                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 16a0372n.06

                                                    No. 15-1145


                                UNITED STATES COURT OF APPEALS                                     FILED
                                     FOR THE SIXTH CIRCUIT                                  Jul 01, 2016
                                                                                       DEBORAH S. HUNT, Clerk
TERRY CEASOR,

        Petitioner-Appellant,
v.                                                                ON APPEAL FROM THE UNITED
                                                                  STATES DISTRICT COURT FOR THE
JOHN OCWIEJA, Warden,                                             EASTERN DISTRICT OF MICHIGAN

        Respondent-Appellee.


BEFORE:            COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.

        CLAY, Circuit Judge. In 2005, a Michigan jury convicted Petitioner Terry Ceasor of

one count of first-degree child abuse, in violation of Mich. Comp. Laws § 750.136b(2), based on

allegations that he had caused his girlfriend’s 16-month-old son, Brenden Genna, to suffer a

subdural hematoma1 and retinal hemorrhaging.2                    The prosecution’s theory was that Ceasor

inflicted these injuries by violently shaking or slamming Brenden while the baby’s mother,

Cheryl Genna, was out of the house. The linchpin of the prosecution’s theory was the expert

testimony of Dr. Holly Gilmer-Hill, who opined that Brenden’s subdural hematoma and retinal

hemorrhages were (1) symptoms commonly associated with shaken baby syndrome (“SBS”),

(2) “caused by an intentional act,” and (3) inconsistent with Ceasor’s version of the facts—that

Brenden’s injuries resulted from an accidental fall from the couch.                     Following Ceasor’s

        1
          A subdural hematoma is a localized collection of blood between the dura and the brain generally caused
by a break in the wall of a blood vessel.
        2
            Retinal hemorrhaging is bleeding from the vessels of the retina.
                                                  No. 15-1145


conviction, the trial court sentenced him to a term of two to 15 years in prison.3 On direct

appeal, the Michigan Court of Appeals affirmed Ceasor’s conviction and sentence, and the

Michigan Supreme Court denied leave to appeal.

        In 2008, Ceasor filed a petition for a writ of habeas corpus in the United States District

Court for the Eastern District of Michigan. After staying Ceasor’s federal habeas proceedings

and permitting him to exhaust a claim for post-conviction relief in state court, the district court

ultimately issued an order and judgment denying Ceasor’s habeas petition. This timely appeal

followed.

        Ceasor’s appeal raises two inextricable issues related to ineffective assistance of counsel.

The first issue, which is more accurately characterized as a sub-issue of the main issue before

this Court, is whether Ceasor has demonstrated the strength of his claim that his trial counsel

rendered constitutionally ineffective assistance by failing to retain an expert witness to rebut

Dr. Gilmer-Hill’s testimony due to his ignorance (or misapprehension) of Michigan law

governing public funding for indigent defendants.                 The second issue is whether Ceasor’s

appellate counsel rendered ineffective assistance by (1) relying solely on the trial record to

support Ceasor’s ineffective assistance of trial counsel claim and (2) failing to file a separate

motion to remand, pursuant to Mich. Ct. R. 7.211(C)(1), for an evidentiary hearing under People

v. Ginther, 212 N.W.2d 922 (Mich. 1973) (a “Ginther hearing”). For the following reasons, we

REVERSE the district court’s judgment denying habeas relief and REMAND for an evidentiary

hearing on the merits of Ceasor’s ineffective assistance of appellate counsel claim.




        3
          At the time Ceasor was tried and convicted, first-degree child abuse was punishable by “imprisonment for
not more than 15 years”; currently, it is punishable by “imprisonment for life or any term of years.” Compare Mich.
Comp. Laws § 750.136b(2) (2000), with Mich. Comp. Laws § 750.136b(2) (2012).


                                                        2
                                           No. 15-1145


                                      I.     BACKGROUND

       Ceasor’s trial for first-degree child abuse lasted almost three days. Thereafter, the jury

deliberated for nearly two days, and requested a deadlocked jury instruction, before returning a

unanimous verdict of guilty. The following facts were averred to and established at trial.

                              A. Brenden’s Injuries and Treatment

       In June 2004, Ceasor began dating Cheryl Genna, Brenden Genna’s mother. Both Genna

and Ceasor described 16-month-old Brenden as an “active” child. Genna also had an older

daughter, Derian, who was approximately seven-years-old at the time Brenden was injured.

       At about 7:00 pm on October 2, 2004, Genna and her two children went to Ceasor’s

home in Port Huron, Michigan. They had visited the home before, and Genna’s children had met

and been alone with Ceasor “[s]everal times” in the past. At some point during the evening,

Genna and Derian went to Blockbuster and China Lite, leaving Ceasor alone with Brenden.

When they returned, Brenden was fine and showed no sign of injury.

       On October 3, 2004, the day Brenden sustained his injuries, Genna woke up around

9:30 am and observed Ceasor coming back from giving Brenden his morning bottle. Both Genna

and Ceasor—who testified in his own defense at trial—stated that it was normal for Ceasor to

help care for Brenden by feeding him or changing his diaper. At around 10:30 am, Genna and

Derian went to McDonald’s to pick up breakfast while Ceasor remained at the house with

Brenden. Once again, there was no indication that Brenden sustained injuries of any kind during

the time he was alone with Ceasor.

       Around 1:00 pm, Genna decided to drop Brenden off at his grandmother’s house so she

could take Derian swimming. However, when Ceasor saw that Brenden was still asleep, he told

Genna “just let him sleep, go ahead and go,” and Genna agreed to let Ceasor babysit while she

and Derian went swimming.
                                                3
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       Genna and Derian left Ceasor’s house around 2:30 pm, and were away from the house for

approximately an hour-and-a-half.      The questions surrounding what occurred during this

hour-and-a-half formed the basis of the prosecution’s child abuse charge against Ceasor.

       At trial, Ceasor testified to the following. Brenden was still sleeping for at least 20 to 30

minutes after Genna and Derian left the house, but Ceasor eventually brought Brenden out to the

living room so the baby could sit on the couch with him while he watched football. Initially,

Brenden was relatively inactive, but when Ceasor brought him a jar of Gerber bananas, fruit

snacks, and a granola bar from the kitchen, Brenden became excited and began to eat. After

cleaning up, and as he was returning from the kitchen, Ceasor saw that Brenden was standing on

the couch and facing the TV. Ceasor crawled up to the back of the couch on his hands and knees

and he and Brenden began playing a game called “gotcha,” with Ceasor crawling behind the

couch and Brenden running across the couch cushions. While they were playing, Ceasor noticed

that Brenden’s foot got stuck between the couch cushions a couple of times. Ceasor testified that

during their game, Brenden was laughing and they were “having a good time.”

       When Brenden stopped playing in order to drink from his sippy cup, Ceasor “figured [he

was] occupied enough” and stepped away to go to the bathroom. However, as he was urinating,

Ceasor heard a thud that sounded like “two hits.” Upon hearing the thud, Ceasor accidentally

urinated on his hand, washed his hands without drying them, and ran out to the living room.

There, he found Brenden wedged between the couch and the coffee table. At trial, Ceasor

testified that there was “no way that [Brenden] went down in this position on his own,” saying:

              It wasn’t like he was playing in this position. And, um, when I came out
       and saw him there, his head was, his head was flung back as far as the neck could
       go. And when I picked up [Brenden] he was like, it was like he was dead and he
       was like limp noodles . . . . I tried talking to him. I sprayed some water off my
       hands that were wet. Um, I touched his head. I, um, I tried everything I could do.
       I was calling his name.

                                                4
                                                     No. 15-1145


(R. 7-8, PageID# 373).

          Ceasor was on his way to call 911 when Genna and Derian came home from the pool.

Genna initially laughed off Ceasor’s statement that Brenden had fallen, thinking Ceasor was

joking.        However, when Ceasor said, “I’m serious,” and Genna saw that Brenden was

unconscious, she began screaming the baby’s name. Rather than call an ambulance, Ceasor and

Genna decided to use Genna’s car to drive Brenden to the emergency room at Port Huron

Hospital, which was located a couple of minutes away from Ceasor’s house. Genna did not

observe any injuries to Brenden at this time, but noticed that his hair was wet.

          Both Ceasor and Genna testified that Brenden regained consciousness shortly after they

arrived at Port Huron. Thereafter, Genna began calling family members, including her mother,

sisters, and Brenden’s father. Around the time Genna called Brenden’s father, Ceasor informed

the hospital staff that he was not Brenden’s father, but Genna’s boyfriend.

          Dr. Christopher Hunt, Brenden’s attending physician at Port Huron and one of the

prosecution’s witnesses at trial, testified that when he initially assessed Brenden, the baby’s

pupils were unequal in size and he was unresponsive to verbal commands and painful stimuli.

