                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0152n.06

                                        Case No. 14-1992

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                            FILED
BARTOLO FITCHETT,                                      )              Mar 17, 2016
                                                       )          DEBORAH S. HUNT, Clerk
       Petitioner-Appellant,                           )
                                                       )        ON APPEAL FROM THE
v.                                                     )        UNITED STATES DISTRICT
                                                       )        COURT FOR THE EASTERN
MITCH PERRY, Warden,                                   )        DISTRICT OF MICHIGAN
                                                       )
       Respondent-Appellee.                            )
                                                       )
                                                       )                             OPINION


BEFORE:        COLE, Chief Judge; SUHRHEINRICH and ROGERS, Circuit Judges.

       COLE, Chief Judge. Petitioner-Appellant Bartolo Fitchett was convicted in Michigan

state court on assault and firearms charges for shooting his long-time acquaintance, Edward

Esparza. Fitchett argues his trial counsel was ineffective for failing to investigate and call two

witnesses who Fitchett claims could corroborate his version of the altercation and exonerate him.

The district court denied relief under the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”) because the state court did not unreasonably apply clearly established federal law in

rejecting Fitchett’s ineffective assistance of trial counsel claim. For the same reasons, we affirm.
Case No. 14-1992, Fitchett v. Perry


                                      I.    BACKGROUND

   A. Factual Background

       Fitchett and the victim, Edward Esparza, tell very different versions of what occurred on

September 22, 2006. See Fitchett v. Perry, No. 2:11-cv-13358, 2014 WL 3555970, *1−2 (E.D.

Mich. July 11, 2014) (“Dist. Ct. Op.”).

       According to Esparza and Jacob Gorsuch, Esparza’s co-worker, they were walking to a

store after work when Fitchett drove up to them, got out of his truck, and confronted Esparza on

the street, complaining that Esparza talked about Fitchett behind his back. After the verbal

exchange, Fitchett went to his truck and returned with a pistol. Esparza “heard a bullet; his ears

rang; and he was dazed.” Id. at 1. Fitchett then threatened, “next time I’ll kill you,” and drove

off. Id. Gorsuch looked over Esparza and announced Esparza was hit. Then, they walked to a

friend’s house and someone called the police.        The two investigating officers agreed that

Esparza’s shoulder injury was consistent with a bullet grazing his shoulder.               Gorsuch

accompanied an officer to the scene of the shooting where a .25 caliber shell casing was tagged

as evidence. That officer also thought some of the holes in Esparza’s coat were consistent with a

fired bullet. The officers did not collect Esparza’s coat as evidence at the time of the crime, but

Esparza testified at trial that he still had the coat “in substantially the same condition as it was

after he was shot,” which he showed to the jury. Id. at *3.

       According to Fitchett, he was driving when Esparza approached his truck. Fitchett got

out of the truck and Esparza asked him for $20. The two argued and Esparza threatened Fitchett

with a screwdriver. Fitchett grabbed a cane from his truck, Esparza nicked Fitchett with the

screwdriver, and Fitchett hit Esparza twice with the cane, then drove off. Fitchett claims Esparza

and Gorsuch lied about Fitchett having a gun and the shooting.



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Case No. 14-1992, Fitchett v. Perry


   B. Procedural History

       Fitchett was charged with assault with intent to do great bodily harm less than murder,

Mich. Comp. Laws § 750.84; being a felon in possession of a firearm, Mich. Comp. Laws

§ 750.224f; carrying a firearm with unlawful intent, Mich. Comp. Laws § 750.226; and two

counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws §

750.227b. Fitchett was convicted on all counts and, after an initial appeal, sentenced to two

years’ imprisonment on each of the two felony firearm possession charges, to run concurrently,

and an additional 9.5 to 20 years for the remaining charges. People v. Fitchett, No. 277063,

2008 WL 4228354, at *1 (Mich. Ct. App. Sept. 16, 2008), resentenced by People v. Fitchett, No.

06-028169-FH (Mich. Cir. Ct. Saginaw Cnty. Dec. 12, 2008). The Michigan Supreme Court

denied leave to appeal. People v. Fitchett, 759 N.W.2d 381 (Mich. 2009) (table).

