                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0428p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                              X
                                       Petitioner-Appellee, -
 ALTON HIGGINS,
                                                               -
                                                               -
                                                               -
                                                                   No. 05-1564
              v.
                                                               ,
                                                                >
 PAUL RENICO,                                                  -
                                     Respondent-Appellant. -
                                                              N
                               Appeal from the United States District Court
                             for the Eastern District of Michigan at Bay City.
                            No. 02-10124—David M. Lawson, District Judge.
                                         Argued: September 20, 2006
                                 Decided and Filed: November 20, 2006
            Before: CLAY and GILMAN, Circuit Judges; STAFFORD, District Judge.*


                                             _________________
                                                   COUNSEL
ARGUED: William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellant. Chaundra C. King, SQUIRE, SANDERS & DEMPSEY, Cleveland, Ohio, for
Appellee. ON BRIEF: William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellant. Chaundra C. King, Howard J.C. Nicols, SQUIRE, SANDERS &
DEMPSEY, Cleveland, Ohio, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        STAFFORD, District Judge. Respondent, Paul Renico (“Renico”), appeals a conditional
grant of habeas corpus relief to Petitioner, Alton Higgins (“Higgins”), under 28 U.S.C. § 2254. We
AFFIRM.




        *
           The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida,
sitting by designation.


                                                         1
No. 05-1564              Higgins v. Renico                                                                  Page 2


                                             I. BACKGROUND
        On April 3, 1995, Alvin Ramsey (“Ramsey”) was shot to death as he sat in the driver’s seat
of a car parked in a Detroit neighborhood. Alton Higgins (“Higgins”) was one of three people
sitting with Ramsey in that automobile at or near the time Ramsey was shot. Another of those three
people, Michael Adams (“Adams”), exited the vehicle and fled on foot before shots were fired,
leaving Higgins, Ramsey and Wayne Young (“Young”) in the car.
         Not long after the shooting, 16-year-old Young, wearing a green jacket, surrendered to the
police while the police were canvassing the neighborhood. The police were looking for Young
because “word on the street” was that Young was the shooter and because a witness had reported
that a black male wearing a green jacket was seen running from the car after two shots were fired.
Although he denied shooting Ramsey, Young admitted that he had been in the car with Ramsey,
sitting next to him in the front passenger seat, when a guy sitting in the rear seat behind Ramsey put
a gun to Ramsey’s neck. Identifying the man in the rear seat only as “211,” Young explained that
he did not know the man’s real name. In his own words, Young continued: “I got out and1 started
running. I heard one shot as I turned the corner I heard a second shot.” J.A. Supp. at 2. When
asked specifically where he was when he heard the shots, Young said: “First time I had just got out
the car. The second shot when I was on the side of the house.” Id. at 3. When asked if he saw the
shooting, Young replied: “I only heard the shots.” Id. The police took forensic samples from
Young’s hands and thereafter released him from custody. Those forensic samples, the results of
which were not known until after Higgins was charged with murder, showed that Young had
gunpowder residue on both hands.
         The next day, April 4, 1995, Higgins was questioned about the shooting. In a nutshell,
Higgins denied shooting Ramsey. According to Sergeant Ralph Openshaw (who related Higgins’s
statement at trial), Higgins said that he, Young, Adams, and some other friends were sitting on a
front porch discussing who might have some guns for sale when Young suggested that Ramsey (then
sitting in a car on the street in front of them) possibly had guns for sale. Higgins said that, when he
and Young approached Ramsey, Ramsey indeed stated that he would sell a .25 caliber gun that he
had at his house. According to Higgins, Young returned to the porch and told his friends that he was
going to purchase the gun for money and possibly some fake cocaine. Higgins told Openshaw that
Young, having seen that Ramsey was armed, armed himself with a .45 caliber or .9 mm handgun.
Higgins admitted that he and Young walked down the street to Ramsey’s house, where Ramsey
retrieved a .25 caliber gun, then fired a shot into the air to show Young and Higgins that the gun
was, in fact, operable and in good condition. Higgins said that the men then got into Ramsey’s car
to negotiate the price of the gun. According to Higgins, Young was sitting in the rear seat behind
Ramsey; Higgins was sitting in the right front passenger seat next to Ramsey. Higgins said that,
after they completed their negotiations, Young asked Ramsey to drive back down the street. As
Ramsey started to drive, Young pulled a gun from his coat and said: “We want everything you got.”
Higgins told Sergeant Openshaw that he (Higgins) jumped out of the car before he heard two shots
and before he saw Ramsey’s car hit a van parked on the side of the street.
       Later that same day, April 4, 1995, Young was shown Sergeant Openshaw’s report of
Higgins’s statement. After seeing that report, and after hearing that he would get life in jail if he
refused to say who shot Ramsey, Young admitted that he knew the name of the man who shot
Ramsey. That man, according to Young, was Alton Higgins. Young went on to explain:




        1
          Three Joint Appendices were filed and will be referred to as follows: Joint Appendix (“J.A.”), Supplemental
Joint Appendix (“Supp. J.A.”), and Joint Appendix Supplement (“J.A. Supp.”).
No. 05-1564           Higgins v. Renico                                                      Page 3


               When I saw Alton pull a gun out of his coat and put it to Mr.
               Ramsey’s neck, Mike [Adams] jumped out of the car. Alton said:
               “Give me the .32.” Mr. Ramsey opened his door and put the car in
               drive, and Alton hit him on the back of his head with the gun. I
               jumped out of the car and heard a gunshot coming from within the
               car. I started running to the vacant house on Coplin . . . with Mike.
               As I started to run I heard a second shot coming from out of the car.
J.A. Supp. at 6.
       Two weeks later, on April 17, 1995, Young testified at a preliminary hearing on the murder
and robbery charges then lodged against Higgins. Higgins’s counsel, Walter Pookrum (“Pookrum”),
was present at the preliminary hearing and questioned Young. Young again said that he was not in
the vehicle at the time of the shooting, that only Higgins and Ramsey were in the car when he
(Young) heard two shots fired. When asked where he was when he heard the shots, Young replied:
“My sister’s driveway.” J.A. at 200. At the time of the preliminary hearing, Pookrum did not have
copies of Young’s prior statements, and the result of the forensics test of samples taken from
Young’s hands was still not known. Indeed, the result of the forensics test was not known until
August of 1995.
        Higgins was charged with felony murder/larceny, armed robbery, and possession of a firearm
during the commission of a felony. At trial, the medical examiner testified that Ramsey died almost
immediately as a result of a single gunshot through the back of his neck that exited just below the
collarbone in the area of his right shoulder. When asked whether he could determine if the firing
was close-range, the medical examiner replied: “There was no evidence of any close range on the
skin.” J.A. at 131. A police officer later testified that gun residue was found on the hands of both
Ramsey and Young.
         Over Pookrum’s objection, Young’s preliminary hearing testimony was read into the record
at trial after Young failed to appear on the day he was subpoenaed to testify. The trial court found
that Young was “deliberately evading” and was, therefore, unavailable.
        On the fourth day of trial, Young was located. He testified on direct that he had been
threatened by telephone and in writing not to testify in the case. He did not say who had threatened
him. He also testified that, while Higgins was sitting in the rear of the automobile behind Ramsey,
Ramsey handed Higgins the .25 caliber handgun, without a clip. When the prosecutor asked him
what happened after Higgins was given the .25 caliber gun, Young responded: “So after [Higgins]
got the .25 in his hand, I pulled – he pulled out the .45, saying give it up.” J.A. at 165. According
to Young, Ramsey tried to get out of the car, but Higgins shot him before he could escape. Young
denied that he had fired any of the guns that day.
        Pookrum did not anticipate Young’s appearance on the last day of trial. He therefore asked
that he be given until after the lunch hour to review Young's two sworn statements and preliminary
hearing testimony in order to prepare for his cross-examination. Inexplicably, Pookrum had not
reviewed Young’s prior statements before Young appeared in court. When the trial court agreed to
give him only a brief period of time to prepare, Pookrum declined to do any cross-examination at
all. As he explained in open court: “Well, I’m not ready to cross-examine this man. . . . It will be
malpractice for me to proceed.” J.A. at 275. Thus, the only person who directly implicated Higgins
as Ramsey’s killer was never cross-examined in front of the jury.
        After the jury returned guilty verdicts on all three counts, Higgins was sentenced to two
concurrent terms of life imprisonment for first-degree felony murder and armed robbery plus two
years’ imprisonment for a felony firearm conviction.
No. 05-1564           Higgins v. Renico                                                        Page 4