Dr. Hunt did not observe or document any signs of trauma or injury, including retinal

hemorrhaging, and noted that Brenden’s breathing sounds were normal. The medical staff did

not have to intubate Brenden, but took a CAT scan that Dr. Hunt later reviewed with a

radiologist. The CAT scan revealed that Brenden had a subdural hematoma with a “slight mass

effect,” meaning that the blood beneath Brenden’s dura4 had “start[ed] to push the brain to the

opposite side” of his skull.             Because a subdural hematoma is a serious injury, Dr. Hunt

administered an anti-seizure medication to prevent continued swelling and ordered that Brenden


          4
              The dura is the outermost membrane enveloping the brain and spinal cord.


                                                           5
                                         No. 15-1145


be transferred to Children’s Hospital in Detroit, where there was a pediatric neurosurgeon on

staff.

         When Dr. Hunt spoke to Genna and Ceasor about Brenden’s history, he noted Ceasor as

“the boyfriend.”    Dr. Hunt also documented a change in Ceasor’s explanation about how

Brenden sustained his injuries, observing that although Ceasor originally said that Brenden had

fallen off the couch and hit his head on the coffee table, he later claimed that “he didn’t know

how [the injuries] occurred.” (R. 7-7, PageID# 295–96). Concerned that Brenden’s injuries

were the result of “possible child abuse,” Dr. Hunt testified that although subdural hematomas

are frequently sustained by patients who have fallen and hit their heads, Brenden lacked the

typical trauma associated with a fall-induced hematoma, including “soft tissue damage.” He also

conceded, however, that bruising does not always occur “right away.”

         Both Ceasor and Genna stayed with Brenden while he was in Port Huron’s emergency

room. Eventually, some of Genna’s family members began to arrive, and Ceasor told Genna’s

sister that he “was there at the house with Brenden by [him]self” at the time the baby was

injured. Later, however, Genna informed a police officer from the St. Clair County Sheriff’s

Department, Deputy Michael Garvin, that she was present when Brenden was injured and had

picked him up after he fell. Genna gave this account while sitting approximately ten feet away

from Ceasor in the Port Huron waiting room, and after Genna told this lie, Ceasor told Deputy

Garvin and another police officer from the sheriff’s department, Detective Terry Baker, that he

had seen Genna “already kneeling next to” an unconscious Brenden just moments after the baby

fell. At trial, Genna testified that she lied to Deputy Garvin about being present when Brenden

was injured because she was “afraid,” “scared,” and “in shock.” She also testified that at the




                                               6
                                                 No. 15-1145


time of Brenden’s injuries, she was embroiled in a dispute with Brenden’s father over child

support. Both Genna and Ceasor testified that Ceasor never told Genna to lie to the police.

        At some point while Brenden was hospitalized, Genna noticed an ovular “mark on the

back of [Brenden’s] head” that was two or two-and-a-half inches long and “had red dots on it.”

(R. 7-6, PageID# 232–33). Although Genna testified that she told the medical staff at Children’s

about the red mark on Brenden’s head, she could not recall whether she told medical personnel at

either hospital about a second injury—a bite mark—that she observed on his tongue.

        Around 7:25 pm, an ambulance transported Brenden and Genna from Port Huron

Hospital to Children’s Hospital in Detroit.5 One of Brenden’s attending physicians at Children’s

was Dr. Holly Gilmer-Hill, the expert witness at Ceasor’s trial.

         Although a resident treated Brenden the day he was transferred from Port Huron, Dr.

Gilmer-Hill discussed the baby’s injuries with his parents the following day, October 4, 2004.

During this conversation, Genna told Dr. Gilmer-Hill that Brenden had fallen off the couch.

Dr. Gilmer-Hill physically examined Brenden, but did not notice or document “any external

bruising or swelling of the scalp.” Her review of Brenden’s CAT scan revealed that he had

sustained a “subdural hemorrhage” with “shift,” i.e., pressure caused by blood and swelling.

Subsequently, Brenden was placed under observation and given Mannitol—a medication that

draws fluid out of the brain—in order to minimize swelling.

        When she saw Brenden again on October 6, Dr. Gilmer-Hill learned that the Children’s

ophthalmology staff had found retinal hemorrhages in both of Brenden’s eyes.                           At trial,

Dr. Gilmer-Hill testified that “[i]t takes a good deal of force to cause [a retinal hemorrhage], and

the combination of subdural blood with retinal hemorrhage is child abuse.                        It is patently

        5
          Ceasor did not go with them, but instead went back to his house with Detective Baker, who took pictures
of Ceasor’s living room, couch, and coffee table that were later presented at trial.


                                                       7
                                                  No. 15-1145


demonic. [It] [i]s diagnostic for child abuse.” (R. 7-7, PageID# 319). When pressed on this

point by the prosecution, Dr. Gilmer-Hill opined that “being [severely] shaken or slammed onto

a surface, either hard or soft,” would cause retinal hemorrhaging. (Id.).

         Brenden remained at Children’s Hospital between Sunday, October 3—the day he was

injured and admitted—and the following Friday, October 8.                        He was not prescribed any

medications at the time of or following discharge.                    After seeing Brenden on October 6,

Dr. Gilmer-Hill did not treat him again before he was released, and she admitted on

cross-examination that she only observed Brenden for approximately 25 minutes during the

entirety of his five-day stay. Dr. Gilmer-Hill also conceded that: Brenden’s skeletal x-ray did

not reveal any broken or fractured bones; there were no marks on Brenden’s body suggesting

that someone had vigorously held or shaken him; Brenden did not need surgery to treat his

injuries; and Brenden did not experience seizures while being treated at Children’s.

         According to Genna, by the time he was discharged on October 8, Brenden was “doing

better” and was walking and talking. However, because Brenden was placed in his father’s

custody following discharge, Genna could not testify as to whether he experienced any injury-

related difficulties in the three months following his hospital stay. However, at the time of

Ceasor’s trial, which was held a little more than a year later after Brenden was injured, Genna

testified that Brenden was “doing great” and did not need to follow up or report for regular

check-ups at either hospital.6




         6
          At trial, Genna admitted that she did not “know for sure what the lasting effects [from Brenden’s injuries]
might be.” (R. 7-7, PageID# 274). For her part, Dr. Gilmer-Hill testified that it was difficult to surmise whether a
child Brenden’s age would experience any long-term effects from his injuries, but that such effects could include
headaches, seizures, or a learning disability.


                                                         8
                                           No. 15-1145


                 B. Trial Testimony Regarding the Cause of Brenden’s Injuries

       At trial, the prosecution’s case against Ceasor was based almost exclusively on the expert

testimony of Dr. Gilmer-Hill. Relevant to this appeal, Dr. Gilmer-Hill opined that: SBS is an

“accepted” syndrome in the medical community; subdural hematomas and retinal hemorrhages,

taken together, are symptoms “diagnostic of child abuse”; one cause of retinal hemorrhaging is

shaking a child or slamming him against a hard or soft surface; Brenden’s injuries were not

accidental because “a fall from a couch onto a carpeted floor . . . [could] not account for [those]

injuries”; the degree of force that caused Brenden’s injuries was more akin to “a fall out of a

second story window” or “a high speed car accident” than a fall from a couch; and Ceasor’s and

Genna’s inconsistent accounts of whether Genna was present when Brenden was injured

suggested that Brenden had been abused because the abusers in SBS cases frequently offer

conflicting or inconsistent accounts about how the victim’s injuries occurred.

       With regard to SBS generally, Dr. Gilmer-Hill testified as follows:

               Typically[,] [SBS] involves shaking of [an] infant, usually a child less
       than two years old. Violent shaking. Not just shaking a child . . . a little bit to
       revive them or because they have fainted or something like that, but really
       violently shaking the child such that the head whips back and forth on the body,
       which is the axis.
               The head is larger relative to the body in a child than it is in an adult, and
       so it causes . . . a big lever of force, and it causes severe forces within the head.
       The brain is not fixed within the skull and it can move. So, the brain slams back
       and forth inside the skull. The bridging veins between the brain and the skull can
       tear, which can cause a subdural hemorrhage. The[ victim] can [experience]
       bleeding in the back of the eye, which is [a] retinal hemorrhage[,] from the force
       of the shaking, and usually it involves an aspect of impact, too. Usually the child
       is struck as well, or slammed down on a, a sofa or a soft surface, even against a
       wall or thrown up against the ceiling. There are a lot of variations.

(R. 7-7, PageID# 314).

