective assistance of

counsel argument on the failure to investigate Karra Vasquez or JoAnn Kitchen. They refused to

cooperate and any amount of investigation by Butler would not have made a difference. But

Vasquez may base his claim on the failure to investigate and put in the record the EMS run sheet and

Becky Shaffer’s account of A.L.’s credibility. By extension, Vasquez may also rely on the testimony

of Salopek and Snyder, who (by admission of the trial court) likely would have been found through

an interview with Shaffer, in making his claim.

                                                  III

       The ultimate issue, then, is whether the failure by Vasquez’s counsel to uncover the

impeachment evidence from the EMS run-sheet, Becky Shaffer, Tammy Salopek, and Ashley Snyder

resulted from deficient performance and, if so, whether it prejudiced the outcome of the trial.

                                                  A

       Constitutional competence is not a high bar for an attorney to reach. The question is whether

the representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.

In determinating whether a performance was reasonable, we give a healthy amount of deference to

counsel’s tactical and litigation decisions; they are “virtually unchallengeable” in the ordinary case.

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Id. at 690. But this deference to strategic choices has always been tempered by a requirement that

the choices themselves be informed: “strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments support the limitations

on investigation.” Id. at 691 Accordingly, “a particular decision not to investigate must be directly

assessed for reasonableness.” Ibid. Our circuit has expressed this principle with more color: “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.” Ramonez, 490 F.3d

at 488.

          The law as developed so far has not settled on a definitive statement of what a “reasonable

investigation” entails. But well established principles suggest that Vasquez’s claim that his attorney

failed to identify key evidence and failed to locate and interview critical witnesses is within the

known contours of the duty. See, e.g., Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005) (noting

that the duty on counsel to investigate “includes the obligation to investigate all witnesses who may

have information concerning his or her client’s guilt or innocence.”); see also Clinkscale v. Carter,

375 F.3d 430, 443 (6th Cir. 2004) (collecting cases for the proposition that failing to investigate or

call potential defense witnesses constitutes constitutionally deficient representation). That the

missing evidence alleged here is impeachment evidence and not, as in some ineffective assistance

cases, direct evidence of innocence does not reduce the applicability of this principle. See Tucker

v. Ozmint, 350 F.3d 433, 444 (4th Cir. 2003) (“Trial counsel have an obligation to investigate

possible methods for impeaching a prosecution witness, and failure to do so may constitute

ineffective assistance of counsel.”). This is because we are assessing the reasonableness of the

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representation and the defenses available to the attorney change what is reasonable: where there are

no direct witnesses to the alleged crime beyond the perpetrator and the victim, impeachment

evidence is at a premium.

       The circumstances ordinarily surrounding an accusation of child sexual abuse underscore this

concern for developing impeachment evidence. As the Second Circuit has explained, “these cases

frequently hinge on judgments about credibility in which jurors must choose between contradictory

stories proffered by the defendants and the complainants” because “third-party witnesses [are] often

unavailable . . . .” Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003). Thus, that court adopted a

rule that “defense counsel is obliged, wherever possible, to elucidate any inconsistences in the

complainant’s testimony, protect the defendant’s credibility, and attack vigorously the reliability of

any physical evidence of sexual contact between the defendant and the complainant.” Ibid. While

adopting a unique standard of care for sexual abuse cases is unnecessary at this time, the Second

Circuit’s admonition is compelling here, in light of what Butler knew as he was undertaking his

investigation and defense of Vasquez.

       Prior to trial, Butler must have known there was no plausible defense of Vasquez other than

attacking A.L.’s credibility. The only witnesses to the crime were A.L. and Vasquez, so producing

a witness with a different account was impossible. There was no physical evidence for him to

counter, or to demonstrate that a different person was involved. There was no possibility of an alibi;




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Vasquez was undeniably in the basement with A.L. And in fact, Butler identified no defense

witnesses and called none at trial.2

       Indeed, viewing the situation (as we must) “from counsel’s perspective at the time,”

Strickland, 466 U.S. at 689, four facts were clear and should have pointed him toward the

investigation necessary to put on a stronger defense. First, A.L.’s story was never crystal clear,

suggesting that perhaps a well-informed cross-examination and a contradicting defense witness could

have raised a reasonable doubt as to its veracity. Second, all of the people involved in the crime and

its revelation were extremely interrelated, suggesting that there is a convoluted back-story that could

have provided context for the jurors to understand the accusation and resolve testimonial


       2
            The warden attributes this failure to Vasquez. It is true that Vasquez only told Butler to
contact his wife and mother-in-law and, apparently, did not mention Becky Shaffer or anyone else
as a potential witness. This might be a persuasive rejoinder to Vasquez’s allegations if Becky
Shaffer were not such an obvious person to contact because: (1) she is Vasquez’s sister-in-law (at
the very least, Butler may have contacted her to get in touch with Karra Vasquez); (2) the crime took
place in her home; (3) she was present in the home at the time it occurred; and (4) she was present
immediately after A.L.’s accusation.
          This attribution is part of a strategy, on the part of both the warden and the state court, to
place the attorney’s failure to investigate at Vasquez’s feet. While we are sympathetic to the defense
attorney who has a client that will not help, we do not believe our cases to support the proposition
that a defendant gets only the defense that he is capable of providing personally. (They hold only
that it is not unreasonable for an attorney to limit investigation once her client has frustrated her
otherwise reasonable efforts. See, e.g., Lorraine v. Coyle, 291 F.3d 416, 435 (6th Cir. 2002)). The
Sixth Amendment guarantees minimally effective representation because the adversarial testing of
the state’s case, a cornerstone of our criminal justice system, is very difficult without counsel. See
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (“In making the competency determination, the
court should keep in mind that counsel’s function . . . is to make the adversarial testing process work
. . . .”) (internal quotation marks omitted). An attorney (especially an experienced one like Don
Butler) has skills and knowledge beyond the ken of an average criminal defendant. He should be
expected to take a sober account of the case he is presented with and proceed to put together the best
challenge to the prosecution’s proof. This is true even if he must use information gleaned from
discovery and investigation instead of the defendant’s mouth.

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inconsistencies. Third, Becky Shaffer was the sister-in-law of Vasquez, at the place of the attack on

the night it occurred, and with A.L. immediately her accusation, all suggesting that she may have had

information useful to the first two facts. Fourth, he had discovery materials from the state that,

among other things, contained the EMS report and the names and contact information of the people

the police investigated, including Becky Shaffer.

       It is against this background that Butler’s decisions against investigation are unreasonable.

Our recent decision in Brown v. Smith illustrates how the thinness of the prosecution’s case affects

our judgment regarding an attorney’s decisions against investigation. 551 F.3d 424 (6th Cir. 2008).

In that case the petitioner, also convicted of child sexual abuse, alleged that his attorneys were

ineffective for failing to interview the psychiatrist who had treated the accuser and lone witness. We

explained that because the “entire case hinged on the credibility of [the accuser], and defense counsel

were aware that [the psychiatrist] . . . had treated her near the time of the alleged assault,” it was

“negligent – indeed, constitutionally deficient – for Brown’s attorneys not to seek in camera review

of the counseling records . . . .” Id. at 431. Similar reasoning applies here: Butler knew that Becky

Shaffer was ideally situated to provide information on the only avenue of defense available to

Vasquez and that the EMS report contained information contradicting the version of events that the

state was alleging at trial. He was therefore deficient by declining to pursue these leads.