       In state post-conviction proceedings, the Michigan trial court denied Fitchett relief from

the judgment and the appellate courts denied leave to appeal. People v. Fitchett, No. 06-28169-

FH (Mich. Cir. Ct. Saginaw Cnty. Jan. 5, 2010) (ECF No. 8-14) (“Mich. Order” or “state court

decision”), leave to appeal denied, People v. Fitchett, No. 297662 (Mich. Ct. App. Aug. 3,

2010), leave to appeal denied, People v. Fitchett, 795 N.W.2d 139 (Mich. 2011) (table). In

2011, Fitchett petitioned for a writ of habeas corpus under AEDPA in the Eastern District of

Michigan. The district court denied relief on all of his claims, Dist. Ct. Op. at *5−15, but granted

a certificate of appealability (“COA”) on Fitchett’s ineffective assistance of trial counsel claim as

it related to counsel’s failure to investigate and call two witnesses, Fitchett v. Perry, No. 2:11-cv-

13358 (E.D. Mich. July 11, 2014). We declined to expand the COA. Fitchett v. Perry, No. 14-

1992 (6th Cir. Jan. 23, 2015) (per curiam).




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Case No. 14-1992, Fitchett v. Perry


                                                II.     ANALYSIS

    A. Standard of Review

         We review a district court’s denial of a writ of habeas corpus de novo. O’Neal v. Bagley,

743 F.3d 1010, 1014 (6th Cir. 2013). We may not grant habeas relief on a “claim that was

adjudicated on the merits in State court proceedings” unless the state court’s decision was

“contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.”                          28 U.S.C. § 2254(d)(1);1 see

Harrington v. Richter, 562 U.S. 86, 100 (2011); O’Neal, 743 F.3d at 1014−15. When a state

court has issued a decision on the merits of an ineffective assistance of counsel claim, AEDPA

requires us to apply a “doubly deferential standard of review”—that is deference to the state

court’s decision, which gives deference to counsel’s performance. Burt v. Titlow, 134 S. Ct. 10,

13 (2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).                          “[A]n unreasonable

application of federal law is different from an incorrect application of federal law.” Harrington,

562 U.S. at 101 (citation omitted). Federal habeas relief is precluded so long as “fairminded

jurists could disagree” on the correctness of the state court’s decision. Id. (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)).

         Here, because the Michigan appellate and supreme courts denied review, the last

reasoned opinion was issued by the Michigan trial court on January 5, 2010. See Mich. Order.

    B. Ineffective Assistance of Trial Counsel Claim

         Fitchett argues his trial counsel was ineffective for failing to investigate and call two

witnesses, Josie Dawkin and Santana Oviedo, who Fitchett claims could corroborate his version

of the facts. Under “clearly established Federal law, as determined by the Supreme Court of the

         1
           Fitchett does not rely on 28 U.S.C. § 2254(d)(2), which permits a federal court to grant habeas relief when
a state court’s decision on the merits is “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”

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Case No. 14-1992, Fitchett v. Perry


United States,” to succeed on a claim of ineffective assistance of counsel, a petitioner must show

both that (1) counsel provided deficient assistance falling below an objective standard of

reasonableness and (2) the defendant was prejudiced as a result. Harrington, 562 U.S. at 104;

Strickland v. Washington, 466 U.S. 668, 687 (1984); O’Neal, 743 F.3d at 1019. Fitchett’s claims

fail both requirements.

       1. Deficient Performance

       To satisfy the first prong of Strickland’s test, counsel’s performance must be objectively

unreasonable; that is “evaluat[ing] the conduct from counsel’s perspective at the time,” counsel

must have “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.” Harrington, 562 U.S. at 107, 104 (quoting Strickland,

466 U.S. at 689, 687). There is a “strong presumption” that counsel provided representation

within the “wide range” of reasonable professional assistance. Harrington, 562 U.S. at 104

(quoting Strickland, 466 U.S. at 689).