       To support her opinion about the alleged link between subdural hematomas, retinal

hemorrhages, and SBS, Dr. Gilmer-Hill referenced, among other things, an experimental study

                                                 9
                                           No. 15-1145


conducted by Dr. Ann-Christine Duhaime, an American neurosurgeon. On cross-examination,

Dr. Gilmer-Hill stated that Duhaime’s study simulated accidental injuries using cats and rats.

When Ceasor’s trial counsel asked Dr. Gilmer-Hill about a study conducted by forensic

pathologist Dr. John Plunkett, which found that children could sustain serious trauma or even

fatal head injuries from short falls, Dr. Gilmer-Hill rejected Plunkett’s study on the ground that it

was not “widely accepted” in her profession. Additionally, Dr. Gilmer-Hill disagreed with Dr.

Plunkett’s finding that children can sustain serious or fatal injuries “even on carpeted surfaces.”

       On re-cross, Dr. Gilmer-Hill stated that her expertise on SBS was derived from American

neurosurgical literature (as opposed to literature published in other countries or by professionals

in other fields). When asked whether she habitually discounted the findings of medical studies

with which she disagreed, Dr. Gilmer-Hill stated that she had not “seen any well-done, rigorous

studies that disagreed with [her] theory [about SBS].” (Id. at 329–30).

       Finally, Dr. Gilmer-Hill testified that Brenden’s injuries were non-accidental because the

history offered by Ceasor and Genna—a fall from the couch—was “not consistent with the

mechanism of the injur[ies].” (Id. at 315, 319–20). Although Dr. Gilmer-Hill conceded that she

was not an expert in biomechanics, she nonetheless testified that a child falling from a height of

five or six feet experiences “[m]uch less” gravitational force than a child being shaken. Further,

when asked about nurse’s notes generated at Children’s that both documented and diagrammed

that Brenden had “bruising to the forehead”—an injury potentially consistent with an accidental

fall—Dr. Gilmer-Hill testified that she did not rely on this part of Brenden’s history in

formulating her opinion because the notes were the “only place” that documented bruising and

she “[did not] see the bruise [her]self.” (R. 7-7, PageID# 323). Dr. Gilmer-Hill also claimed not




                                                 10
                                                    No. 15-1145


to have seen an intake form from Children’s pediatric surgery service documenting that Brenden

had oral redness.

       After the prosecution rested its case, Ceasor testified on his own behalf as the defense’s

only witness. Among other things, Ceasor corroborated Genna’s earlier testimony that Ceasor

frequently helped care for Brenden, had never expressed impatience with Brenden being an

“active” child, and had never physically disciplined Genna’s children or his own

thirteen-year-old son. Ceasor also specifically denied being upset with or feeling the need to

discipline Brenden on the day he was injured. At the conclusion of Ceasor’s testimony, the

defense rested its case.

                                        C. Jury Deliberations and Verdict

       The jury deliberated for two days, watching a video recording of Dr. Gilmer-Hill’s expert

testimony twice and requesting “further instructions” from the trial court after failing to reach a

unanimous verdict. At the end of the second day of deliberations, the jury returned a unanimous

verdict of guilty, and Ceasor was sentenced to a prison term of two to 15 years.

                                            D. Procedural Background

       On direct appeal, Ceasor’s appellate counsel argued, inter alia, that Ceasor had been

deprived of his right to effective assistance of counsel under the Sixth Amendment of the United

States Constitution because trial counsel “fail[ed] to contact, investigate, and urge Ceasor to hire

an expert to refute the medical testimony presented by the prosecution.”7 (R. 7-12, PageID#

572). More specifically, appellate counsel maintained that trial counsel’s failure to retain an

expert was objectively unreasonable because: (1) expert testimony could have “directly refuted”

Dr. Gilmer-Hill’s conclusion that Brenden’s injuries were non-accidental; (2) SBS “is a hotly


       7
           This is the only argument raised in Ceasor’s direct appeal that is relevant to the appeal before this Court.


                                                           11
                                                 No. 15-1145


contested matter” in the scientific community; and (3) issues involving brain injury “are

generally beyond easy understanding by legal professionals or lay jurors,” “require[] precise

attention to the particular facts” of the case, and “demand[] consult[ation] with qualified

experts.” (Id. at 574–75). Appellate counsel also argued that Ceasor was prejudiced by trial

counsel’s failure to retain an expert because there was a “high probability” that the jury would

have rendered a verdict of not guilty if the defense had offered expert testimony “to refute the

prosecutor’s claims and support the defense[’s] theory that [Brenden] was injured during an

accidental fall.” (Id. at 575–76). Finally, appellate counsel asserted that even if Ceasor could

not afford to retain an expert, trial counsel should have requested public funding to pay for

consultation with an expert. See Mich. Comp. Laws § 775.15.

       The Michigan Court of Appeals affirmed Ceasor’s conviction in an unpublished opinion

dated July 12, 2007. People v. Ceasor, No. 268150, 2007 WL 2011747 (Mich. Ct. App. July 12,

2007). At the outset, the court of appeals noted that “[b]ecause [Ceasor] did not move for a

Ginther hearing, [the court’s] review [wa]s limited to errors apparent on the record.” Id. at *3

(footnote omitted). Indeed, appellate counsel failed to move for a Ginther hearing—which

allows a defendant to proffer facts or evidence in support of his ineffective assistance of counsel

claim—by        filing   a   separate    motion     to        remand   under   Mich.    Ct.    R. 7.211(C)(1)

(“Rule 7.211(C)(1)”).8 Instead, counsel represented that the “record alone show[ed] that [trial]

counsel was ineffective” and conditioned Ceasor’s request for a Ginther hearing on a finding that

the “record [wa]s lacking.” (R. 7-12, PageID# 575).

       Examining only the trial record, the Michigan Court of Appeals found that even if there

were scientific studies that conflicted with Dr. Gilmer-Hill’s trial testimony, the existing record


       8
           See People v. Parker, No. 244118, 2004 WL 1392292, at *6 (Mich. Ct. App. June 22, 2004).


                                                         12
                                           No. 15-1145


did not show “that an expert would have been willing to opine,” based on the specific facts in

Ceasor’s case, that Brenden’s injuries were not the result of being shaken or slammed or that his

injuries were accidental and unrelated to abuse. Ceasor, 2007 WL 2011747, at *4 (emphasis

added). The court also concluded that “the record [did] not support [Ceasor’s] contention that

his counsel failed to contact or try to procure an expert to support [the defense’s] theory” because

there was evidence that trial counsel sought and was granted additional time to consult an expert

witness. Id. In light of the evidence that trial counsel at least attempted to locate an expert

witness to testify on Ceasor’s behalf, as well as the “presumption that [trial] counsel’s decision to

not call an expert witness was a matter of sound trial strategy,” the court concluded that “[t]he

fact that SBS may be a disputed diagnosis does not mean that an expert would have found after

reviewing the evidence that [Brenden’s] injuries resulted from an accident.” Id. Following the

Michigan Court of Appeals’ affirmance of Ceasor’s conviction, the Michigan Supreme Court

denied leave to appeal on October 29, 2007. People v. Ceasor, 740 N.W.2d 257 (Mich. 2007)

       On August 21, 2008, Ceasor filed a pro se petition for a writ of habeas corpus in the

district court. In February 2010, he filed an amended habeas petition through counsel. Pursuant

to the parties’ stipulation, however, the district court ultimately stayed Ceasor’s federal habeas

proceedings so that he could exhaust a claim for post-conviction relief in state court.

       Before the state trial court, Ceasor filed a motion for relief from judgment arguing that

appellate counsel rendered ineffective assistance when he failed to file a separate motion to

remand for a Ginther hearing, pursuant to Rule 7.211(C)(1), in raising Ceasor’s ineffective

assistance of trial counsel claim. More specifically, Ceasor observed that the Michigan Court of

Appeals rejected his ineffective assistance of trial counsel claim on the grounds that there was

insufficient evidence in the “existing [trial] record” to rebut the presumption that trial counsel’s



                                                 13
                                           No. 15-1145


decision not to call an expert witness was a matter of “sound trial strategy.” Ceasor, 2007 WL

2011747, at *3–4. The court of appeals only reached this conclusion, Ceasor argued, because

appellate counsel neglected to file a proper motion to remand for a Ginther hearing under

Rule 7.211(C)(1) and instead relied on a trial court record that was “devoid of any facts related to

[trial] counsel’s failure to hire an expert.” Relatedly, Ceasor argued that if appellate counsel had

properly moved for a Ginther hearing under Rule 7.211(C)(1), Ceasor would have established on

remand that:

       i.      An expert would have informed the jury of the growing body of evidence
               undermining the [SBS] hypothesis.
       ii.     An expert would have countered Dr. Gilmer-Hill’s many incorrect
               assertions and would have prepared trial counsel to effectively
               cross-examine Dr. Gilmer-Hill.
       iii.    An expert could have offered testimony that the injuries Brenden Genna
               suffered were consistent with a short fall, inconsistent with shaking, and
               unlikely to have been caused by intentionally applied force.
       iv.     Trial counsel failed to call an expert not because of trial strategy but solely
               because [Ceasor] could not afford one, and trial counsel never considered
               asking the Court for funds to hire an expert.