        While the case was on appeal, new appellate counsel filed a motion to remand so that he
could file a motion in the trial court for a new trial based upon an affidavit by Young in which
Young recanted his trial testimony. The motion to remand was granted, but Young failed to appear
at the hearing on Higgins’s motion for new trial. The trial court accordingly dismissed the motion
for new trial, and the case was returned to the court of appeals.
        Among other things, Higgins argued on direct appeal that “[t]rial counsel’s lack of
preparation and refusal to cross-examine the prosecution’s key witness deprived Mr. Higgins of the
effective assistance of counsel and a fair trial.” J.A. at 238. In an opinion dated March 30, 1999,
the state court of appeals affirmed Higgins’s felony murder and felony firearm convictions but
vacated his conviction and sentence for armed robbery. People v. Higgins, No. 195865, 1999 WL
33451714, at *3 (Mich. Ct. App. March 30, 1999) (unpublished decision); Supp. J.A. at 89. In
rejecting Higgins’s ineffective assistance of counsel claim, the state court of appeals wrote:
                         Finally, defendant contends that he received ineffective
               assistance of counsel. Specifically, defendant contends he was
               denied a fair trial when his counsel refused to cross-examine Young.
               We disagree. “To prove a claim of ineffective assistance of counsel
               . . . a defendant must show that counsel’s performance fell below an
               objective standard of reasonableness and that the deficient
               performance prejudiced the defense so as to deny defendant a fair
               trial.” People v. Smith, 456 Mich. 543, 556; 581 N.W.2d 654 (1998).
               We conclude that defendant has failed to establish that he was denied
               effective assistance of counsel because he is unable to show that he
               was prejudiced by counsel’s inaction.
Id. On November 29, 1999, the Michigan Supreme Court denied Higgins’s application for leave to
appeal the appellate decision of March 30, 1999. People v. Higgins, 604 N.W.2d 681 (Mich. 1999);
Supp. J.A. at 90. On February 29, 2000, the Michigan Supreme Court denied Higgins’s motion for
reconsideration. People v. Higgins, 609 N.W.2d 189 (Mich. 2000); Supp. J.A. at 91.
        Higgins thereafter filed a motion for relief from judgment, including among his seventeen
claims for relief the following: “Defense counsel denied defendant of [sic] his right to effective
assistance of counsel where he failed to effectively cross-examine the sole prosecution eyewitness
and denied defendant of [sic] his right to confrontation and a fair trial.” J.A. at 33. The trial court
denied Higgins’s motion for post-conviction relief, and Higgins was thereafter denied leave to
appeal by the Michigan Court of Appeals and the Michigan Supreme Court.
        On May 10, 2002, Higgins filed a petition for habeas corpus relief in federal court. Included
among his many claims for relief was the following: “Petitioner Alton Higgins was denied the
effective assistance of (trial) counsel in violation of the United States Constitution’s Sixth
Amendment. . . . Counsel’s failure to prepare/investigate and abandonment of his duty to cross-
examine Wayne Young denied petitioner his constitutional rights to due process and to confront his
accuser.” J.A. at 64, 68. In his response to Higgins’s petition, Renico did not argue that Higgins’s
failure-to-cross-examine claim was procedurally defaulted. Indeed, given the state court record,
such an argument would not succeed.
        The district court found merit to only one of Higgins’s claims–his claim that, by abandoning
the duty to cross-examine the key, and only, eyewitness against Higgins at trial, Pookrum violated
his client’s Sixth Amendment right to the effective assistance of counsel. Noting that the state courts
No. 05-1564              Higgins v. Renico                                                      Page 5