       As an initial matter, we cannot conclude that Fitchett’s counsel was deficient based solely

on Fitchett’s version. “It should go without saying that the absence of evidence cannot overcome

the ‘strong presumption that counsel’s conduct [fell] within the wide range of reasonable

professional assistance.’” Burt, 134 S. Ct. at 17 (quoting Strickland, 466 U.S. at 689). Here,

there is no indication of what defense counsel did with the information he received from Fitchett

about the potential witnesses.    Absent such evidence, Strickland’s deferential standard and

AEDPA’s doubly deferential standard require a finding that counsel’s performance was not

deficient. See id.; Carter v. Mitchell, 443 F.3d 517, 531 (6th Cir. 2006) (petitioner “provided no

basis for a finding that trial counsel’s investigation was unreasonable” where he did not

introduce “any statement from trial counsel describing what [counsel] did or did not do in

investigating [the petitioner’s] background”); Beuke v. Houk, 537 F.3d 618, 644 (6th Cir. 2008)
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Case No. 14-1992, Fitchett v. Perry


(rejecting ineffective-assistance claim on habeas review where petitioner “ask[ed] this court to

assume,” based on “sheer speculation,” that his trial counsel did not perform an adequate

mitigation investigation and where petitioner failed to provide “enough evidence to confirm or

deny that conclusion”). Even if such evidence did exist, counsel was not deficient in failing to

investigate and call Dawkin and Oviedo.

               a. Failure to Call Josie Dawkin

       Fitchett argues his counsel should have called his fiancée, Josie Dawkin, who treated

Fitchett’s alleged screwdriver injury after the altercation. In his state post-conviction petition,

Fitchett alleged that Dawkin had background information relevant to the case.

       Josie Dawkin, had firsthand knowledge of the background between the alleged
       victim and the Defendant in this case. Her testimony could of cast a more
       favorable light on the defense’s theories surrounding the actual events as they
       took place. Ms. Dawkin was the person that was present after the defendant and
       the alleged victim had previously had an altercation, she’d cleaned and dressed
       the wound of Bartolo Fitchett after being stabbed by the alleged victim.

Mot. for Relief from Judgment 25, ECF No. 8-13. The state court held that this was “totally

vague and non-specific as to what [Dawkin’s] testimony would have been. Since [Fitchett] has

not adequately briefed this point, the Court treats it as abandoned.”         Mich. Order at *3.

Accordingly, Fitchett procedurally defaulted this argument by failing to exhaust it in state court.

See 28 U.S.C. § 2254(b)(1)(A).

       Regardless, we may deny habeas relief notwithstanding Fitchett’s failure to exhaust the

claim in state court. See 28 U.S.C. § 2254(b)(2). Even assuming the stab wound to which

Dawkin could testify was from the altercation at issue, and not the previous altercation she

witnessed, Fitchett did not provide any evidence, such as an affidavit from Dawkin or himself,

regarding the specific facts about which Dawkin could have testified. See Landrum v. Mitchell,

625 F.3d 905, 921 (6th Cir. 2010) (rejecting ineffective-assistance claim based on the failure to


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Case No. 14-1992, Fitchett v. Perry


call as a witness a third-party who confessed the crime to his girlfriend, where defendant

provided no evidence that confession ever happened).

       Further, Dawkin’s testimony regarding a previous altercation between Fitchett and

Esparza would have been irrelevant to the present altercation and potentially inadmissible. See

Mich. R. Evid. 402 (“Evidence which is not relevant is not admissible.”), 404(b)(1) (“Evidence

of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity therewith.”). And while evidence of a screwdriver injury could

provide some corroboration for Fitchett’s version of events, it would not necessarily disprove the

prosecution’s version of events involving a gun. Dawkin’s testimony would be relevant if, e.g.,

Fitchett argued he shot Esparza in self-defense after Esparza attacked him with a screwdriver.

But Fitchett did not raise this theory at trial, nor does he raise it here. Instead, Fitchett argued

that an entirely different set of events occurred.