(R. 24-2, PageID# 1252).

       To support these contentions, Ceasor proffered the affidavits of four experts who

reviewed his case pro bono: Dr. John Plunkett, a forensic pathologist; Dr. Peter Stephens, a

medical doctor board certified in anatomical pathology, clinical pathology, and forensic

pathology; Dr. Ronald Uscinksi, a clinical neurosurgeon with “special expertise in the literature

surrounding pediatric head injuries”; and Dr. Christopher Van Ee, a Ph.D. in biomedical

engineering. Together, these experts swore to the following. Since approximately 2004, the

theories underlying SBS have been challenged and called into question due to their purported

lack of a scientific basis. This is, at least in part, because the biomechanical and forensic

literature demonstrates that shaking without impact is unlikely to cause subdural hematomas or



                                                 14
                                                   No. 15-1145


retinal hemorrhages. Instead, such injuries may result from an accidental impact, including a

short fall, or from a variety of natural causes. In fact, the gravitational force from the impact of a

short fall far exceeds the force from shaking, and short falls can result in serious or even fatal

head injuries. Further, injury biomechanics confirm that when a child is manually shaken, he or

she will suffer a neck injury or gripping-style chest injuries well before sustaining a subdural

hematoma or retinal hemorrhage.

         With regard to Ceasor’s case in particular, the experts opined that Brenden’s injuries

were consistent with a short fall from the couch onto the coffee table or the floor and inconsistent

with abusive shaking. In evaluating Dr. Gilmer-Hill’s expert testimony at trial, the experts

asserted that Dr. Gilmer-Hill had misrepresented the findings in Dr. Duhaime’s study9 and given

the jury incorrect information regarding the biomechanics of infant head injury, short distance

falls, and abusive shaking. They also noted that Dr. Gilmer-Hill’s apparent misapprehension of

the literature on SBS and pediatric head injury likely stemmed, at least in part, from her limited

focus on American neurosurgical literature at the exclusion of international literature and

literature from other disciplines, including pathology, pediatrics, and biomechanics. Each of the

experts expounded on criticisms of SBS (or Dr. Gilmer-Hill’s understanding thereof) that existed

at the time of Ceasor’s December 2005 trial or earlier, and Drs. Plunkett and Van Ee expressly

represented that they would have offered the opinions included in their respective affidavits if

they had been asked to testify at trial.


         9
           One such misrepresentation was Dr. Gilmer-Hill’s statement that Dr. Duhaime’s University of
Pennsylvania study involved “cats and rats and different type[s] of experimental animals subjected to different levels
of force simulating accidental injury.” (R. 7-7, PageID# 315, 325, 327). In fact, a cursory examination of Dr.
Duhaime’s study reveals that she and her colleagues examined (1) “autopsy findings” for patients who had presented
with a history suspicious for child abuse and (2) “[m]odels of 1-month-old infants with various neck and skull
parameters” that had been equipped with accelerometers. See Ann-Christine Duhaime et al., The Shaken Baby
Syndrome: A Clinical, Pathological, and Biomechanical Study, 66 J. Neurosurg. 409, 409–13 (1987). The study
includes no reference to cats or rats.


                                                         15
                                           No. 15-1145


       Finally, Ceasor attached affidavits from himself and his uncle—who had accompanied

Ceasor to each of his meetings with trial counsel—swearing to the following. Trial counsel

informed Ceasor that he would need an expert witness “in order to succeed at trial due to the

complexity of the medical issues involved” in his case. (R. 24-2, PageID# 1368, 1371). At some

point during summer 2005, trial counsel consulted with a potential expert witness, Dr. Faris

Bandak. Thereafter, trial counsel asserted that Ceasor owed Dr. Bandak $1,500 for this initial

consultation and would need to pay an additional fee of at least $10,000 in order to compensate

Dr. Bandak for testifying at trial. When Ceasor informed trial counsel that he could not afford

these fees because he had already exhausted his and his family’s financial resources by retaining

an attorney, trial counsel “refused to entertain other options for expert testimony” and, as a

result, “never retained an expert for . . . trial.” (Id. at 1369, 1372, 1374). Trial counsel also

failed to pursue “other avenues to attain an expert for [Ceasor], such as petitioning the court for

fees for an expert due to [Ceasor’s] indigency.” (Id. at 1249).

       Overall, Ceasor’s main argument before the trial court was that appellate counsel’s

failure to request a Ginther hearing “precluded [him] from presenting the evidence essential to

support his [ineffective assistance of trial counsel] claim.”     (Id. at 1254).   Such evidence

included: (1) testimony from expert witnesses revealing the flaws affecting Dr. Gilmer-Hill’s

trial testimony and affirmatively demonstrating that Brenden’s injuries were consistent with

Ceasor’s version of the facts; and (2) testimony from lay witnesses demonstrating that trial

counsel’s decision not to retain an expert witness was not a “reasonable trial strategy,” but

instead based on Ceasor’s inability to pay the fee of a specific expert. The final page of Ceasor’s

motion noted that “[t]his claim for relief has not been raised previously and could not have been




                                                16
                                                 No. 15-1145


raised on direct appeal because [Ceasor] was represented on direct appeal by the appellate

attorney who provided the ineffective assistance that is the basis of this motion.” (Id. at 1255).

        Citing Mich. Comp. Laws § 6.508(D) (“Rule 6.508(D)”),10 the trial court denied Ceasor’s

motion in a three-page order, reasoning that Ceasor’s ineffective assistance of appellate counsel

claim was merely his ineffective assistance of trial counsel claim “re-framed” in pursuit of a

different result. Consequently, the trial court did not assess whether appellate counsel performed

deficiently by failing to file a motion to remand for a Ginther hearing under Rule 7.211(C)(1), let

alone mention the affidavits filed with Ceasor’s motion.                  Relying on Rule 6.508(D), the

Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal.

        On June 20, 2012, Ceasor filed a second amended habeas petition in the district court,

and the district court re-opened his federal habeas proceedings. As exhibits to his habeas

memorandum, Ceasor filed the same affidavits previously presented to (but apparently not

considered by) the trial court. On January 13, 2015, the district court issued an order and

judgment denying Ceasor’s habeas petition.

        In its order denying habeas relief, the district court observed that the trial court failed to

address the merits of Ceasor’s ineffective assistance of appellate counsel claim “on the erroneous

ground that the claim had already been raised and decided against [Ceasor] by the Michigan

Court of Appeals on direct review.” Ceasor v. Ocwieja, No. 5:08-CV-13641, 2015 WL 164008,

at *4 (E.D. Mich. Jan. 13, 2015). Since the state courts generated no results or reasoning to

which the district court could defer on Ceasor’s ineffective assistance of appellate counsel claim,

the district court reviewed this claim de novo.



        10
            Rule 6.508(D) provides that a court may not grant relief to a defendant whose motion “alleges grounds
for relief which were decided against the defendant in a prior appeal.”


                                                       17
                                           No. 15-1145


       Ultimately, the district court found that appellate counsel’s decision not to file a separate

motion for an evidentiary hearing was a “reasonable recognition that the allegations of

ineffective assistance could be determined from the trial transcript alone.” Id. at *6 (citation and

quotation marks omitted). The court also found that even “assuming that appellate counsel was

ineffective for failing to move for a Ginther hearing,” Ceasor could not show prejudice because

he had not demonstrated that “a Ginther hearing would have been granted or that the Michigan

Court of Appeals would have reversed his conviction had such a hearing been held.” Id.

       Ceasor timely appealed the district court’s denial of his habeas petition and denial of a

certificate of appealability, and this Court granted a certificate of appealability as to Ceasor’s

ineffective assistance of appellate counsel claim.

                                        II. DISCUSSION

                                         A. Jurisdiction

       Although Respondent John Ocwieja (the “Warden”), does not raise a jurisdictional

challenge to Ceasor’s habeas appeal, because Ceasor is no longer in prison, we find it necessary

to briefly discuss the issue of jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 95 (1998). As noted in our order granting a certificate of appealability, Ceasor was paroled

in October 2009. “The federal habeas statute gives the United States district courts jurisdiction

to entertain petitions for habeas relief only from persons who are ‘in custody in violation of the

Constitution or laws or treaties of the United States.’” Maleng v. Cook, 490 U.S. 488, 490

(1989) (citing 28 U.S.C. § 2241(c)(3); 28 U.S.C. § 2254(a)) (emphasis in original).             The

Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner be

‘in custody’ under the conviction or sentence under attack at the time his [habeas] petition is

filed.” Id. at 490–91 (emphasis added). Because Ceasor filed the instant habeas petition in



                                                18
                                           No. 15-1145


August 2008, and remained in custody until October 2009, the district court had jurisdiction to

entertain Ceasor’s habeas petition under 28 U.S.C. §§ 2241 and 2254, and this Court has

jurisdiction to hear the appeal thereof pursuant to 28 U.S.C. § 1291.