       Perhaps if Butler knew of other witnesses certain to be cooperative or physical evidence

tending to show innocence, it would have been reasonable for him to focus his limited time and

resources on developing a different defense based on that evidence. But he did not and so it was not

reasonable to interview no potential witnesses and develop no defense. See Williams v. Washington,

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59 F.3d 673, 681 (7th Cir. 1995) (“Because investigation [of the witnesses] might have revealed

evidence bearing upon credibility (which counsel believed was the sole issue in the case), the failure

to investigate was not objectively reasonable.”); see also Bigelow v. Williams, 367 F.3d 562, 572 (6th

Cir. 2004) (holding counsel’s representation deficient because he failed to investigate a possible alibi

witness once the witness’s identity was discovered).

        The state court held that Butler’s decision was reasonable as to Becky Shaffer because of

Kitchen’s statement and because Becky’s husband was a state’s witness. Kitchen’s statement makes

sense as a basis to discount Karra Vasquez – Butler had to go through Kitchen to contact her – but

less so for Becky Shaffer. Becky could be contacted independently and, while she was a member

of the family (Vasquez’s sister-in-law) and may have had reasons not to cooperate, it is incredible

for Butler to base a decision against interviewing her on a single statement from the witness’s

mother. As to Becky’s husband Don Shaffer being a state’s witness, that could explain a decision

not to call Becky but not why he did not attempt to talk with her in the first instance. Cf. Brown, 551

F.3d at 432 (“[O]ur quarrel is not with trial counsels’ decision to forgo calling . . . a witness per se,

but rather with the lack of any reasonable, timely investigation into what she might have offered the

defense.”). Moreover, neither argument takes into account that Butler knew that Becky Shaffer was

likely to have relevant information and talking with her could help a develop an otherwise non-

existent defense.

        Using the EMS run-sheet to impeach A.L. and the other government witnesses (and as a basis

for further investigation) should have been an even more straightforward decision for Butler.

Through discovery, Butler had direct knowledge of the EMS report, which contained information

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demonstrating inconsistencies in A.L.’s story: she described the attack then as “he put it in me” and

not as Vasquez licking her vagina, and she claimed that she had taken a shower on the night of the

attack (which contradicts her father’s testimony that she fell asleep on the couch with her father).

       The state court reasoned that there was no contradiction between the EMS report and the

testimony because its possible that (1) the “it” in the EMS description was Vasquez’s tongue and (2)

that A.L. showered after her father went to sleep. This post hoc harmonization is not impossible as

a matter of logic but does not explain Butler’s indifference to the potential inconsistency (the

disharmonious explanation is probably more plausible). He did not try to find out whether or not the

testimony of A.L. and her father would stand up to impeachment on the basis of the EMS report.

Moreover, Butler should have identified the report as particularly probative because it was made so

close to the original report of the attack, so its inconsistency would sharply undercut the

corroborative testimony based on interviews with A.L. that took place much later. For instance,

penetration and licking are much different acts and the fact that A.L. may have changed her story

between the two should have been recognized as premium impeachment evidence. The report

further signals an opportunity to track down and interview the EMS respondent, who would have

been in a position to testify as to A.L.’s demeanor in the ambulance on the way to her exam, possibly

corroborating Becky Shaffer’s testimony that A.L. was at ease in the ambulance and more concerned

with the attention she was receiving than disturbed by the abuse she reported.

       The warden argues that this line of argument is an impermissible second-guessing of Butler’s

strategic decision making. Accepting the patently debatable premise that the omissions discussed

in this opinion were the result of a conscious strategy on Butler’s part, the foregoing account of what

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Butler knew (and what the prospects for Vasquez’s defense were) when he decided against continued

investigation demonstrates that decision was “objectively unreasonable because it was a decision

made without undertaking a full investigation” and therefore not due deference. Towns, 395 F.3d

at 259 (internal quotations omitted); see also Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir. 1990)

(“Where counsel fails to investigate and interview promising witnesses, and therefore has no reason

to believe they would not be valuable in securing defendant’s release, counsel’s inaction constitutes

negligence, not trial strategy.”) (internal quotations omitted). To this, we add only that the pretrial

investigation actually admitted to by Butler – his legal research on sex abuse and child rape cases

– should have pointed him toward the investigation he failed to undertake. It is well known in the

literature (and the cases cited above) that the credibility of the child witness is often central to the

success of child sex abuse prosecutions and that the circumstances surrounding the initial accusation

of the abuse are important indicia of credibility. See generally, e.g., Kamela London et al.,

Disclosure of Child Sexual Abuse: What Does Research Tell Us About the Ways that Children Tell?,

11 PSYCH . PUB. POL. & L. 194 (2005) (discussing various psychological models of children’s

accusations of child sexual abuse and their importance to understanding the accuracy of testimony

in child sexual abuse trials). This suggests that, even without knowing what Butler knew about the

available evidence, Becky Shaffer and the EMS run-sheet would be natural starting points to an

investigation and a defense. Yet, Vasquez’s attorney did not pursue these leads. We do not believe

that this behavior can accurately be described as a “strategic choice”. Instead, we hold it to be

representation “below an objective standard of reasonableness” and constitutionally deficient.

Strickland, 466 U.S. at 688.

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                                                   B

        This deficient representation only amounts to a violation of Vasquez’s Sixth Amendment

rights if it resulted in prejudice – a probability of a different result that is “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. In determining whether Vasquez has

carried his burden, we must evaluate the deficiency in light of the “totality of the evidence before

the . . . jury.” Id. at 695. And so, in a case in which the “verdict or conclusion [is] only weakly

supported by the record is more likely to have been affected by errors . . . .” Id. at 696. Accordingly,

in cases like this one, where the only evidence of the crime or the defendant’s guilt is the testimony

of the victim, our circuit has been especially willing to find prejudice from deficient representation

because “[t]he lack of physical evidence confirming sexual activity meant that this was necessarily

a close case at the trial level.” Hodge v. Hurley, 426 F.3d 368, 386 (6th Cir. 2005).

        The missing evidence here undermines our confidence that had Butler pursued the leads he

had immediately available to him the same outcome would have obtained. The EMS report

demonstrates a specific and non-trivial difference in her story over how the attack took place: the

run-sheet implies A.L. reported that there was penetration by Vasquez’s penis in contradiction to the

evidence at trial.3 Becky Shaffer’s account reveals inconsistences in A.L.’s timeline; that S.L.


        3
         The state court’s harmonization that the “it” could be Vasquez’s tongue is not responsive
to our focus about how the jury would likely have taken it. Coupled with the inconsistency about
the shower, we think it likely a jury would consider the run-sheet evidence of instability in A.L.’s
story. This is especially so because it is unlikely that the jury would believe a nine-year-old would
colloquially describe Vasquez’s licking as “put[ting] it in,” whereas she might be likely to use that
term for penetration. Moreover, unlike A.L.’s story at trial, penetration is not consistent with the
circumstances of the attack occurring in a short window of time, with her father’s presence upstairs,
and on the same bunk-bed where Vasquez’s children were sleeping. In any case, the fact that we

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coached A.L. and was prompting responses to the police; that she acted relaxed and not in

conformity with a girl recently revealing a traumatic experience; and specific revelations that A.L.’s

concern was over attention (would she get on TV) and not the crime. Speaking with her would have

also led Butler to additional defense witnesses. The testimony from Salopek and her daughter, in

turn, would have provided detailed reasons that A.L. is not trustworthy and does not understand the

consequences of her lies; that she was not acting out-of-the-ordinary the week after she revealed the

attack; and that A.L. had just learned of the sexual abuse suffered by Snyder. Together, this evidence

challenges the specifics of her story, her motivations, and her general truthfulness. Moreover and

equally important, it undermines the corroboration evidence presented by the state – that A.L.’s story

did not change in her retelling of it, that she acted out of character after the attack, and the

implausibility of a nine-year old making up such a sexual-molestation story.