       Viewing the circumstances from counsel’s perspective, Dawkin’s potential testimony was

likely irrelevant and inadmissible, thus warranting no further investigation. Fitchett’s allegations

are insufficient to rebut the presumption that trial counsel acted within the “wide range of

reasonable professional assistance.”

               b. Failure to Call Santana Oviedo

       Fitchett also argues his trial counsel should have called Gorsuch’s step-nephew, Santana

Oviedo. The state court considered this claim on the merits and its decision is entitled to

deference. See 28 U.S.C. § 2254(d)(1).

       Oviedo provided an affidavit to trial counsel generally alleging that Gorsuch was “a bad

person, known for lying, uses drugs, [and] has hurt family members.” Mich. Order at *3.

Though Fitchett also alleged Oviedo could testify that Gorsuch would “change his testimony if

[Fitchett] would pay a certain bond so that Gorsuch could get out of jail,” this allegation was not
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Case No. 14-1992, Fitchett v. Perry


mentioned in Oviedo’s affidavit. Id. Fitchett argues Oviedo did not have to present everything

to which he would testify in his affidavit. The state court declared that “[a]ny law student—

much less a seasoned lawyer such as [Fitchett’s] trial counsel—would have known instantly

upon reading the Affidavit that Oviedo did not have admissible testimony to present.” Mich.

Order at *3; see also Mich. R. Evid. 801−806 (prohibiting hearsay testimony except under

certain circumstances not present here), 608(a)(1) (prohibiting certain character evidence).

       Whether evidence is admissible in a state trial is a question of state law. “[S]econd-

guessing evidentiary rulings is not our job . . . Federal habeas courts do not review state-court

rulings on state-law questions.” Burger v. Woods, 515 F. App’x 507, 509 (6th Cir. 2013) (citing

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)). To obtain relief on habeas, a state court’s

evidentiary ruling must be “so egregious that it results in a denial of fundamental fairness.” Id.

at 509 (quoting Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)). Fitchett does not argue that

the evidentiary findings were contrary to established federal law or an egregious violation of due

process.

       Even assuming Oviedo would testify as Fitchett claimed he would, he could not testify

that Gorsuch was lying about this particular altercation because he was not there. Applying

AEDPA’s doubly deferential standard, we cannot say the state court unreasonably applied

established federal law. See Strickland, 466 U.S. at 689. Viewing the circumstances from

counsel’s perspective, the state court found that Oviedo’s potential testimony was irrelevant and

inadmissible, thus warranting no further investigation.        Fitchett’s allegations are simply

insufficient to rebut the presumption that trial counsel acted within the “wide range of reasonable

professional assistance.”




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Case No. 14-1992, Fitchett v. Perry


               c. Failure to Investigate Josie Dawkin and Santana Oviedo

       Fitchett argues his counsel should have investigated the potential witnesses Josie Dawkin

and Santana Oviedo. Though Fitchett raised this argument in state court, its decision only

concluded that “Defendant fails to show that trial counsel was ineffective in failing to present the

two potential witnesses he mentions.” Mich. Order at *3 (emphasis added). While it is unclear

whether the state court’s ruling also applied to the failure to investigate, Fitchett’s claim fails

even on de novo review.

       Counsel has “a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. “[R]easonably

diligent counsel may draw a line when they have good reason to think further investigation

would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). The Supreme Court has held

that counsel is not ineffective for failing to investigate if “further investigation would have been

fruitless,” Wiggins v. Smith, 539 U.S. 510, 525 (2003), because the additional evidence “would

be of little help,” Strickland 466 U.S. at 699,        “can reasonably be expected to be only

cumulative,” Bobby v. Van Hook, 558 U.S. 4, 11 (2009), or carries “serious risks” of “expos[ing

defendant’s story] as an invention,” Harrington, 562 U.S. at 108.

       Here, Fitchett’s counsel had “good reason to think further investigation [into the potential

witnesses] would be a waste.” Rompilla, 545 U.S. at 383; see Strickland, 466 U.S. at 699

(“Although counsel understandably felt hopeless about respondent’s prospects . . . nothing in the

record indicates . . . that counsel’s sense of hopelessness distorted his professional judgment.”).