made no finding under the performance prong of the Strickland2 test for ineffective assistance of
counsel, the district court evaluated Pookrum’s performance de novo, finding that “[t]he failure of
counsel to participate in a critical phase of the trial, and to subject the State’s case to meaningful
adversarial testing, on the sole ground of lack of preparation, was not a reasonable strategic decision
entitled to deference.” J.A. at 286 (internal quotation marks and citation omitted). The district court
thus found that Higgins’s “trial counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms.” Id.
        The district court did not defer to the state courts’ finding that Higgins failed to demonstrate
prejudice, explaining that “[t]he State court of appeals’ discussion of the prejudice prong of the
Strickland test was truncated” and represented “an unreasonable application of Supreme Court
precedent that has been clearly established for several years.” J.A. at 289. Unlike the state courts,
the district court found that prejudice clearly “inured to [Higgins] from his trial attorney’s
substandard performance.” Id. Having determined that Higgins satisfied both prongs of the
Strickland test for ineffective assistance of counsel, the district court ordered Renico to “release
[Higgins] from custody unless the State brings him to trial again within seventy days.” Id. at 303.
Renico thereafter filed this timely appeal.
                                      II. STANDARD OF REVIEW
        The lone issue before this court is whether Higgins’s Sixth Amendment right to the effective
assistance of counsel was violated when his trial attorney failed to cross-examine the only
eyewitness against him. We review de novo a district court’s determinations concerning a habeas
petitioner’s ineffective assistance of counsel claim. Moss v. Hofbauer, 286 F.3d 851, 858 (6th Cir.
2002).
        Because Higgins’s habeas petition was filed after April 24, 1996, this court’s review is
governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214 (1996). As amended, the AEDPA provides, in relevant part, that a federal
court may not grant a petition for writ of habeas corpus unless the state court adjudication of the
claim “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.” 28 U.S.C.
§ 2254(d). Furthermore, state court determinations of factual issues are presumed to be correct
unless the habeas petitioner rebuts this presumption of correctness by clear and convincing evidence.
       In Williams v. Taylor, 529 U.S. 362 (2000), Justice O’Connor described the circumstances
under which a federal habeas court may grant a writ of habeas corpus:
                 Under the “contrary to” clause [of § 2254(d)], a federal habeas court
                 may grant the writ if the state court arrives at a conclusion opposite
                 to that reached by [the Supreme] Court on a question of law or if the
                 state court decides a case differently than [the Supreme] Court has on
                 a set of materially indistinguishable facts. Under the “unreasonable
                 application” clause, a federal habeas court may grant the writ if the
                 state court identifies the correct governing legal principle from [the
                 Supreme] Court’s decisions but unreasonably applies that principle
                 to the facts of the prisoner’s case.
Id. at 412-13 (Justice O’Connor’s Part II majority opinion). Notably, an “unreasonable” application
is an “objectively unreasonable” application. Id. at 409.


       2
           Strickland v. Washington, 466 U.S. 668 (1984).
No. 05-1564             Higgins v. Renico                                                      Page 6