       The warden makes two arguments against the prejudicial effect of this missing evidence.

First, the warden argues that Becky Shaffer may not have in fact cooperated because she declined

to give a written statement to the investigating police officer. This fact is not as significant as the

warden would have it. Shaffer did speak with the officer, but chose not to give a written statement

after her husband had already given one. It is true that she did not, on her own volition, volunteer

facts to the police officer, but that is not evidence of what she would have said had she been directly

asked. Indeed, legally trained defense counsel are likely to ask different questions and bring a



cannot be sure about how the jury would take the evidence does not prevent a finding of prejudice,
since Vasquez need only undermine our confidence in the outcome, not prove that a different
outcome was certain with competent counsel.

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different context to the investigation than the investigating police officer. The police officer was

trying to establish the facts of the attack. Butler, undertaking his investigation with an understanding

of the state’s case, would be building a case specifically against A.L.’s version of events. He likely

would have asked different questions and placed greater weight on information to present a jury.

For instance, he may have focused on the ambulance ride (because it would be the best evidence of

how A.L. acted immediately after accusing Vasquez) and on information about A.L.’s credibility as

a witness, rather than on what happened the night of the attack. According to Becky Shaffer’s

testimony, such questions would have elicited the answers that now provide important impeachment

evidence.

       Second, the warden argues that the additional evidence was cumulative on Butler’s attacks

against A.L.’s credibility. To be sure, “evidence that is merely cumulative of that already presented

does not . . . establish prejudice.” Getsy v. Mitchell, 495 F.3d 295, 313 (6th Cir. 2007) (en banc)

(internal quotations omitted). Our cases, however, do not tell us clearly when evidence becomes

sufficiently different to no longer be “cumulative” or at what level of generality one must compare

the evidence. In our most skeptical formulation, we have said, “in order to establish prejudice, the

new evidence that a habeas petitioner presents must differ in a substantial way – in strength and

subject matter – from the evidence actually presented . . . .” Hill v. Mitchell, 400 F.3d 308, 319 (6th

Cir. 2005). In light of the weakness of the defense at trial, the missing evidence here satisfies even

this high standard.

       Butler used the cross-examination of the prosecution’s witnesses to attack A.L.’s credibility

and to imply that her story changed. For instance, A.L. admitted that she sometimes lies and that her

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father has to punish her for that. A.L.’s father agreed that he sometimes had to punish her for lying.

He admitted that he repeatedly went over the accusation with her to make sure she was telling the

truth. He also admitted that during the eleven days between the incident and her report of it, he did

not hear anything to indicate A.L. (who was visiting relatives) acted out of the ordinary. Further,

Butler used A.L.’s father to demonstrate differences between the version of the attack in the police

report and the version recorded as the attack history in the hospital, where A.L. did not tell the doctor

that Vasquez covered her mouth or that the attack ended when her father called for her. Similarly,

on cross examination Don Shaffer indicated that those same details in the hospital report were not

in A.L.’s initial description of the attack to him. Butler relied on this testimony to create a narrative

in closing about A.L.’s credibility, suggesting that she was caught in a lie by her father, but insisted

on the truth of the accusation to avoid the consequences of having lied about it to her father.

        The missing evidence is not cumulative on these narrow admissions that Butler induced on

cross-examination. The missing evidence is not a restatement of the general proposition of A.L.’s

untrustworthiness or the inconsistencies already raised. Cf. Hartman v. Bagley, 492 F.3d 347, 361

(6th Cir. 2007) (holding no prejudice where petitioner’s main argument is only “contentions that

counsel failed to expand on or corroborate or fully develop the factors listed in” his psychologist’s

report that were testified to in front of the jury). Instead, the evidence provides direct and specific

challenges to her motivations (she wants to be on TV, she wants attention), her trustworthiness (she

lies a lot and her friends and friends’ parents confirm that she does not understand consequences of

her lies), the stability of her story (the change in the EMS report, the prompting from her father), and

the origins of her story (she just recently learned Ashley Snyder had been molested), each of which

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was not presented to the jury via Butler’s cross-examinations. The inconsistencies elicited between

the hospital report and her initial report also were only sins of omission, unlike the EMS report,

which contains information possibly contradicting the central fact of the crime.

       Moreover, Butler’s attempts at impeachment all relied on the testimony of the state’s

witnesses and frequently were likely unconvincing because they relied only on the state’s witnesses.

For instance, A.L.’s admission that she “sometimes lies” is less impressive without corroboration

from additional witnesses that underscore that she lies specifically to get attention and that she

frequently does not understand the consequences of her lies. Cf. Clinkscale, 375 F.3d at 445 (holding

that corroboration evidence to defendant’s alleged alibi was not cumulative because without “any

corroborating witnesses [the defendant was] left . . . without any effective defense.”) (internal

quotations omitted). Butler’s other attempts at impeachment were followed by flat rejections of the

broader propositions that he tried to establish. S.L. rejected the proposition that his daughter “had

a tendency to make things up.” Similarly, Don Shaffer denied on cross that A.L. frequently made

things up beyond “ordinary, kids fighting.” The missing evidence, on the other hand, was not

subject to immediate denial and so would have been less vulnerable to being discounted by the jury.

See Bigelow, 367 F.3d at 565 (holding that additional alibi witnesses were not cumulative because

of the vulnerability of the one alibi witness called).

       Where, as here, the evidence that the jury did not hear provides specific impeachment

evidence, we have not held it to be “cumulative” merely because other, less convincing evidence that

also happened to be “impeachment evidence” was heard. See, e.g., Brown 551 F.3d at 434-35. And

this outcome makes sense, even under the “substantial difference” standard in Hill: the ultimate

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question is not the analytical difference between the actual trial and a hypothetical one, but whether

the fact of missing evidence “undermine[s] confidence in the outcome.” Strickland, 466 U.S. at 694.

       Accordingly, we hold that, in light of centrality of credibility to the prosecution’s case and

the strength of the missing impeachment evidence, Vasquez has demonstrated that but for his

counsel’s unprofessional errors there was a reasonable probability that his trial would have had a

different outcome; our confidence in the verdict is indeed undermined.

                                                 IV

       For the reasons explained, Robert Vasquez received constitutionally ineffective assistance

of counsel. The Ohio courts’ holding decision of no prejudice was contrary to clearly established

Supreme Court precedent and Vasquez is therefore entitled to the writ of habeas corpus. The

judgment of the district court is AFFIRMED.




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       GRIFFIN, Circuit Judge, dissenting.