Fitchett does not allege that Dawkin or Oviedo were present during the altercation, could testify

that Fitchett did not have a gun at the scene, or corroborate that Fitchett did not own a gun.

At best, testimony from Dawkin and Oviedo would have been cumulative to the allegation that

Fitchett was injured by a screwdriver and that Gorsuch was lying. But this was irrelevant to
                                               -9-
Case No. 14-1992, Fitchett v. Perry


whether Fitchett shot at Esparza and neither Dawkin nor Oviedo could have testified with respect

to this key issue.

        The cases that Fitchett cites in which we held otherwise are distinguishable because they

involved counsel’s failure to investigate witnesses who were with the defendant at the time of the

crime. For example, in McClellan v. Rapelje, 703 F.3d 344, 347 (6th Cir. 2013), we held that

defense counsel was deficient for failing to interview eight eyewitnesses who corroborated

defendant’s version of the facts. See also Poindexter v. Booker, 301 F. App’x 522, 529 (6th Cir.

2008) (counsel was deficient for failing to interview witnesses who were present at the time of

the crime); Ramonez v. Berghuis, 490 F.3d 482, 489 (6th Cir. 2007) (same); Stewart v.

Wolfenbarger, 468 F.3d 338, 356 (6th Cir. 2006) (same); Clinkscale v. Carter, 375 F.3d 430, 443

(6th Cir. 2004) (counsel was deficient for failing to investigate alibi witness); Workman v. Tate,

957 F.2d 1339, 1345 (6th Cir. 1992) (same). By contrast, in Jackson v. Warden, 622 F. App’x

457, 463−65 (6th Cir. 2015), we held that counsel did not perform deficiently for failing to

investigate witnesses when there was no evidence “there [were] any known eyewitnesses to the

shooting that [petitioner’s] trial counsel failed to interview” and all of the “witnesses identified

and/or disclosed saw activity immediately before and after the shooting but none stated they saw

the actual instant of the shooting.” Here, neither Dawkin nor Oviedo were eyewitnesses or alibi

witnesses. At best, Dawkin “saw activity immediately . . . after” the altercation, but not “the

actual instant of the shooting.” There is no allegation that Oviedo witnessed any part of the

altercation or its aftermath.

        The other cases Fitchett cites are equally unavailing because counsel in those cases failed

to investigate evidence that could have exonerated the defendant. See McClellan, 703 F.3d at

347 (where defense theory was self-defense, counsel was deficient for failing to put forth any



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Case No. 14-1992, Fitchett v. Perry


evidence, including testimony by the defendant, that the victim charged at him with a gun);

Poindexter, 301 F. App’x at 529 (trial counsel was deficient for failing to interview two

witnesses who could corroborate that the defendant did not own guns); Couch v. Booker,

632 F.3d 241, 246 (6th Cir. 2011) (counsel was deficient for failing to investigate alternate

causes of death, where evidence of those alternate causes was in the record); English v.

Romanowski, 602 F.3d 714, 728 (6th Cir. 2010) (counsel was deficient for failing to call a

witness he promised to call during his opening and had held nearby for that purpose); Towns v.

Smith, 395 F.3d 251, 258 (6th Cir. 2005) (counsel was deficient for failing to interview witnesses

who identified perpetrators other than the defendant). Here, there is no allegation that either

Dawkin or Oviedo could corroborate that Fitchett did not own a gun or did not shoot Esparza.

At best, Dawkin could have corroborated that Fitchett sustained an injury, but she could not

testify that Fitchett was attacked first or even that Esparza attacked him. Further, Fitchett did not

argue that he shot Esparza in self-defense, he argued that he did not shoot at all and that no gun

was present.

                                                ***

       Based on the foregoing, “fairminded jurists could disagree” with the state court’s

decision that Fitchett’s trial counsel’s performance was not deficient. Thus, the state court

reasonably applied the first factor of Strickland.