       Where a state court does not evaluate the merits of a petitioner’s federal claim, the
deferential standard of review mandated by the AEDPA does not apply. As this court has previously
explained:
               [The AEDPA] by its own terms is applicable only to habeas claims
               that were adjudicated on the merits in State court. . . . Where . . . the
               state court did not assess the merits of a claim properly raised in a
               habeas petition, the deference due under AEDPA does not apply.
               Instead, this court reviews questions of law and mixed questions of
               law and fact de novo.
Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (internal quotation marks and citations
omitted); see also Wiggins v. Smith, 539 U.S. 510, 534 (2003) (reasoning that because no state court
had reached the prejudice prong of the Strickland analysis, the Supreme Court’s review of that issue
was not circumscribed by a state court’s conclusion with respect to that issue).
                                         III. DISCUSSION
        In his brief before the state appellate court, Higgins argued his ineffective assistance claim
as follows:
                       The record reveals, clearly, that the trial counsel was deficient
               in his representation of Mr. Higgins. The key witness, Mr. Young,
               was the person who made the identification of Mr. Higgins as the
               shooter. Mr. Young had kept himself in hiding through the first days
               of the trial. Mr. Young had admitted to the initial plan to trick Mr.
               Ramsey and get his guns through the scam. Trial counsel refused to
               cross-examine Mr. Young, due to his counsel’s apprehension that to
               do so would constitute malpractice, as he was admittedly unprepared
               (TT, vol. IV, p. 57). The reason for the failure to cross-examine was,
               thus, placed into the record. Even without counsel’s express
               admission, it would be obvious that there could be no reasonable
               excuse or rationale or sound trial strategy for a failure to cross-
               examine the prosecution’s key witness.
                         ....
                       . . . The failure to effectively cross-examine Mr. Young was
               a failure of the right to effective counsel; counsel failed to utilize the
               power of cross-examination when it counted: with the key witness.
               Instead, the jury was left with essentially unrebutted, and untested,
               testimony that Mr. Higgins had the gun and shot the victim. The
               evidence of Mr. Higgins’s guilt was not overwhelming, and consisted
               of the testimony of Mr. Young; the prejudice to this defendant is
               obvious.
Supp. J.A. at 135-37.
         Addressing this claim, without specifically citing any federal law, the state court of appeals
set out the Supreme Court’s Strickland test for ineffective assistance of counsel. Under Strickland,
a defendant must establish both that his counsel’s performance at sentencing was seriously deficient
and also that he suffered prejudice as a result of such deficiency. Strickland, 466 U.S. at 687.
Without discussion, the state appellate court made a determination, albeit conclusory, that Higgins
suffered no prejudice as a result of his attorney’s failure to cross-examine Young. This court must,
No. 05-1564               Higgins v. Renico                                                                      Page 7


accordingly, review the state court’s prejudice determination under the AEDPA’s deferential
standard. Because the state court did not address the performance prong of the Strickland test, this
court considers de novo whether counsel’s performance was seriously deficient.3
         When complaining of his counsel’s deficient performance, a convicted defendant must show
that counsel’s representation fell below “an objective standard of reasonableness” under “prevailing
professional norms.” Strickland, 466 U.S. at 688. A reviewing court must judge the reasonableness
of counsel’s actions on the facts of the defendant’s case, viewed from counsel’s perspective at the
time, recognizing that “counsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. In essence,
a defendant has the burden of proving, by a preponderance of the evidence, that “counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687.
        “Because advocacy is an art and not a science, . . . [counsel’s] strategic choices must be
respected” if they were “made after thorough investigation of law and facts relevant to plausible
options.” Id. at 681, 690. Such choices can vary greatly from attorney to attorney and from case
to case, and reviewing courts must scrutinize these choices with a great deal of deference. Indeed,
such strategic choices are virtually unchallengeable. Id. As explained by the Supreme Court:
                  Judicial 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. A fair assessment of attorney performance
                  requires that every effort be made to eliminate the distorting effects
                  of hindsight, to reconstruct the circumstances of counsel’s challenged
                  conduct, and to evaluate the conduct from counsel’s perspective at
                  the time. 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.
Id. at 689 (internal quotation marks and citations omitted). Thus, counsel cannot be adjudged
ineffective for performing in a particular way in a case, as long as the approach taken “might be
considered sound trial strategy.” Id.
        In this case, Higgins contends that his trial counsel’s failure to confront and cross-examine
Young, the sole eyewitness to–and possible perpetrator of–the murder of Ramsey, had no tactical
justification and, instead, amounted to constitutionally deficient performance. The district court
agreed with this contention, explaining:



         3
           Although the Supreme Court in Strickland discussed the performance prong of an ineffectiveness claim before
the prejudice prong, the Court made clear that “there is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Strickland, 466 U.S. at 697. As the Court noted: “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should
be followed.” Id. It was thus entirely proper for the Michigan Court of Appeals to consider only Strickland’s second
prong, the prejudice prong, when evaluating Higgins’s appeal.
No. 05-1564           Higgins v. Renico                                                       Page 8


                       The record in this case . . . leaves no doubt about the reason
               for attorney Pookrum’s failure to cross-examine the key prosecution
               witness in this case. He candidly admitted that he was not prepared
               to go forward, and when his request for more preparation time was
               denied, he blithely forfeited his client’s right to confront Wayne
               Young and subject his direct testimony to cross-examination, “the
               greatest legal engine ever invented for the discovery of truth.”
               California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d
               489 (1970) (quoting Wigmore, Evidence 1367). Finding that this
               decision on Pookrum’s part was unreasonable creates no danger of
               trenching upon sound trial strategy after the fact, nor does it implicate
               the injunction that “an ineffective-assistance-of-counsel claim cannot
               survive so long as the decisions of a defendant’s trial counsel were
               reasonable, even if mistaken.” Campbell v. Coyle, 260 F.3d 531, 551
               (6th Cir. 2001). The failure of counsel to participate in a critical
               phase of the trial, and to subject the State’s case to meaningful
               adversarial testing, on the sole ground of lack of preparation, “was
               not a reasonable strategic decision entitled to deference.” Moss [v.
               Hofbauer, 286 F.3d 851, 864 (6th Cir. 2002)] (finding that defense
               counsel’s reliance on the cross-examination of an eyewitness by a
               co-defendant unreasonable when the two defendants’ interests were
               not aligned). The Court finds, therefore, that the petitioner's trial
               counsel’s performance fell below an objective standard of
               reasonableness under prevailing professional norms.
Higgins v. Renico, 362 F. Supp. 2d 904, 916-17 (E.D. Mich. 2005).
        A number of courts, including this one, have found deficient performance where, as here,
counsel failed to challenge the credibility of the prosecution’s key witness. See, e.g., Lindstadt v.
Keane, 239 F.3d 191, 204 (2d Cir. 2001) (finding ineffective assistance of counsel where, among
other things, counsel’s “failure to investigate prevented an effective challenge to the credibility of
the prosecution’s only eyewitness”); Berryman v. Morton, 100 F.3d 1089, 1099 (3d Cir. 1996)
(finding deficient performance where counsel failed to raise the victim’s prior inconsistent
identification testimony, given that “[t]he reliability of this victim’s uncorroborated identification
of [the defendant] cut[] directly to the heart of the only evidence against [the defendant]”); Tomlin
v. Myers, 30 F.3d 1235, 1238 (9th Cir. 1994) (finding deficient performance where counsel failed
to challenge an eyewitness’s in-court identification in a case that “hinge[d] on an eyewitness’s
testimony”); Nixon v. Newsome, 888 F.2d 112, 115 (11th Cir. 1989) (finding deficient performance
where counsel failed to confront the prosecution’s star witness with inconsistent statements, thus
“sacrific[ing] an opportunity to weaken the star witness’s inculpatory testimony”); Blackburn v.
Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987) (finding deficient performance where counsel failed to
impeach an eyewitness with previous inconsistent identification testimony when “weakening [the
witness’s] testimony was the only plausible hope [the defendant] had for acquittal”).
         During arguments before this court, counsel for Renico suggested that Pookrum, an
experienced attorney, chose not to cross-examine Young for tactical reasons, those reasons being
that (1) Pookrum knew that Young had already said everything there was to say; and (2) Pookrum
could see the handwriting on the wall, namely, that he was not going to prevail in the case. We find
such explanation for Pookrum’s conduct too implausible to accept. Indeed, we agree with the
district court that there simply was no conceivable, tactical justification for Pookrum’s failure to
cross-examine the key witness in the case against Higgins. The district court correctly stressed that
Young was not only the sole witness that directly implicated Higgins as the shooter, but he was also
“a suspect whose interest in avoiding criminal culpability was tied firmly to convincing the police
No. 05-1564           Higgins v. Renico                                                       Page 9