       I respectfully dissent. I disagree with the majority’s conclusions that (1) the Ohio courts

applied law contrary to Strickland v. Washington, 466 U.S. 668 (1984), (2) our review is not

constrained by AEDPA and that de novo review is appropriate, and (3) Vasquez received

constitutionally ineffective assistance of counsel. In my view, the majority and the district court

have engaged in an impermissible reconstruction of Vasquez’s trial, failed to avoid the warping

effects of hindsight, and declined to afford a strong presumption that Attorney Butler’s conduct fell

within the wide range of reasonable professional assistance. Accordingly, I would reverse the

judgment of the district court and deny the petition for a writ of habeas corpus.

                                                  I.

       As the majority concedes, the district court erred by not according proper deference to the

state court’s factual findings and conclusions of law under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. The majority concludes, however, that de novo

review is nonetheless appropriate because the Ohio courts applied law that was contrary to Strickland

v. Washington, 466 U.S. at 668; see Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006) (when a

state court applies law that is “contrary to” clearly established federal law, a federal court is

unconstrained by § 2254(d)(1) and de novo review is appropriate).

       At the outset, I take issue with footnote 1 of the majority’s opinion. In it, the majority elects

to “focus” its Strickland analysis on the Ohio trial court’s decision instead of the opinion rendered

by the Ohio Court of Appeals. My colleagues base their decision on what they characterize as “an

apparently unresolved question about the state decision a federal court should defer to under

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AEDPA[,]” namely, the majority queries whether an appellate court decision, governed by an abuse-

of-discretion standard, constitutes “an adjudicat[ion] on the merits” under AEDPA. 28 U.S.C. §

2254(d) (a federal court shall not grant the writ “with respect to any claim that was adjudicated on

the merits in State court proceedings unless . . . .”).

        However, it is well-established that a federal court reviewing a habeas petition should

examine the decision of the last state court “to [render] a reasoned opinion on the issue[.]” Payne

v. Bell, 418 F.3d 644, 660 (6th Cir. 2005), cert. denied, 548 U.S. 908 (2006); see Davie v. Mitchell,

547 F.3d 297, 315 (6th Cir. 2008); Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006). Nonetheless,

the majority contends that:

        [w]here an appellate court reviews under an “abuse of discretion” standard, it is not
        adjudicating the merits of the claim so much as the merits of the decision under
        review. The question is only whether it fell into what is presumably a broad band of
        discretion. AEDPA, however, is meant to secure deference to the application of
        federal law by a state court in its “adjudicat[ion] on the merits” of a petitioner’s
        claim. 28 U.S.C. § 2254(d). Accordingly, AEDPA perhaps does not have anything
        to say about a state court’s decision that another state court did not abuse its
        discretion – it is concerned only with whether the actual adjudication of the merits
        of petitioner’s claim was contrary to, or an unreasonable application of, federal law.

        In “focus[ing]” its analysis almost exclusively on the Ohio trial court opinion, the majority

relies on Benge v. Johnson, 474 F.3d 236 (6th Cir. 2007) as authority. In Benge, the Ohio Supreme

Court analyzed the effect of an unobjected-to jury instruction in the context of plain-error analysis,

not under the governing, and less burdensome, Strickland standard. We held that “[b]ecause Benge

could have met his burden under Strickland[,] despite not being able to demonstrate plain error, [the

Ohio Supreme Court’s] analysis did not constitute an ‘adjudication on the merits’ of Benge’s

ineffective-assistance-of-counsel claim.” Benge, 474 F.3d at 246. Indeed, the Ohio Supreme Court’s

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analysis was extremely limited and consisted of only two sentences, holding that “even if the jury

instruction is deemed improper, such an error will not mandate reversal unless it constitutes plain

error. In other words, we must determine whether ‘but for the error, the outcome of the trial clearly

would have been otherwise.’” State v. Benge, 661 N.E.2d 1019, 1025 (Ohio 1996). The Ohio

Supreme Court neither mentioned Strickland nor the Sixth Amendment when disposing of

petitioner’s ineffective assistance of counsel claim.

       In Danner v. Motley, 448 F.3d 372 (6th Cir. 2006), we reached a similar conclusion. In our

review of petitioner’s asserted Strickland error, there was “no indication in the trial court’s

comments that it examined Danner’s Sixth Amendment claim. Nor [was] there evidence in the

Kentucky Supreme Court’s opinion that it considered the Sixth Amendment at all in ruling on

Danner’s claim.” Danner, 448 F.3d at 376. We noted in Danner that “[a]ny consideration of the

Sixth Amendment contained within the state case law upon which the state courts relied is too

attenuated to consider the Sixth Amendment claim to have been ‘adjudicated on the merits.’” Id.

       Our decisions in Benge and Danner were primarily concerned with the state court’s cursory

treatment of the petitioner’s Strickland claims and are therefore harmonious with the rule stated in

Payne and Davie – we must review “the last state court [decision] to [render] a reasoned opinion on

the issue[.]” Payne, 418 F.3d at 660 (emphasis added). Unlike the state court decisions in Benge

and Danner, the state appellate court opinion in the present case engaged in reasoned and

comprehensive analysis of Vasquez’s claims under Strickland. This case is readily distinguishable

from Benge and Danner because those decisions completely overlooked Strickland. The concerns

addressed in the Benge and Danner decisions are simply not implicated here.

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       Thus, I respectfully disagree with the majority’s approach and its characterization of Benge

and Danner. I would adhere to the rule established by Payne and Bell and review the Ohio Court

of Appeals decision because it was “the last state court to [render] a reasoned opinion on the issue.”

Payne, 418 F.3d at 660 (6th Cir. 2005).

                                                  II.

       Next, the majority concludes that the Ohio courts applied law contrary to Strickland v.

Washington by allegedly elevating the burden of persuasion necessary to sustain Vasquez’s

ineffective assistance of counsel claim. The majority thereafter launches into de novo review,

reconstructing the state court trial record, analyzing “cold” post-conviction hearing testimony, and

eventually holding that Vasquez is entitled to habeas relief.

       In Williams v. Taylor, 529 U.S. 362, 386 (2000), the Supreme Court emphasized our limited

role under AEDPA in adjudicating claims of state prisoners:

       [I]t seems clear that Congress intended federal judges to attend with the utmost care
       to state-court decisions, including all of the reasons supporting their decisions, before
       concluding that those proceedings were infected by constitutional error sufficiently
       serious to warrant the issuance of the writ . . . . [F]ederal habeas courts must make
       as the starting point of their analysis the state courts’ determinations of fact,
       including that aspect of a “mixed question” that rests on a finding of fact. AEDPA
       plainly sought to ensure a level of “deference to the determinations of state courts,”
       provided those determinations did not conflict with federal law or apply federal law
       in an unreasonable way. H.R. Conf. Rep. No. 104-518, p. 111 (1996). Congress
       wished to curb delays, to prevent “retrials” on federal habeas, and to give effect to
       state convictions to the extent possible under law. When federal courts are able to
       fulfill these goals within the bounds of the law, AEDPA instructs them to do so.

       The Strickland prejudice standard requires the petitioner to “show that there is a reasonable

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


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different.” Strickland, 466 U.S. at 694. Here, the majority holds that the Ohio trial court’s decision

was contrary to Strickland because its opinion states that prejudice occurs when “the result of

petitioner’s trial or legal proceeding would have been different had defense counsel provided proper

representation.” (Emphasis added.)1 According to the majority, the trial court’s omission of the

words “reasonable probability” in its recitation of the prejudice standard resulted in its application

of a different, more demanding measure of proof. Also, the majority notes that the Ohio Court of

Appeals correctly articulated the Strickland prejudice standard, but later omitted the words

“reasonable probability” in its discussion. My colleagues claim that the appellate court’s accurate

recitation of the law neither cured the trial court’s alleged error nor evidenced the appellate court’s

application of the proper burden of proof. I disagree.