       2. Prejudice

       To meet the second prong of Strickland’s test, there must be “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,” but it is insufficient “to show that the errors had some conceivable effect on the

outcome of the proceeding.” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at
                                                - 11 -
Case No. 14-1992, Fitchett v. Perry


693−94). Courts have routinely found no prejudice where there exists evidence other than that

which the potential evidence would have contradicted and the defendant’s proposed evidence

would not directly refute the prosecution’s. See Harrington, 562 U.S. at 112; O’Neal, 743 F.3d

at 1020.

       Because a Strickland claim requires a finding of both deficiency and prejudice, it was

reasonable for the state court not to consider the prejudice factor of Fitchett’s Strickland claim.

But upon de novo review, even if Fitchett’s counsel were deficient, Fitchett has not shown

prejudice.

       Fitchett argues that “[i]f two witnesses had corroborated Mr. Fitchett’s account of the

incident, it is reasonably likely that the jury might have believed Mr. Fitchett and found him

innocent of the crimes charged.” Fitchett Br. at 32. But Fitchett has not identified any witness

who can corroborate his account of the altercation—Dawkin and Oviedo were not there. Even if

Dawkin and Oviedo testified as Fitchett claims they would, they would not have contradicted the

other evidence that helped to convict Fitchett. This evidence included the photographic evidence

that Esparza was wearing the coat at the time of the shooting, that Esparza’s injuries were

consistent with a bullet grazing his shoulder, that Esparza had no injuries or bruises consistent

with being hit forcefully by a cane, that the pattern of bullet holes in his coat were consistent

with the prosecution’s theory, that two eyewitnesses saw Fitchett with a gun, that an eyewitness

identified Fitchett’s gun as a .25 caliber pistol, and that an officer tagged a .25 caliber shell

casing at the scene.    Fitchett’s argument also ignores that the prosecution presented three

witnesses besides Esparza and Gorsuch—the two investigating officers and the 911 operator.

Finally, Fitchett ignores that Dawkin’s and Oviedo’s testimony likely would have been

inadmissible to begin with.



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Case No. 14-1992, Fitchett v. Perry


       Fitchett has not shown a “reasonable probability that the outcome of the proceedings

would have been different had his counsel introduced” the testimony of Dawkin or Oviedo. It

seems clear that “the jury . . . was convinced by the Prosecution’s theory, and not by [Fitchett’s].

That was the jury’s prerogative.” Mich. Order at *3.

                                      III.   CONCLUSION

       The state court’s decision and the evidence of deficiency and prejudice here is such that

“fairminded jurists could disagree,” Harrington, 562 U.S. at 101, which is insufficient to grant

AEDPA relief. Accordingly, we affirm the denial of the writ.




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Case No. 14-1992, Fitchett v. Perry


        ROGERS, Circuit Judge, concurring.

        Counsel’s alleged failure to investigate or call Dawkin is troubling, and Dawkin’s

potential evidence is not easily dismissed as not worthy of counsel’s investigation. A juror in a

“he said/he said” case, hearing no evidence whatsoever corroborating one side’s version, might

readily find the other side’s version to be beyond a reasonable doubt. But some corroboration

could make all the difference. Dawkin’s potential evidence, as described to the state court, could

have provided some doubt-inducing corroboration of Fitchett’s version of the two distinct

stories. The argument was raised in the state court and in the district court, and if there was such

evidence, it could have made a difference. Affirmance is warranted, however, because Fitchett

has failed to present sufficient evidence that his counsel’s performance was deficient and has not

adequately presented an argument to us on appeal that the district court should have granted an

evidentiary hearing.

        At trial, Fitchett testified that Esparza attacked Fitchett with a screwdriver while Esparza

and Gorsuch were attempting to rob Fitchett. R. 8-6 at PageID #212. Fitchett testified that

Esparza and Gorsuch then fabricated the shooting in order to cover up their crime. Id. at PageID

#213.    Esparza and Gorsuch, in contrast, testified that Fitchett shot at Esparza without

provocation. R. 8-5 at PageID #173–174, #180. The jury was therefore presented with two

different versions of the events that occurred on September 22, 2006. Although Dawkin was not

present during the altercation and therefore could not testify about whether Fitchett shot Esparza

or about whether Esparza attacked Fitchett with a screwdriver, Dawkin could testify that she

treated a wound that Fitchett sustained after the altercation occurred.       Dawkin’s testimony

therefore would have corroborated Fitchett’s account of the altercation and contradicted Esparza

and Gorsuch’s version of events.