and the jury that Higgins–and not Young himself–shot Ramsey.” Higgins, 362 F. Supp. 2d at 918.
Given the gun powder found on Young’s hands, given the inconsistencies in Young’s prior
statements, given Young’s slip-of-tongue during direct examination, and given Young’s self-interest
in the outcome of the case, Pookrum had plenty of ammunition with which to impeach Young’s
testimony. The need for such impeachment was compelling. Pookrum’s decision to forego the
opportunity to damage the credibility of the prosecution’s only eyewitness to the crime amounted
to a significant dereliction of duty. Under Strickland, Pookrum’s performance was clearly deficient.
         Even where counsel’s performance is deficient, a petitioner is not entitled to habeas relief
unless he also demonstrates ensuing prejudice. In evaluating the prejudice suffered by a defendant
as a result of his counsel's deficient performance, “[i]t is not enough for the defendant to show that
the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at
693. Indeed, “[v]irtually every act or omission of counsel would meet that test, and not every error
that conceivably could have influenced the outcome undermines the reliability of the result of the
proceeding.” Id. (citation omitted). Rather, the defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Although the defendant need not prove that counsel’s deficient
conduct more likely than not affected the verdict, the defendant must show that “absent his counsel’s
error, the courts of appeal would have reasonable doubt with respect to his guilt.” Moore v. Carlton,
74 F.3d 689, 693 (6th Cir. 1996). “[T]he ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.” Strickland, 466 U.S. at 696. In this
vein, the court must determine whether “the result of the particular proceeding is unreliable because
of a breakdown in the adversarial process that our system counts on to produce just results.” Id.; see
also Kinnard v. United States, 313 F.3d 933, 935 (6th Cir. 2002) (explaining that, when analyzing
whether a defendant was prejudiced by his attorney’s performance, “it is necessary to determine if
the proceeding was fundamentally unfair or unreliable; a court should not focus the analysis on the
outcome”) (citing Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
        Whether an error actually prejudiced a defendant is weighed against the “totality of the
evidence before the judge or jury.” Strickland, 466 U.S. at 695. A verdict “only weakly supported
by the record is more likely to have been affected by errors than one with overwhelming record
support.” Id. at 696; see also Odem v. Hopkins, 382 F.3d 846, 851-52 (8th Cir. 2004) (holding that
prejudice was not shown where there was overwhelming evidence of guilt); United States v. Bavers,
787 F.2d 1022, 1030 (6th Cir. 1985) (finding no prejudice where there was overwhelming proof of
the defendant’s guilt).
        Here, without Young’s testimony, the State’s case against Higgins was far from
overwhelming. As the only eyewitness to events surrounding the murder, Young was the key to the
State’s case; yet Pookrum, who had the weapons to discredit Young, allowed Young’s testimony
to go unchallenged. Had the jury thought Young a liar and possibly himself the murderer, the jury
may well have had reasonable doubt as to Higgins’s guilt.
        In our adversarial system of justice, a defendant’s right to cross-examination is an essential
safeguard of fact-finding accuracy. It is “the principal means by which the believability of a witness
and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974). In this case,
a case largely dependent on the testimony of one key witness, Higgins’s right to that essential
safeguard was denied by the hasty action of a lawyer who admitted that he was unprepared. That
key witness was the lone eyewitness to the crimes charged. He was also a man who gave
inconsistent stories to the authorities before trial; who was found with gun powder residue on his
hands, yet denied both that he was in the car when shots were fired and that he himself shot a gun
the day of the murder; who initially responded to the prosecutor’s question about the murder weapon
with “I pulled,” then changed his response to “he pulled” out the .45; and who himself was a
No. 05-1564                 Higgins v. Renico                                                                     Page 10