        In Williams, the Supreme Court defined AEDPA’s “contrary to” clause: “The word

‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character or

nature,’ or ‘mutually opposed.’” 529 U.S. at 405 (quoting Webster’s Third New International

Dictionary 495 (1976)). “The text of § 2254(d)(1) therefore suggests that the state court’s decision

must be substantially different from the relevant precedent of this Court.” Id.; Ivory v. Jackson, 509

F.3d 284, 291 (6th Cir. 2007) (“state-court decision is considered ‘contrary to . . . clearly established

federal law’ if it is ‘diametrically different, opposite in character or nature, or mutually opposed.’”)

(citation omitted).


        1
        Most of the district court’s opinion focuses on its conclusion that the Ohio courts
unreasonably applied Strickland. In contrast, the majority’s opinion concludes that the Ohio courts
violated the “contrary to” clause, and thereafter engages in de novo review of petitioner’s ineffective
assistance of counsel claim.

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       In interpreting § 2254(d), the Court employed the following example of an application of law

that is “contrary to” clearly established federal law:

       If a state court were to reject a prisoner’s claim of ineffective assistance of counsel
       on the grounds that the prisoner had not established by a preponderance of the
       evidence that the result of his criminal proceeding would have been different, that
       decision would be “diametrically different,” “opposite in character or nature,” and
       “mutually opposed” to our clearly established precedent because we held in
       Strickland that the prisoner need only demonstrate a reasonable probability that . . .
       the result of the proceeding would have been different.”

Williams, 529 U.S. at 405-06 (citing Strickland, 466 U.S. at 694) (emphasis added).

       In the present case, to accept the majority’s position, a federal judge must conclude that the

omission of the words “reasonable probability”2 from the state courts’ description of Strickland’s

prejudice standard resulted in an application of a “diametrically different” burden of persuasion.

Such a conclusion is not supported by the facts and the law.

       In Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002) (per curiam), the Supreme Court held

that a state court’s “occasional shorthand reference” to the Strickland prejudice standard “may

perhaps be imprecise,” but it is not a repudiation of the standard that results in a decision that is

contrary to clearly established federal law. In Visciotti, the Court reversed the Ninth Circuit’s

decision that had held that a state court’s use of the word “probable” was a standard of prejudice

contrary to Strickland:

       The Court of Appeals made no effort to reconcile the state court’s use of the term
       “probable” with its use, elsewhere, of Strickland's term “reasonably probable,” nor
       did it even acknowledge, much less discuss, the California Supreme Court’s proper


       2
        As previously noted, the Ohio Court of Appeals recited the correct Strickland standard,
verbatim, at the beginning of its opinion.

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        framing of the question as whether the evidence “undermines confidence” in the
        outcome of the sentencing proceeding. This readiness to attribute error is
        inconsistent with the presumption that state courts know and follow the law. See,
        e.g., Parker v. Dugger, 498 U.S. 308, 314-316 (1991); Walton v. Arizona, 497 U.S.
        639, 653 (1990), overruled on other grounds, Ring v. Arizona, 536 U.S. 584 (2002);
        LaVallee v. Delle Rose, 410 U.S. 690, 694-695 (1973) (per curiam). It is also
        incompatible with § 2254(d)’s “highly deferential standard for evaluating state-court
        rulings,” Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), which demands that
        state-court decisions be given the benefit of the doubt.

Visciotti, 537 U.S. at 24 (emphasis added). The Visciotti opinion also suggests that a state court’s

accurate citation of Strickland evidences its application of the proper burden of proof. Visciotti, 537

U.S. at 22. Here, both state court decisions either correctly cite to Strickland or articulate the proper

burden of persuasion standard.

        Moreover, the Supreme Court has reversed our circuit on grounds substantially similar to the

position espoused by the majority. In Jackson v. Holland, 80 F. App’x 392 (6th Cir. 2003)

(unpublished), rev’d 542 U.S. 649 (2004) (per curiam), we had held that a state court’s use of

language at odds with Strickland evidenced its application of an elevated burden of proof:

        Although the [state] court initially quoted the “reasonable probability” language of
        Strickland, it immediately followed this statement with language that “[i]n a
        post-conviction proceeding, the defendant has the burden of proving his allegations
        by a preponderance of the evidence.” The [state] court later stated “it is asking too
        much that we draw the inference that the jury would not have believed Hughes at all
        had Melissa Gooch testified.” Furthermore, the state court concluded that Jackson
        “failed to carry his burden of proving that the outcome of the trial would probably
        have been different but for those errors.6
        __________________________________________________________________
                6
                  In evaluating [petitioner’s] contention that the lower court should have
        reopened the proof in the collateral proceeding to allow Melissa Gooch to testify, the
        Tennessee Court of Appeals also stated that Gooch’s statement “does not lead to the
        conclusion that the jury would have decided the case differently had it heard Gooch
        testify.”

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       __________________________________________________________________

                                               ***

       Even keeping mindful of the deferential gaze that we must cast upon the Tennessee
       Court of Criminal Appeals’s decision, we must conclude that the state court merely
       paid lip service to Strickland’s reasonable probability standard before imposing an
       inappropriately stringent burden upon [petitioner]. Other than the initial articulation
       of the Strickland standard, there is absolutely no evidence that the state court
       analyzed Petitioner’s claim under the proper “reasonable probability” standard.
       Indeed, all evidence within the opinion is to the contrary.

Jackson, 80 F. App’x at 407, n.6, 409 (emphasis in original) (internal quotation and citation

omitted).

       The Supreme Court reversed, Holland v. Jackson, 542 U.S. 649, 654-55 (2004) (per curiam),

holding that the state court’s initial recitation of the correct Strickland standard sufficiently

established that it understood and applied the proper burden of proof, notwithstanding its

“shorthand” references to it throughout the remainder of its opinion:

       The Sixth Circuit also erred in holding that the state court acted contrary to federal
       law by requiring proof of prejudice by a preponderance of the evidence rather than
       by a reasonable probability. The state court began by reciting the correct Strickland
       standard:


               “‘[T]he 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.’”
               App. to Pet. for Cert. 95 (quoting Strickland, 466 U.S., at 694).


       The Sixth Circuit nevertheless concluded that the state court had actually applied a
       preponderance standard, based on three subsequent passages from its opinion.



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       First was the statement that “[i]n a post-conviction proceeding, the defendant has the
       burden of proving his allegations by a preponderance of the evidence.” App. to Pet.
       for Cert. 95. In context, however, this statement is reasonably read as addressing the
       general burden of proof in postconviction proceedings with regard to factual
       contentions – for example, those relating to whether defense counsel’s performance
       was deficient. Although it is possible to read it as referring also to the question
       whether the deficiency was prejudicial, thereby supplanting Strickland, such a
       reading would needlessly create internal inconsistency in the opinion.

       Second was the statement that “it is asking too much that we draw the inference that
       the jury would not have believed Hughes at all had Melissa Gooch testified.” App.
       to Pet. for Cert. 96. Although the Court of Appeals evidently thought that this
       passage intimated a preponderance standard, it is difficult to see why. The quoted
       language does not imply any particular standard of probability.