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Case No. 14-1992, Fitchett v. Perry


       Moreover, the jury’s verdict lacked overwhelming record support.             “A verdict or

conclusion only weakly supported by the record is more likely to have been affected by errors

than one with overwhelming record support.” Strickland v. Washington, 466 U.S. 668, 696

(1984). Although Fitchett was convicted of a number of firearm charges, the State did not

introduce any evidence at trial that indicated that the State had recovered a firearm from Fitchett.

Further, the officer who tagged the .25 caliber bullet shell casing that was discovered at the scene

of the altercation as evidence did not determine whether the casing was warm or emitted a smell

of exploded gunpowder. R. 8-5 at PageID #184, #186. The officer also was not aware if any

other testing had been performed after the shell was tagged as evidence. Id. at PageID #186.

The record therefore left open the possibility that the casing had been on the street for some time

before the incident.

       The record also did not definitively establish the identity of the person who first found

the .25 caliber shell casing at the scene of the altercation. The officer who tagged the casing as

evidence testified that she was the person who had first found the casing at the scene. Id. at

PageID #185. However, Gorsuch, who acknowledged that he had previously owned a .25 caliber

gun, also testified that he was the person who found the casing. Id. at PageID #182. The

evidence thus left open the possibility that Gorsuch planted the casing at the scene.

       The evidence also left open the possibility that Esparza’s injury was caused by Fitchett’s

striking Esparza with a cane rather than by Fitchett’s shooting Esparza with a gun. Esparza and

Gorsuch testified that the bullet that caused Esparza’s injury grazed his skin directly and made

several holes in his coat. R. 8-5 at PageID #177, #181. Esparza also testified that although he

was wearing a t-shirt under his coat, the bullet did not go through his t-shirt before exiting his

coat. Id. at PageID #177. As the Michigan Court of Appeals noted, “Esparza’s testimony that



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Case No. 14-1992, Fitchett v. Perry


the bullet that produced [his] grazing wound . . . did not damage the t-shirt he was wearing is []

difficult to reconcile with the damage to the jacket.” People v. Fitchett, No. 277063, 2008 WL

4228354, at *2 (Mich. Ct. App. Sept. 16, 2008). Further, Fitchett did not agree with the State’s

contention that Esparza’s wound was inconsistent with being struck by a cane. R. 8-6 at PageID

#216. A jury could therefore conclude, consistent with the record, that Esparza’s wound was

caused when Fitchett struck Esparza with a cane, not when Fitchett shot at Esparza with a gun.

Accordingly, given the weaknesses in the State’s case, a jury could have believed Fitchett’s

claim that he did not shoot Esparza if Dawkin had testified at trial.

       The state court appears to have treated as procedurally defaulted Fitchett’s claim

regarding evidence from Dawkin. The state court stated that Fitchett “suggest[ed] that [Dawkin]

had relevant testimony to present, but is totally vague and non-specific as to what that testimony

would have been.” R. 8-14 at PageID #470. The state court therefore concluded that “[s]ince

[Fitchett] has not adequately briefed this point, the Court treats it as abandoned.” Id. But

Fitchett did not procedurally default his claim that his counsel was ineffective for failing to

investigate or call Dawkin. Fitchett stated in his post-conviction brief to the state court that “Ms.

Dawkin was the person that was present after the defendant and the alleged victim had

previously had an altercation, she’d cleaned and the dressed the wound of Bartolo Fitchett after

being stabbed by the alleged victim.” R. 8-13 at PageID #450. These assertions are not totally

vague and non-specific about what Dawkin’s testimony would have been. Fitchett clearly stated

that Dawkin would have testified that she treated the wound that Esparza allegedly gave Fitchett

with a screwdriver.