       Ceasor’s appeal raises a second jurisdictional question: whether his petition for habeas

relief has been mooted by his release from prison. See Demis v. Sniezek, 558 F.3d 508, 512 (6th

Cir. 2009) (“Because the exercise of judicial power under Article III of the Constitution depends

on the existence of a live case or controversy, mootness is a jurisdictional question.”).

“Article III, Section 2 of the United States Constitution authorizes the federal judiciary only to

hear cases or controversies.”       Gentry v. Deuth, 456 F.3d 687, 693 (6th Cir. 2006).

“[T]herefore[,] federal courts may not exercise jurisdiction when the controversy has been

mooted, that is to say, when the ‘issues presented are no longer live or the parties lack a legally

cognizable interest in the outcome.’” Id. (quoting Los Angeles County v. Davis, 440 U.S. 625,

631 (1979)) (internal quotation marks omitted). Nonetheless, we have previously recognized the

following with regard to habeas petitions in particular:

       Although the Supreme Court had seemed to limit habeas relief to “the body of the
       petitioner” in Fay v. Noia, 372 U.S. 391, 430–31 (1963), . . . the Court
       subsequently expanded the writ’s scope in Carafas v. LaVallee, 391 U.S. 234, 237
       (1968), stating that the petitioner’s challenge was not mooted by his release from
       incarceration prior to his hearing because, “in consequence of his conviction, he
       cannot engage in certain businesses; he cannot serve as an official of a labor union
       for a specified period of time; he cannot vote in any election held in New York
       State; he cannot serve as a juror.” Ibid. Therefore, “[o]n account of these
       ‘collateral consequences,’ the case is not moot.” Id. at 237–38.

Gentry, 456 F.3d at 693.

       Carafas and its progeny, including several opinions issued by this Court, have recognized

that “the appropriate remedy for a writ of habeas corpus issued pursuant to an unlawful criminal

conviction includes relief not only from the conviction’s direct consequences (e.g. incarceration),



                                                19
                                           No. 15-1145


but also from its collateral consequences.”      Id. (emphasis in original); see, e.g., Benton v.

Maryland, 395 U.S. 784, 790–91 (1969); Sibron v. New York, 392 U.S. 40, 55 (1968); Abela v.

Martin, 380 F.3d 915, 921 (6th Cir. 2004), abrogated on other grounds by Guilmette v. Howes,

624 F.3d 286 (6th Cir. 2010); Green v. Arn, 839 F.2d 300, 302 (6th Cir. 1988). Further, the

Supreme Court has “allowed federal courts to presume the existence of collateral consequences”

in cases where the petitioner is challenging an allegedly unconstitutional conviction, Gentry, 456

F.3d at 694–95, stating, “we have been willing to presume that a wrongful criminal conviction

has continuing collateral consequences (or, what is effectively the same, to count collateral

consequences that are remote and unlikely to occur).” Spencer v. Kemna, 523 U.S. 1, 8 (1998).

       Accordingly, we will presume the existence of collateral consequences flowing from

Ceasor’s allegedly wrongful conviction. See id.; see also Leyva v. Williams, 504 F.3d 357, 363

(3d Cir. 2007). Because Ceasor’s habeas petition has not been mooted by his release from

prison, we proceed to the merits of his claim.

                                     B. Standard of Review

       In habeas proceedings, we review the “district court’s legal conclusions de novo and its

factual findings for clear error.” Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009) (citation

and quotation marks omitted). Our review of the state court’s decision, on the other hand, is

generally “governed by the standards set forth in the Antiterrorism & Effective Death Penalty

Act of 1996,” also known as “AEDPA.” Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir. 2000).

Under AEDPA, “a federal court shall not grant a petition for a 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.’” Id. (quoting 28 U.S.C. § 2254(d)(1)). This highly deferential



                                                 20
                                          No. 15-1145


standard of review is commonly known as “AEDPA deference.” See Fitzpatrick v. Robinson,

723 F.3d 624, 634, 637 (6th Cir. 2013).

       AEDPA deference is warranted in those cases where the state court “put[s] forward a

merits-based ground for denying post-conviction relief”—even if the court also posits an

alternative, procedural ground for denying relief. Moritz v. Lafler, 525 F. App’x 277, 284 (6th

Cir. 2013) (citing Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010)); Brooks v. Bagley,

513 F.3d 618, 624–25 (6th Cir. 2008). However, this Court will review a federal habeas claim

de novo where there “there are simply no results [on the merits], let alone reasoning, to which

this [C]ourt can defer.”   McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003); see also

Thompson v. Bell, 580 F.3d 423, 439 (6th Cir. 2009) (“Because the Tennessee state courts did

not adjudicate Thompson’s chemical competency claim on the merits, there is no state court

decision to which this Court can defer pursuant to 18 U.S.C. § 2254(d).”).

       In the instant case, the trial court relied on Rule 6.508(D)(2) to deny Ceasor’s

post-conviction motion on the grounds that the claim raised by the motion had already been

raised before and decided by the Michigan Court of Appeals. As we have previously recognized,

a petitioner’s claims may be procedurally defaulted under Rule 6.508(D) where the petitioner did

not present his claims “in accordance with [Michigan’s] procedural rules.” Simpson v. Jones,

238 F.3d 399, 405–06 (6th Cir. 2000). However, as acknowledged by the district court and each

of the parties below, Ceasor’s ineffective assistance of appellate counsel claim was never

reviewed by the Michigan Court of Appeals, and therefore could not have been decided against

him. Cf. Mich. Comp. Laws § 6.508(D)(2). Instead, the court of appeals only addressed his

ineffective assistance of trial counsel claim, which itself was presented by his allegedly

ineffective appellate attorney. Nonetheless, after erroneously finding that Ceasor’s ineffective



                                               21
                                                     No. 15-1145


assistance of appellate counsel claim had already been adjudicated on direct appeal, the trial

court neglected to assess whether appellate counsel performed deficiently by failing to file a

motion to remand for a Ginther hearing or whether such a failure was prejudicial. Additionally,

the court made no mention of Ceasor’s argument that appellate counsel was required to file a

separate motion to remand under Rule 7.211(C)(1), and failed to evaluate whether it was

unreasonable for appellate counsel not to file a motion to remand in light of the alleged absence

of facts in the trial record regarding trial counsel’s failure to hire an expert. In other words, the

trial court failed to review Ceasor’s ineffective assistance of appellate counsel claim on the

merits. Because the trial court did not adjudicate this claim on the merits, let alone provide any

reasoning by which this Court may assess its decision, the standard of review is de novo.11 See

Thompson, 580 F.3d at 439; McKenzie, 326 F.3d at 727.

                                                    C. Analysis

         Under the Supreme Court’s holding in Evitts v. Lucey, 469 U.S. 387, 396 (1985), a

defendant has a “constitutional right to counsel on his first appeal [as of right].” Lutze v. Sherry,

392 F. App’x 455, 458 (6th Cir. 2010). This right encompasses “the right to the effective

assistance of counsel.” Evitts, 469 U.S. at 397 (emphasis added); see also Evans v. Hudson, 575

F.3d 560, 564 (6th Cir. 2009) (“On an appeal of right, a criminal defendant is entitled to effective

assistance of appellate counsel.”).

         The two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984), governs

claims of ineffective assistance of counsel, including claims of ineffective assistance of appellate

         11
            The Warden asserts that there is “a strong argument . . . that the [trial] court effectively rejected Ceasor’s
[ineffective assistance of appellate counsel] claim . . . on the merits” because Ceasor’s ineffective assistance of trial
counsel and ineffective assistance of appellate counsel claims are “connected, overlapping, and derivative.”
Appellee’s Br. at 15–16. The Warden cites no authority for this proposition. Further, as explained below, see infra
Part II.C, the adjudication of an ineffective assistance of appellate counsel claim invariably requires us to evaluate
the merits of the underlying ineffective assistance of trial counsel claim.


                                                           22
                                             No. 15-1145


counsel. See Evans, 575 F.3d at 564 (citing Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008)).