       Last was the statement that respondent had “failed to carry his burden of proving that
       the outcome of the trial would probably have been different but for those errors.” Id.,
       at 98. We have held that such use of the unadorned word “probably” is permissible
       shorthand when the complete Strickland standard is elsewhere recited. See
       Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002) (per curiam).

       As we explained in Visciotti, § 2254(d) requires that “state-court decisions be given
       the benefit of the doubt.” Id. at 24. “[R]eadiness to attribute error is inconsistent
       with the presumption that state courts know and follow the law.” Ibid. The Sixth
       Circuit ignored those prescriptions.

                                                ***

       The judgment of the Sixth Circuit is reversed, and the case is remanded for further
       proceedings consistent with this opinion.

Id.; see also Urban v. Ohio Adult Parole Auth., 116 F. App’x 617, 627 (6th Cir. 2004) (unpublished)

(discussing Visciotti and Jackson and rejecting petitioner’s argument that a state court’s shorthand

description of Strickland, specifically, its statement that the “outcome probably would have been

different,” resulted in its application of an elevated burden of proof under Strickland).




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       In the present case, it is undisputed that the Ohio Court of Appeals began its opinion by

articulating the correct Strickland burden of persuasion standard. In the words of Judge Karpinski,

writing for the Court of Appeals of Ohio, Eighth District:

       A defendant must demonstrate that trial counsel’s performance fell below the
       objective standard of reasonable competence under the circumstances and that there
       exists a reasonable probability that, but for such deficiency, the outcome of the trial
       would have been different. State v. Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d
       373.

State v. Vasquez, No. 82156, 2004 WL 35766, at *3 (Ohio Ct. App. Jan. 8, 2004). The court of

appeal’s citation to State v. Bradley is significant because in it, the Ohio Supreme Court accurately

followed and applied the “reasonable probability” prejudice standard of Strickland. Bradley, 538

N.E.2d at 380.

       The concluding paragraphs of Judge Karpinski’s reasoned opinion on this ineffective

assistance of counsel claim are consistent with the law of Strickland, although the words “reasonable

probability” are not reiterated:

       During his post-conviction hearing, defendant presented numerous witnesses who did
       not testify at his trial. Their absence, however, does not demonstrate his counsel was
       ineffective and that the outcome of his trial would have been different had they been
       witnesses during his trial.

       On the contrary, the record shows that none of defendant’s witnesses offered any
       testimony to support defendant’s theory of innocence. None of their testimony
       challenges the victim’s account of the events leading to defendant’s convictions. We
       agree with the trial court’s conclusion that “not one of the witnesses who
       testified–neither the defendant, his family or others–offered any testimony that could
       have changed the outcome of defendant’s trial.” Trial Court Findings of Fact and
       Conclusions of Law, p. 25.

Vasquez, 2004 WL 35766, at *6.


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       Nonetheless, my colleagues conclude that, based on shorthand language used in the opinion,

the Ohio Court of Appeals applied law that was contrary to Strickland v. Washington. I disagree.

       In reaching this conclusion, the majority makes no concerted effort to distinguish the present

case from Visciotti or Jackson. This is untenable given the substantially similar imprecise or

shorthand language employed by the state court in Jackson, which arguably misdescribed

Strickland’s burden of proof. Jackson, 80 F. App’x at 407.

       Also, the majority reasons that because the state trial court opinion consistently omits the

words “reasonable probability,” such an omission creates a stronger inference of a heightened

standard of proof than an opinion that correctly recites the standard once and thereafter misdescribes

it.3 However, the state trial court opinion accurately cites both Strickland and State v. Bradley; see

Visciotti, 537 U.S. at 22 (suggesting that a state court decision’s accurate citation to Strickland

indicates that it knows the law and the applicable burden of proof).

       Under Visciotti and Jackson, the state court opinions employed permissible shorthand

language describing Strickland’s prejudice standard, which did not result in their application of a

“diametrically different” burden of proof under Williams. See Visciotti, 537 U.S. at 24; Jackson, 542

U.S. at 654; Williams, 529 U.S. at 405-06; Urban, 116 F. App’x at 627. The majority’s “readiness

to attribute error is inconsistent with the presumption that state courts know and follow the law. It

is also incompatible with § 2254(d)’s ‘highly deferential standard for evaluating state-court rulings’



       3
        Because the majority focuses its analysis on the state trial court opinion, it is necessary for
me to address the trial court’s omission of the words “reasonable probability” instead of reviewing
only the appellate court’s decision.

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. . . which demands that state-court decisions be given the benefit of the doubt.” Visciotti, 537 U.S.

at 24 (emphasis added) (citation omitted).

       For these reasons, I respectfully disagree with the majority’s conclusion that the Ohio courts

applied law contrary to Strickland v. Washington. The majority has made a fundamental error. Our

review of Vasquez’s petition for a writ of habeas corpus should be constrained by AEDPA

deference, not de novo.

                                                 III.

       The final issue is whether the Ohio Court of Appeals unreasonably applied Strickland to the

facts. 28 U.S.C. § 2254(d)(1). I concur with the majority opinion insofar as it holds that Vasquez

cannot base his ineffective assistance of counsel argument on his failure to investigate Karra

Vasquez and JoAnn Kitchen. Again, pursuant to Payne and Davie, my analysis focuses on the state

appellate court opinion because it is the last state court to render a reasoned decision on this claim.

       A state court decision unreasonably applies federal law “if the state court identifies the

correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts.” Irick v. Bell, 565 F.3d 315, 320 (6th Cir. 2009) (internal quotation omitted).

“[A] federal habeas court may not issue a writ under the unreasonable application clause ‘simply

because that court concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly.’” Id. (quoting Bell v. Cone, 535

U.S. 685, 694 (2002) (internal quotation and citation omitted)). “[T]he question under AEDPA is

not whether a federal court believes the state court’s determination was incorrect[,] but whether that

determination was unreasonable – a substantially higher threshold.” Irick, 565 F.3d at 320 (quoting

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No. 07-4466
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Owens v. Guida, 549 F.3d 399, 404 (6th Cir. 2008) (internal quotation and citation omitted)). After

assuming my proper role, I would hold that the Ohio courts did not unreasonably apply Strickland.

       For Vasquez to succeed on a claim for ineffective assistance of counsel, he must satisfy the

well-rehearsed two-prong Strickland test:

       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.

466 U.S. at 687.

       Moreover:

       [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too
       tempting for a defendant to second-guess counsel’s assistance after conviction or
       adverse sentence, and it is all too easy for a court, examining counsel’s defense after
       it has proved unsuccessful, to conclude that a particular act or omission of counsel
       was unreasonable . . . . Because of the difficulties inherent in making the evaluation,
       a court must 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. There are countless ways to provide effective
       assistance in any given case. Even the best criminal defense attorneys would not
       defend a particular client in the same way.

Id. at 689 (internal quotation and citation omitted; emphasis added).

       This high level of deference means that “[w]e address not what is prudent or appropriate, but

only what is constitutionally compelled.” United States v. Cronic, 466 U.S. 648, 665, n.38 (1984)

(emphasis added). In addition, “‘[s]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less


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No. 07-4466
Vasquez v. Bradshaw

than complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.’” Barnes v. Elo, 231 F.3d 1025, 1029 (6th Cir.