       Because the state court erroneously rejected Fitchett’s claim as procedurally defaulted

(rather than denying the claim on the merits, as the State would read the state court’s opinion),



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we review the claim de novo. The claim fails not because evidence like that described above

need not have been investigated or presented, but because there was not sufficient indication that

such evidence existed. The Supreme Court has held “that counsel should be ‘strongly presumed

to have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.’” Burt v. Titlow, 134 S. Ct. 10, 17 (2013) (quoting Strickland,

466 U.S. at 690). The Supreme Court has also held that “[i]t should go without saying that the

absence of evidence cannot overcome the ‘strong presumption that counsel’s conduct [fell]

within the wide range of reasonable professional assistance.’” Burt, 134 S. Ct. at 17 (quoting

Strickland, 466 U.S. at 689).

       Fitchett did not meet his burden to overcome the presumption that his counsel provided

reasonable professional assistance. Fitchett alleged in his state post-conviction petition that his

counsel did not investigate or call Dawkin as a witness even though Fitchett told his counsel that

Dawkin had treated a wound that Fitchett received after Esparza stabbed him. R. 8-13 at PageID

#449–450. However, as stated in part II.B.1.a of the majority opinion, Fitchett submitted no

affidavit from himself or Dawkin that substantiated Fitchett’s claim that Dawkin could testify

that she treated Fitchett’s wound. Fitchett also did not submit an affidavit of his own detailing

what he told his counsel about Dawkin. Further, as stated in part II.B.1 of the majority opinion,

the record does not indicate what Fitchett’s counsel did with the information that he allegedly

received from Fitchett about Dawkin.       Fitchett therefore has not provided support for his

allegations that he told his counsel that Dawkin could testify that she treated Fitchett’s wound,

that Dawkin could actually testify as Fitchett claimed, or that his counsel failed to investigate

Dawkin.     Accordingly, Fitchett’s unsubstantiated allegations are not sufficient to rebut

Strickland’s strong presumption that his counsel provided reasonable professional assistance.



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Case No. 14-1992, Fitchett v. Perry


        In his reply brief, Fitchett contends that rather than affirming the denial of his petition,

this court should remand this case to the district court for that court to hold an evidentiary

hearing to resolve the factual issue of whether Fitchett’s counsel investigated Dawkin. Appellant

Reply Br. at 23–24. “Our general rule is that an appellant abandons all issues not raised and

argued in its initial brief on appeal.” Guilmette v. Howes, 624 F.3d 286, 292 (6th Cir. 2010)

(internal citation and alteration omitted). In his habeas petition, Fitchett asked the district court

to grant him a new trial on the basis of his claim that his counsel was ineffective when he failed

to investigate Dawkin or “in the alternative an evidentiary hearing to better develop the factual

basis of the issue.” R. 1 at PageID #29. Although the district court did not explicitly address

Fitchett’s request for an evidentiary hearing, the district court held that “[h]abeas relief . . . is not

warranted on [Fitchett’s] claims about trial counsel” and denied Fitchett’s petition in its entirety.

R. 15 at PageID #514, #521. Despite this denial, Fitchett did not contend in his opening brief on

appeal that the district court abused its discretion in denying his request for an evidentiary

hearing. Fitchett therefore abandoned an argument on appeal that he should have been granted

an evidentiary hearing in the federal district court.

        With respect to counsel’s failure to investigate or call Oviedo, I agree as well that

affirmance is warranted. The state court determined that Fitchett’s ineffective-assistance-of-

counsel claim failed because Oviedo’s testimony would not have been admissible at trial, and

this ruling is given deference under AEDPA. R. 8-14 at PageID #470. The state court’s ruling

applied to both Fitchett’s claim that his counsel was ineffective when he failed to call Oviedo

and to Fitchett’s claim that his counsel was ineffective when he failed to investigate Oviedo.

Essentially for the reasons given in part II.B.1.b of the majority opinion, the state court




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Case No. 14-1992, Fitchett v. Perry


reasonably applied clearly established federal law when it held that Fitchett failed to show that

his counsel was ineffective for failing to investigate or call Oviedo.




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