Strickland’s first prong requires Ceasor to demonstrate that “counsel’s representation was

deficient in that it ‘fell below an objective standard of reasonableness.’” Towns v. Smith, 395

F.3d 251, 258 (6th Cir. 2005) (quoting Strickland, 466 U.S. at 688). In assessing whether

counsel’s performance was deficient, this Court “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance,” and Ceasor

“must overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Strickland, 466 U.S. at 689 (citation and quotation marks

omitted). The second prong requires Ceasor to show “prejudice,” i.e., “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.

       In evaluating ineffective assistance of appellate counsel claims, “we assess the strength of

the claim appellate counsel failed to raise.” Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008).

Accordingly, we will grant habeas relief only if “there is a reasonable probability that inclusion

of the issue would have changed the result of the appeal.” McFarland v. Yukins, 356 F.3d 688,

699 (6th Cir. 2004).

                            1.   Ineffective Assistance of Appellate Counsel

                                       a.   Deficient Performance

       In support of his ineffective assistance of appellate counsel claim, Ceasor asserts that

“[a]ppellate counsel’s performance was deficient under Strickland because it was objectively

unreasonable for him to fail to file a separate motion for the evidentiary hearing that was both

required under the Michigan Court Rules and absolutely necessary to establish the record for the



                                                 23
                                            No. 15-1145


claim of ineffective assistance of trial counsel.” Appellant’s Br. at 40; see also Reply Br. at 1–5.

In response, the Warden argues that “appellate counsel’s decision to seek reversal on the existing

record, rather than to file a separate motion seeking a remand, did not fall below an objective

standard of reasonableness . . . where appellate counsel specifically indicated in his brief that if

the appellate court found that the record was lacking, he requested a remand for a Ginther

hearing.” Appellee’s Br. at 17–18 (emphasis in original). For the reasons stated below, we reject

the Warden’s argument.

       The Michigan Supreme Court has held that “[i]f a convicted defendant believes that his

attorney’s representation was below an objective standard of reasonableness, the appropriate

procedure is to seek a Ginther hearing.” People v. Smith, 581 N.W.2d 654, 660 (Mich. 1998).

“The purpose of a Ginther hearing is to allow a defendant to establish facts or evidence to assist

in making his claims.” Parker, 2004 WL 1392292, at *6 (citing Ginther, 212 N.W.2d at 925).

“A defendant is not entitled to a Ginther hearing as a matter of right,” but instead “must

demonstrate that there are factual issues regarding his or her counsel’s performance that require

further inquiry.” People v. Randolph, No. 293999, 2010 WL 5383526, at *3 (Mich. Ct. App.

Dec. 28, 2010).

       Here, appellate counsel did not move for a Ginther hearing under Rule 7.211(C)(1).

Instead, counsel asserted the following in his brief:

               [SBS] is a hotly contested matter as is evidenced by [trial] counsel’s
       cross-examination of the prosecution’s medical experts. The complexity of brain
       injury cases is unquestioned. The issues are generally beyond easy understanding
       by legal professionals or lay jurors[, and] [h]andling these cases requires precise
       attention to the particular facts and demands consult with qualified experts. It is
       blatantly obvious from the record that a defense expert was needed. The record
       alone shows that counsel was ineffective. But, if this Court finds that the record is
       lacking, then Mr. Ceasor requests that this Court remand this case to the trial court
       for a Ginther hearing.



                                                 24
                                           No. 15-1145


(R. 7-12, PageID# 575) (emphasis added). Citing appellate counsel’s failure to file a separate

motion to remand, the Michigan Court of Appeals held that “[b]ecause [Ceasor] did not move for

a Ginther hearing, this Court’s review is limited to errors apparent on the record.” Ceasor,

2007 WL 2011747, at *3 (citing People v. Nantelle, 544 N.W.2d 667, 673 (Mich. App. Ct.

1996)). The court went on to state that “based on the existing record,” it could not conclude that

“an expert would have been willing to opine . . . , under the circumstances of [Ceasor’s case] and

given [Brenden’s] symptoms, [that Brenden] could not have suffered his injuries as a result of

being shaken or slammed or that his injuries could have been accidental.” Id. at *4. Thus, the

court opined that “any conclusion that an expert could have successfully challenged

Gilmer-Hill’s diagnosis is entirely speculative.” Id.

       In order to evaluate the reasonableness of appellate counsel’s conduct, we must examine

the state of the law at the time of the appeal. See Jacobs v. Mohr, 265 F.3d 407, 418 (6th Cir.

2001) (“[T]he reasonableness of counsel’s performance is to be evaluated from counsel’s

perspective at the time of the alleged error and in light of all the circumstances”) (citation and

quotation marks omitted); see also, e.g., Goff v. Bagley, 601 F.3d 445, 464–66 (6th Cir. 2010)

(evaluating the reasonableness of appellate counsel’s conduct “[u]nder Ohio law at the time of

[the petitioner’s] direct appeal”). In People v. Nantelle, a published 1996 case, the Michigan

Court of Appeals held that where a defendant “[does] not move for a Ginther hearing” on his

ineffective assistance of counsel claim, the court’s review is “limited to mistakes apparent on the

record.” 544 N.W.2d at 673 (emphasis added). The court of appeals reiterated this rule in

subsequent opinions issued prior to Ceasor’s appeal, rejecting a defendant’s request for an

evidentiary hearing when it did not appear in a separate motion to remand under

Rule 7.211(C)(1). See, e.g., People v. Fisher, No. 262961, 2007 WL 283799, at *2 n.2 (Mich.



                                                25
                                           No. 15-1145


Ct. App. Feb. 1, 2007); People v. Carter, No. 232862, 2003 WL 887594, at *4 (Mich. Ct. App.

Mar. 6, 2003). In the instant case, when the court of appeals limited its review of Ceasor’s

ineffective assistance of trial counsel claim to “errors apparent on the record” based on appellate

counsel’s failure to move for a Ginther hearing, the court cited Nantelle in support. Nantelle, as

a published case, is precedentially binding on future panels of the Michigan Court of Appeals.

See Mich. Ct. R. 7.215(C)(2), (J)(1).

        The Warden cites two unpublished 2013 opinions for the proposition that although it may

have been a “best practice” for appellate counsel to file a separate motion to remand under

Rule 7.211(C), “it [wa]s not necessarily deficient performance to fail to do so.” Appellee’s Br. at

28 (citing People v. Henry, Nos. 306449, 308963, 2013 WL 6331731, at *5 n.1 (Mich. Ct. App.

Dec. 5, 2013); People v. Moore, No. 303750, 2013 WL 1500886, at *1 n.2 (Mich. Ct. App.

Apr. 11, 2013)). We note, however, that the authorities cited by the Warden are unpublished and

therefore non-binding on the Michigan courts. See Mich. Ct. R. 7.215(C)(1). More importantly,

they do not represent the state of Michigan law at the time Ceasor’s direct appeal was decided in

2007.

        Prior to and at the time of Ceasor’s 2007 appeal, the Michigan courts had consistently

held—in both published and unpublished opinions—that a defendant was required to move for a

Ginther hearing in order to avoid having his ineffective assistance of counsel claim adjudicated

solely on the trial court record. See Fisher, 2007 WL 283799, at *2 n.2; Carter, 2003 WL

887594, at *4; Nantelle, 544 N.W.2d at 673. Thus, the 2013 cases cited by the Warden merely

demonstrate that the Michigan courts have not been perfectly consistent in determining whether

to entertain requests for Ginther hearings included only in the appellate brief in the years after




                                                26
                                                 No. 15-1145


Ceasor’s appeal.12 However, the Warden does not cite, and we have not found, any cases

decided prior to Ceasor’s 2007 appeal contradicting Nantelle’s holding that the review of a

defendant’s ineffective assistance of trial counsel claim shall be limited to mistakes apparent on

the record unless he moves for a Ginther hearing.

        Importantly, the Michigan Court of Appeals has also rejected requests for Ginther

hearings on the separate and distinct ground that the attorney failed to file “a supporting

‘affidavit or offer of proof regarding the facts to be established at a hearing’” under

Rule 7.211(C)(1)(a). People v. Babby, No. 256308, 2005 WL 2679687, at *4 (Mich. Ct. App.

Oct. 20, 2005) (quoting Mich. Ct. R. 7.211(C)(1)(a)(ii)); see, e.g., J. Nicks, 2015 WL 9392729,

at *2; Singleton, 2009 WL 2170681, at *2; People v. Williams, 737 N.W.2d 797, 801 (Mich. Ct.

App. 2007); People v. Hamby, Nos. 252735, 252850, 2005 WL 1398361, at *5 (Mich. Ct. App.