2000) (quoting Strickland, 466 U.S. at 691).

        At the state court level, Vasquez’s ineffective assistance of counsel claim challenged Butler’s

exclusion of certain family members as potential defense witnesses. Because I agree with the

majority that Vasquez cannot base his ineffective assistance of counsel claim on the exclusion of

Karra Vasquez and JoAnn Kitchen, my analysis focuses solely on Butler’s performance regarding

Becky Shaffer. Thus, if Butler’s decision to exclude Becky Shaffer from his potential defense

witnesses was, as the Ohio courts concluded, based on reasoned trial strategy and judgment, the issue

is resolved.

        The Ohio Court of Appeals concluded that “the record shows that none of defendant’s

witnesses offered any testimony to support defendant’s theory of innocence. None of their testimony

challenges the victim’s account of the events leading to defendant’s convictions. We agree with the

trial court . . . .” In reaching its conclusion, the appellate court relied on the following findings of

fact set forth in the state trial court decision:

        Butler testified that after he was assigned to the case about six weeks after
        arraignment, he reviewed the Court’s file, the clerk’s office docket, met with his
        client, ascertained that his client would not sign a speedy trial waiver pursuant to the
        Court’s concern about time, and proceeded immediately to conduct research and
        prepare for trial. Butler filed the appropriate discovery motions [and] met with his
        client at subsequent scheduled pre-trials.

                                                    ***

        Butler explained that he didn’t subpoena the family members because they were
        uncooperative and he had to keep in mind the other allegations of sexual molestation,

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Vasquez v. Bradshaw

       specifically from his sister’s daughter. He [] had to be concerned that family
       members would be aware of the rape allegation by [Vasquez’s] four-year-old niece
       in California.

                                                ***

       The defendant testified that while in County Jail, even he could not reach his wife,
       his sister-in-law Becky [Shaffer] or his mother-in-law, JoAnn Kitchen: none of them
       responded [and] [h]is wife stopped visiting him.

                                                ***

       [] “Becky” Shaffer testified [that] she and her husband had gone to bed and did not
       see the [victim or her mother and father] the night [the victim] stated that Robert
       Vasquez raped her.


       [Becky Shaffer] also suspected [Vasquez] of sexually abusing her son.

       Pursuant to 28 U.S.C. § 2254(e)(1), the district court is required to apply a presumption of

correctness to state court findings of fact unless the petitioner offers clear and convincing evidence

rebutting this presumption. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). In its review

of Vasquez’s habeas petition, the district court abandoned this presumption and did not circumscribe

its analysis to comport with AEDPA deference.

       In fact, the district court’s opinion challenged only one finding of fact upon which the state

appellate court relied, specifically, the fact that “[Becky Shaffer] suspected or was concerned that

Vasquez had sexually abused [her son.]” The district court found that “Becky Shaffer [actually]

testified that she took her son Aaron to the hospital on the night of August 4, 2000, because Steve

Loomis and ‘the other police officer’ [Zbikowski] told her to do so, [] not because she suspected or




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was concerned that Vasquez had sexually abused [her son.]” Id. The district court further noted

that:

        [a] closer analysis of Becky’s testimony [] makes this finding a significant stretch,
        if not an outright mischaracterization. This is especially so when considering the
        convoluted cross-examination questioning involving multi-part questions that elicited
        a “yes” and Becky’s repeated testimony that she only took her son in the ambulance
        because Steve Loomis and another police officer directed her to do so.

        A review of the post-conviction hearing transcript, however, does not rebut the state appellate

court’s reliance upon this factual finding by clear and convincing evidence. The post-conviction

transcript contains the following colloquy between the trial court, Vasquez’s counsel, and Becky

Shaffer (during Shaffer’s cross-examination):

        THE COURT : Ma’am, did you tell the hospital personnel the reason you were there
        [at the hospital] was because [A.L.] had made the allegation –

        BECKY SHAFFER: Yes.

        THE COURT : – of rape and you wanted to see whether or not your son had been
        abused?

        BECKY SHAFFER: Yes.

        VASQUEZ’S COUNSEL: I’m sorry, What was your answer?

        THE COURT : She said yes.

        VASQUEZ’S COUNSEL: Thank you very much.

                                                ***

        VASQUEZ’S COUNSEL: You said this is an emotional situation, correct?

        BECKY SHAFFER: Yes.

        VASQUEZ’S COUNSEL: So obviously this is a very serious situation?

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No. 07-4466
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       BECKY SHAFFER: Very.

       VASQUEZ’S COUNSEL: And you suspected that the same thing might have happened to your
       son, that’s how serious it was.

       BECKY SHAFFER: I didn’t know. Yes.

       Moreover, the remaining factual findings relied upon by the state appellate court remained

uncontroverted by the district court.4 Specifically, there is ample evidence supporting the appellate

court’s decision to affirm the state trial court’s ruling that Vasquez’s family members, including

Becky Shaffer, were uncooperative and unsympathetic to his defense. Butler’s decision to forgo

contacting Becky Shaffer is not so “incredible” amid swirling family-based allegations of spousal

abuse and separate family-based allegations of sexual molestation. In addition, Becky Shaffer was

slated to testify for the prosecution. Moreover, during the post-conviction hearing, Becky Shaffer

admitted that she suspected that Vasquez had sexually abused her son, a damning accusation if




       4
         Attorney Butler was appointed to represent Vasquez approximately six weeks before his
trial. On the same day that he was appointed, Butler met with Vasquez and asked him to execute a
speedy trial waiver. Vasquez refused. Butler filed appropriate discovery requests, researched and
prepared for trial, and met with Vasquez on several occasions. Butler decided to exclude Becky
Shaffer because she was not present at the time the alleged rape occurred (she was asleep in a
separate apartment, two floors above the basement level, which was the alleged crime scene), she
was a close family member (Vasquez was married to her sister), and that Butler was concerned that
Vasquez’s family members would testify or reveal details about the separate molestation allegations
levied by Vasquez’s niece in California. When Butler eventually reached JoAnn Kitchen, she
informed him that the family “w[as] not going to cooperate [] [] in any way” with his defense, and
that she had recently learned that Vasquez had been abusing her daughter (Vasquez’s wife, Karra)
for “an extended period of time.” During this same six-week period, Vasquez testified that he had
been “abandoned by his family,” including the same family members the majority now contends
could have aided in his defense. Vasquez made several attempts to contact Becky Shaffer, but she
never responded.

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revealed during his rape trial, and arguably evidencing Butler’s reasonable fears about Vasquez’s

family’s proclivity for damaging and harmful testimony.

       The majority claims that Butler knew that “Becky Shaffer was ideally situated to provide

information on the only avenue of defense available to Vasquez” and that she was likely to have

“relevant information.” The majority also asserts that Butler could have contacted Becky Shaffer

independently. These statements are speculative. Furthermore, according to Vasquez’s own

testimony, credited by the state trial court, he had been “abandoned by his family” during the six

weeks before his trial and had made several attempts to contact Becky Shaffer, but to no avail.

Vasquez’s concern regarding his family’s abandonment appropriately influenced Butler’s reasoned

and strategic decision not to pursue certain defense witnesses, including Becky Shaffer.