possible perpetrator of the crime. Given the importance of the star witness’s testimony, it is not
difficult to imagine that the outcome of the trial was “unreliable because of a breakdown in the
adversarial process that our system counts on to produce just results.” Strickland, 466 U.S. at 696.
        Renico maintains that the state appellate court rejected Higgins’s ineffective assistance claim
based on Higgins’s failure to present the court with a well-developed argument regarding prejudice.
As stated by Renico:
                    Higgins’s appeal claimed only that “prejudice to this defendant is
                    obvious.” Higgins failed to show the State court how he “would
                    probably have won” if counsel had elected to cross-examine Wayne
                    Young and the State court denied his claim on that basis. . . .
                            . . . Although Higgins made a general ineffective assistance
                    of counsel claim, he did not base the claim on [] specific attorney
                    errors.
Appellant’s Br. at 19-20 (citations and footnote omitted) (emphasis in original). Renico urges this
Court to defer to the state 4court’s finding of no prejudice, based on the skeletal argument made by
Higgins before that court.
        To be sure, it is the defendant’s burden to “affirmatively prove prejudice.” Strickland, 466
U.S. at 693. We are persuaded, however, that Higgins met such a burden before the state appellate
court. Contrary to Renico’s contention, Higgins was not required to demonstrate how he “would
probably have won.” He simply needed to present the factual basis for his contention that
confidence in the outcome of his case was undermined by his counsel’s deficient performance.
Higgins did just that.
         Higgins identified for the state appellate court the one critical error made by his attorney, and
he identified some–albeit few–record facts to support his claim of prejudice. Specifically, he stated
that his attorney failed to cross-examine the “key witness, Mr. Young, [] the person who made the
identification of [M]r. Higgins as the shooter.” Supp. J.A. at 135. Higgins went on to state that, by
failing to cross-examine Young, his attorney left the jury “with essentially unrebutted, and untested,
testimony that Mr. Higgins had the gun and shot the victim.” Id. at 137. He pointed out that “[t]he
evidence of Mr. Higgins’ guilt was not overwhelming, and consisted of the testimony of Mr.
Young;” and he argued that his “[c]ounsel ‘dropped the ball’ when it really mattered,” id., in effect
providing Higgins with no defense at all. Higgins concluded his argument with the statement:
“[T]he prejudice to this defendant is obvious.” Id.; see Berryman, 100 F.3d at 1102 (finding
prejudice to the defendant “obvious” where defense counsel failed to cross-examine an identification
witness whose inconsistent identification testimony from previous trials could have raised questions
in the minds of the jurors regarding the witness’s credibility and/or ability to identify the defendant).
        While Higgins presented his Strickland claim to the state appellate court in a skeletal manner,
we think his presentation was sufficient to place the issue of prejudice squarely before that court.
The state court nonetheless rejected Higgins’s claim without discussion. As noted by the district
court: “The State court of appeals’ discussion of the prejudice prong of the Strickland test was

         4
             In his brief before the district court, Renico responded to Higgins’s Strickland claim as follows:
                     The Court of Appeals held that Petitioner failed to demonstrate how the errors he
                     attributes to his trial counsel actually prejudiced him to the extent that it
                     undermined the proper functioning of the adversarial process. Therefore, these
                     claims do not warrant habeas relief.
J.A. at 107.
No. 05-1564           Higgins v. Renico                                                        Page 11


truncated; that court simply stated that the petitioner failed to show prejudice.” J.A. at 289. We
assume, as did the district court, that the state court rejected–albeit in conclusory fashion–Higgins’s
prejudice claim on the merits. Like the district court, we think this rejection represents an
“unreasonable application” of clearly established Supreme Court precedent. The state court may
have correctly identified the governing legal principle from the Supreme Court’s Strickland decision,
but it unreasonably applied that principle to the facts of Higgins’s case. Higgins is therefore entitled
to conditional habeas relief.
                                        IV. CONCLUSION
       For the reasons set out above, the district court’s order and judgment are AFFIRMED.