June 14, 2005). In this case, appellate counsel did not file an affidavit or offer proof of facts that

he planned to establish if the case were remanded for a Ginther hearing. Thus, unlike the motion

for relief from judgment filed in the trial court several years later, Ceasor’s appellate brief did

not include affidavits from Ceasor or any potential experts, let alone explain whether there were

experts willing to testify in support of Ceasor’s version of the facts. The brief also failed to

explain why Dr. Bandak, the one expert trial counsel had contacted, was not retained as an expert

witness for trial. The Michigan Court of Appeals recognized this deficiency when it concluded

that “the record [did] not support [Ceasor’s] contention that his counsel failed to contact or try to

procure an expert to support [his] theory” because “the trial court granted [Ceasor] a stipulated


        12
           In this vein, we note that both before and after the 2013 cases cited by the Warden were decided, the
Michigan Court of Appeals has rejected defendants’ requests for a remand for a Ginther hearing where such a
request was made in the text of the appellate brief rather than in a separately-filed motion to remand pursuant to
Rule 7.211(C)(1). See, e.g., In re J. Nicks, No. 327352, 2015 WL 9392729, at *2 (Mich. Ct. App. Dec. 22, 2015);
People v. Singleton, No. 285477, 2009 WL 2170681, at *2 (Mich. Ct. App. July 21, 2009).


                                                       27
                                           No. 15-1145


adjournment to consult an expert witness, and [Ceasor] then received additional adjournments

because his counsel had located an expert on SBS willing to review the evidence.” Ceasor, 2007

WL 2011747, at *4. Since the record made clear that Ceasor was granted additional time to

retain an expert but lacked any indication as to why Ceasor ultimately failed to present expert

testimony at trial, the court of appeals presumed that “defense counsel declined to present an

expert witness because any expert consulted was unwilling to support [Ceasor’s] position that

[Brenden’s] injur[ies] w[ere] accidental.” Id.

       In his brief before the Michigan Court of Appeals, appellate counsel asserted that “[t]he

record alone shows that [trial] counsel was ineffective.” (R. 7-12, PageID# 575) (emphasis

added). Approving this characterization, the district court found that:

       [A]ppellate counsel’s decision to raise the ineffective assistance of trial counsel
       claim without separately requesting an evidentiary hearing was a “reasonable
       recognition that the allegations of ineffective assistance could be determined from
       the trial transcript alone. No additional evidence was really necessary for the
       [appellate] court to make a fair determination of the [S]ixth [A]mendment issue.”

Ceasor, 2015 WL 164008, at *6 (quoting Young v. Miller, 883 F.2d 1276, 1280 (6th Cir. 1989)).

This conclusion is clearly erroneous and plainly belied by the trial record. See United States v.

Byrd, 689 F.3d 636, 639–40 (6th Cir. 2012) (“A factual finding is clearly erroneous when the

reviewing court is left with the definite and firm conviction that a mistake has been made.”).

       The trial record included testimony from: Brenden’s mother, Genna; three law

enforcement officers employed by the local sheriff’s department; an emergency room nurse at

Port Huron; the emergency room physician at Port Huron, Dr. Hunt; one of Brenden’s attending

physicians at Children’s Hospital and the prosecution’s expert witness, Dr. Gilmer-Hill; and the

defendant, Ceasor.    Both Ceasor’s and Genna’s testimony—including their statements that

Ceasor had never expressed impatience with Brenden’s high energy level or physically



                                                 28
                                            No. 15-1145


disciplined Genna’s children, as well as Ceasor’s account about playing “gotcha” with Brenden

on the couch immediately before the baby was injured—supported the conclusion that Brenden

was injured by an accidental fall from the couch while Ceasor was in the bathroom and Genna

was out swimming with her daughter. Testifying for the prosecution, Dr. Gilmer-Hill opined

that Brenden’s injuries were inconsistent with such a history and instead showed that Ceasor had

intentionally shaken or slammed Brenden during the hour-and-a-half that Genna was away.

Dr. Gilmer-Hill also testified, on direct and cross-examination, that SBS was an accepted

syndrome in her field and that Dr. Duhaime’s study had demonstrated that a short fall had less

force than shaking and could not cause a severe intracranial injury. Thus, although the trial

record showed that there were competing theories as to how Brenden sustained his injuries (with

only the prosecution’s theory supported by expert testimony), the record did not show whether

any expert would have been willing to testify about (1) SBS’ controversial status in the medical

community, (2) the alleged misinformation included in Dr. Gilmer-Hill’s testimony (including

her mischaracterization of Dr. Duhaime’s study), or (3) the plausibility of Ceasor’s version of the

facts and the implausibility of the prosecution’s theory of the case. The record also lacked any

indication as to why Ceasor requested an adjournment to confer with an expert, but ultimately

did not present any expert testimony at trial. See Ceasor, 2007 WL 2011747, at *4. The

Michigan Court of Appeals recognized these significant omissions and affirmed Ceasor’s

conviction based on the record at trial. Id. at *3–4, *6.

       The United States Supreme Court has recognized that “the services of a lawyer will for

virtually every layman be necessary to present an appeal in a form suitable for appellate

consideration on the merits.”      Evitts, 469 U.S. at 393 (emphasis added).      In Ginther, the

Michigan Supreme Court held that “[t]o the extent his claim depends on facts not of record, it is



                                                 29
                                           No. 15-1145


incumbent on him to make a testimonial record at the trial court level . . . which evidentially

supports his claim and which excludes reasonable hypotheses consistent with the view that his

trial lawyer represented him adequately.” 212 N.W.2d at 925 (citation omitted) (emphasis

added). At the time of Ceasor’s 2007 appeal, the Michigan Court of Appeals had made clear that

in order demonstrate the need for a Ginther hearing, the appellant was required to (1) move to

remand for such a hearing under Rule 7.211(C)(1), see Fisher, 2007 WL 283799, at *2 n.2;

Carter, 2003 WL 887594, at *4; Nantelle, 544 N.W.2d at 673, and (2) pursuant to the Rule’s

requirements, support the motion with an “affidavit or offer of proof regarding the facts to be

established at a hearing,” Mich. Ct. R. 7.211(C)(1)(a); see Williams, 737 N.W.2d at 801; Babby,

2005 WL 2679687, at *4; Hamby, 2005 WL 1398361, at *5. Appellate counsel neither filed a

separate motion to remand under Rule 7.211(C) nor supported his perfunctory request for a

remand, included only in his appellate brief, with an affidavit or proof of the facts that he

planned to establish at the Ginther hearing. Without the latter, the Michigan Court of Appeals

accurately characterized appellate counsel’s assertion that an expert could have successfully

challenged Dr. Gilmer-Hill’s testimony as “entirely speculative.” Ceasor, 2007 WL 2011747, at

*4. Finally, appellate counsel’s argument that the trial record alone demonstrated that trial

counsel was ineffective for failing to retain an expert witness was patently unreasonable. As

Ceasor points out, there was nothing in the trial record showing “Ceasor’s inability to pay for an

expert, why trial counsel did not present an expert, [or] what an expert might have said” at trial.

Appellee’s Br. at 41.     Indeed, the trial record merely demonstrated that there was some

controversy surrounding SBS diagnoses; there was no indication that this controversy actually

affected the outcome of Ceasor’s case. See Ceasor, 2007 WL 2011747, at *3–4. Because

Ceasor’s claim of ineffective assistance of trial counsel depended on facts not in the trial record,



                                                30
                                           No. 15-1145


we find that it was objectively unreasonable for counsel to argue that this claim was

demonstrated by the trial record alone. See Ginther, 212 N.W.2d at 925; Williams, 737 N.W.2d

at 801; Nantelle, 544 N.W.2d at 673. Accordingly, we reject the district court’s conclusion to

the contrary as clearly erroneous.

       Overall, we find that appellate counsel performed deficiently by (1) deciding not to file a

separate motion to remand under Rule 7.211(C)(1), (2) failing to present an affidavit or offer of

proof under subsection (a) of the same Rule, and (3) representing that the record alone showed

that trial counsel was ineffective. For the aforementioned reasons, this conduct “fell below an

objective standard of reasonableness.” See Strickland, 466 U.S. at 688.

                                             b. Prejudice

       Having established deficient performance, Ceasor must also show prejudice. Ceasor

“need not show that counsel’s deficient conduct more likely than not altered the outcome,” but

instead must demonstrate “a probability sufficient to undermine confidence in the outcome.” Id.

at 693–94. As indicated above, appellate counsel’s “failure to raise an issue on appeal could

only be ineffective assistance if there is a reasonable probability that inclusion of the issue would

have changed the result of the appeal.” McFarland, 356 F.3d at 699. Thus, the adjudication of

Ceasor’s ineffective assistance of appellate counsel claim requires an assessment of the strength

of his ineffective assistance of trial counsel claim. See Wilson, 515 F.3d at 707.