       As the Supreme Court has stated:

       [t]he reasonableness of counsel’s actions may be determined or substantially
       influenced by the defendant’s own statements or actions. Counsel’s actions are
       usually based, quite properly, on informed strategic choices made by the defendant
       and on information supplied by the defendant. In particular, what investigation
       decisions are reasonable depends critically on such information. For example, when
       the facts that support a certain potential line of defense are generally known to
       counsel because of what the defendant has said, the need for further investigation
       may be considerably diminished or eliminated altogether. And when a defendant has
       given counsel reason to believe that pursuing certain investigations would be
       fruitless or even harmful, counsel’s failure to pursue those investigations may not
       later be challenged as unreasonable.

Strickland, 466 U.S. at 691 (emphasis added).

       The district court and majority rely heavily on Ramonez v. Berghuis, 490 F.3d 482, 484 (6th

Cir. 2007) in support of their conclusion that in making his decision regarding Becky Shaffer, Butler

was not functioning as the counsel guaranteed by the Sixth Amendment. In Ramonez, however, the

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excluded defense witnesses actually witnessed the altercation that gave rise to the defendant’s

conviction. Ramonez, 490 F.3d at 488 (concluding that attorney’s decision to exclude defense

witnesses was constitutionally deficient because defendant insisted “months before trial” that the

three witnesses at issue could testify to what they saw when they witnessed the altercation, and that

each witness could testify that defendant did not force his way into the victim’s home). Here,

however, Becky Shaffer did not witness the crime. In fact, there were no witnesses to the alleged

crime other than A.L. and Vasquez. Becky Shaffer’s favorable testimony, if any, would be limited

to impeachment, only. Thus, Ramonez is easily distinguishable from the present case.

       The majority also holds that Butler was ineffective in failing to pursue potential impeachment

evidence contained in an Emergency Medical Services report form (EMS run sheet). The hearsay

evidence contained in the EMS report can be summarized as follows: When A.L. described the

attack to the paramedics, she allegedly stated that “he put it in.” The EMS run sheet also reports that

A.L. “took a shower later that day.”

       The state appellate court did not rule on this issue, and the record does not reveal whether

this claim was abandoned on appeal. Nonetheless, the state trial court decision (the last state court

to render a reasoned decision on this matter) ruled that Butler’s failure to impeach A.L. with the

EMS run sheet did not prejudice Vasquez’s defense because “it was consistent with her trial

testimony.” In its finding of facts, the state trial court found as follows:

       (B)     Claim that Counsel Did Not Cross-examine Victim Regarding EMS “Run
               Sheet”:

               At the hearing, Butler was presented with an unauthenticated copy of
               an Emergency Medical Services “run report” of the evening that

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               [A.L.] was transported to the hospital. The defendant asked questions
               of Butler concerning the fact that an unidentified person wrote
               thereon: “pt. st. he put it in her.” Apparently defendant was
               attempting to show, as he claimed via his Investigator’s affidavit in
               his Supplement, that this notation “is in complete contradiction to
               [A.L.’s] trial testimony”. Tom Pavlish’s Affidavit at para. 4. Butler
               testified that his understanding of this case was that it was oral sex,
               more specifically, that [A.L.] accused the defendant of putting his
               tongue in her – he had no information that it was anything else.

       The majority contends, however, that this conclusion is not a factual finding entitled to

deference under § 2254(e)(1) because “this [] reasoning is actually a holding that Vasquez has not

carried his burden to show prejudice resulting from his attorney’s failure to identify the run sheet as

useful impeachment evidence.” I disagree. The trial court’s finding was based in part on its

determination that A.L.’s trial testimony was consistent with her EMS run sheet statements. At the

very least, it is a mixed question that rests on a finding of fact, which is entitled to AEDPA

deference. See Williams, 529 U.S. at 389.

       To establish prejudice, Vasquez “must show that there is a reasonable probability that, but

for [Butler’s failure to discover this impeachment evidence], the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. In addition, AEDPA deference requires that we review the

state trial court’s decision for “unreasonable[ness] – a substantially higher threshold.” Irick, 565

F.3d at 320 (quoting Owens, 549 F.3d at 404) (internal quotation and citation omitted).

       I disagree with the majority’s holding that Butler’s failure to impeach A.L. with the

information contained in the EMS run sheet creates a reasonable probability that but for his failure

to do so, the result of his trial would have been different. See Strickland, 466 U.S. at 694. A.L.’s

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statements, as reflected in the EMS run sheet, do not contradict her trial testimony. A.L. testified

at trial that Vasquez “lick[ed] [her] private spot . . . [with] his tongue,” and answered “both” when

asked on direct examination whether he had touched her on “the inside or outside or both.” Thus,

her statement that “he put it in” is consistent with her trial testimony.5

         As we have explained, “in order to establish prejudice, the [] evidence . . . must differ in a

substantial way – in strength and subject matter – from the evidence actually presented . . . .” Hill

v. Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). As the majority concedes, Butler repeatedly

impeached A.L. and other state witnesses concerning A.L.’s trustworthiness and ability to tell the

truth.

         Most importantly, after according proper AEDPA deference, I do not agree that the Ohio

courts unreasonably applied Strickland to the facts. Butler’s conduct regarding Becky Shaffer was



         5
         Vasquez also argues that Attorney Butler was constitutionally ineffective for failing to cross-
examine A.L. regarding an ambiguous notation in the EMS run sheet, that she “took a shower later
that day.” In its finding of facts, the state trial court found as follows:

         Mr. Pavlish states in his affidavit that information in the EMS report also states “pt.
         st. she took a shower later that day” is inconsistent with Stephen Loomis’s testimony
         that “immediately after the incident [A.L.] fell asleep in his truck during the drive
         home and that he carried her into his home as she slept.” Tom Pavlish Affidavit at
         para. 6. At the hearing, counsel asked Butler questions concerning this notation, to
         which Butler replied that the night [A.L.] was transported, she had reported an
         incident that took place two weeks prior.

The potential impeachment of A.L. regarding this collateral matter is only marginally relevant to the
issue of whether the sexual molestation occurred. For this reason, it is not “reasonably probable”
that the outcome of the trial would have been different had this collateral impeachment occurred.
Most importantly, the more demanding standard of an unreasonable application of Strickland is
clearly not met.

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“reasonable precisely to the extent that [his] reasonable professional judgment[] support[ed] th[at]

limitation[] on [his] investigation[,]” Strickland, 466 U.S. at 691, and the EMS run sheet does not

contain impeachment evidence that is substantially different in strength and subject matter from the

impeachment evidence presented at trial. Hill, 400 F.3d at 318-19.

       “The question under AEDPA is not whether a federal court believes the state court’s

determination was incorrect but whether that determination was unreasonable – a substantially higher

threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Here, the Ohio state court decisions

were not unreasonable.

       In conclusion, the following comments by the Ohio trial court judge to Vasquez regarding

the performance of his attorney are illuminating:

       Based upon the fact that I had to sit through this trial just like everybody else did, it’s
       probably one of the most depressing things I had to do in the last eight years, quite
       frankly. I’m not looking forward to saying that my last trial was probably my worst,
       but I think you[r] attorney did everything he could to try to convince the jury that you
       weren’t guilty as charged. I think Mr. Butler didn’t have a lot to work with.

                                                  IV.

       For these reasons, I respectfully dissent. I would reverse the judgment of the district court

and deny the petition for a writ of habeas corpus.




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