                             2. Ineffective Assistance of Trial Counsel

                                      a. Deficient Performance

       As noted by the district court, trial counsel could and did cross-examine Dr. Gilmer-Hill

on several issues, including: Dr. Plunkett’s study indicating that children have died as a result of

falls from a height as short as two or three feet; questions of whether Brenden’s injuries could



                                                 31
                                           No. 15-1145


have been caused by an earlier trauma or a recent vaccination; and two articles published in the

American Journal of Forensic Medicine and Pathology discussing the effect of short falls on

children.    Ceasor, 2015 WL 164008, at *3, *6.        Relying on trial counsel’s “extensive[]”

cross-examination of Dr. Gilmer-Hill, the district court concluded that it was a reasonable trial

strategy to rely on this cross-examination in lieu of an expert witness and held that the

reasonableness of this strategy “defeat[ed] [Ceasor’s] ineffective assistance of trial counsel

claim.” Id. at *6. We disagree with this assessment.

         It is well-established that a trial attorney’s arguments are not evidence. See Darden v.

Wainwright, 477 U.S. 168, 182 (1986); People v. Ullah, 550 N.W.2d 568, 575 (Mich. 1996).

Similarly, an attorney’s questions or examinations of witnesses are not evidence. See United

States v. Ross, 703 F.3d 856, 885 (6th Cir. 2012); United States v. Campbell, 317 F.3d 597, 607

(6th Cir. 2003); People v. Guyton, No. 317970, 2014 WL 6783764, at *1 n.1 (Mich. Ct. App.

Dec. 2, 2014); People v. Bunn, No. 182595, 1996 WL 33324020, at *1 (Mich. Ct. App. July 19,

1996).      At trial, Dr. Gilmer-Hill testified that Brenden’s subdural hematoma and retinal

hemorrhaging were consistent with, and diagnostic of, child abuse.          Dr. Gilmer-Hill also

characterized the defense’s alternative causation theories as unsupported by the medical

literature or not widely accepted. In other words, the only expert testimony presented in a child

abuse case with no direct evidence of abuse supported the prosecution’s version of the facts and

contradicted the defendant’s. Further, although trial counsel attempted to undermine Dr. Gilmer-

Hill’s credibility by highlighting some of the weaknesses affecting her opinion, he lacked the

ability to proffer evidence contradicting her opinions, including evidence that Ceasor’s version of

the facts was consistent with Brenden’s injuries.      He also lacked the ability to refute Dr.

Gilmer-Hill’s allegedly erroneous assertions about causation, the biomechanics of short falls, and



                                                32
                                           No. 15-1145


the etiology of Brenden’s subdural hematoma and retinal hemorrhaging.              Nonetheless, as

indicated by the affidavits attached to Ceasor’s habeas petition, four experts have asserted that

Dr. Gilmer-Hill’s opinions were contradicted by both the medical literature and the facts of this

case, including the hospital records from Port Huron and Children’s. Thus, Ceasor has put

forward a strong argument that “expert testimony was not only integral to the prosecution’s

ability to supply a narrative of [Ceasor’s] guilt, it was likewise integral to [Ceasor’s] ability to

counter that narrative and supply his own.” See People v. Ackley, 870 N.W.2d 858, 867 (Mich.

2015).

         In 2015, the Michigan Supreme Court decided a case involving several similar issues:

People v. Ackley. The prosecution’s case against Ackley arose from the “unexplained and

unwitnessed death of a child”: the three-year-old daughter of Ackley’s live-in girlfriend. Id. at

860. Ackley “denied hurting the child, and said that she must have died as the result of an

accidental fall” from the bed while she was napping alone in her room. Id. At trial, the

prosecution argued that Ackley “killed the child, either by blunt force trauma or [by] shaking

[her].” Id. At a Ginther hearing, trial counsel testified that he contacted only one expert in

preparation for Ackley’s case: Dr. Brian Hunter, a forensic pathologist. Dr. Hunter, however,

informed counsel that he was “not the best person” to testify for the defense because there was a

deep divide between medical experts “about diagnosing injuries that result from falling short

distances, on the one hand, and [SBS] . . . , on the other hand,” and Dr. Hunter “was on the

wrong side of this debate to be able to assist [Ackley].” Id. at 860–61. Dr. Hunter nonetheless

referred trial counsel to a well-known forensic pathologist, Dr. Mark Shuman, who “had

conducted substantial research on short falls” and was a “man of science” who could assess and

potentially support Ackley’s version of the facts. Id. at 861. Despite this referral, trial counsel



                                                33
                                           No. 15-1145


never contacted Dr. Shuman, reached out to any other expert on short falls, or familiarized

himself with the medical literature about the diagnoses at issue in Ackley’s case. At the Ginther

following his trial and conviction for first-degree felony murder and first-degree child abuse,

Ackley proffered the affidavit of Dr. Werner Spitz, an expert in forensic pathology, who opined

that the “bruises on the child’s body were consistent with the intubation and CPR she received on

the day of her death” and “the child’s head injuries could not be attributed to [SBS] but were

caused by a likely accidental ‘mild impact.’” Id. at 861–62.

       Analyzing Strickland’s first prong, the Ackley court concluded that “counsel performed

deficiently by failing to investigate and attempt to secure an expert witness who could both

testify in support of the defendant’s theory that the child’s injuries were caused by an accidental

fall and prepare counsel to counter the prosecution’s expert medical testimony.” Id. at 863. The

court reasoned that trial counsel knew that: “the prosecution’s theory of the case was that

[Ackley] intentionally caused the child’s unwitnessed injuries”; the prosecution “intended to

prove [this premise] with expert testimony”; and “[t]his testimony would require a response.” Id.

Despite this knowledge, trial counsel consulted only with Dr. Hunter, an expert who identified

himself as being on the wrong side of the SBS debate to assist Ackley. Counsel also failed to

contact Dr. Shuman, despite Dr. Hunter’s referral, a choice he “did not have sufficient

information to legitimate” because he failed to investigate the law and facts of his case, including

any medical treatises or articles that could explain the child’s death. Id. The court noted that

counsel’s failure to adequately investigate his options for obtaining favorable expert testimony

was particularly unreasonable “in light of the prominent controversy within the medical

community regarding the reliability of [SBS] diagnoses.” Id. at 864.




                                                34
                                                 No. 15-1145


        Ackley is instructive. Here, as in Ackley, because Brenden’s injuries were unwitnessed

(and Ceasor had no known history of child abuse), the prosecution needed an expert to support

its theory that the child’s injuries were caused by intentional shaking or slamming and could not

have resulted from an accidental fall. See id. at 860, 863, 866–67. Because the prosecution’s

causation theory (and rebuttal of Ceasor’s explanation) was based almost exclusively on the

expert testimony of Dr. Gilmer-Hill, Ceasor has proffered a strong argument that trial counsel

should have known that Dr. Gilmer-Hill’s testimony “would require a response.” See id. at 863.

Further, we have every indication that trial counsel did in fact understand that Dr. Gilmer-Hill’s

testimony would need to be met with countervailing expert testimony.                       At the preliminary

examination of Dr. Gilmer-Hill, which took place almost a year before Ceasor’s December 2005

trial, defense counsel13 represented to the trial judge that Ceasor’s trial was “going to be expert

against expert.”       More damningly, two of Ceasor’s affidavits assert that trial counsel

acknowledged the need for expert testimony at attorney-client meetings, telling Ceasor that he

would need an expert witness “in order to succeed at trial due to the complexity of the medical

issues” in his case. (R. 24-2, PageID# 1368, 1371). Nonetheless, trial counsel failed to retain an

expert witness for trial. According to Ceasor, this decision was based on Ceasor’s inability to

pay Dr. Bandak’s fees of more than $10,000. Ceasor also asserts that after he informed trial

counsel that he could not afford Dr. Bandak’s fees, counsel “refused to entertain other options

for expert testimony” and “never retained an expert for . . . trial.” (Id. at 1369, 1372).

        Under Michigan law, a court may “provide public funds for indigent defendants to retain

expert witnesses” under Mich. Comp. Laws § 775.15. People v. Agar, No. 321243, 2016 WL


        13
             As acknowledged in Ceasor’s opening brief, Ceasor’s counsel at the preliminary examination was David
Black, while his counsel at trial was Kenneth Lord. It is unclear from the trial record whether Black and Lord had
any affiliation, and for the purposes of this appeal, we assume they did not.


                                                       35
                                           No. 15-1145


399933, at *2 (Mich. Ct. App. Feb. 2, 2016); see also People v. Tanner, 671 N.W.2d 728, 729–

30 (Mich. 2003). Although “a trial court is not compelled to provide funds for the appointment

of an expert on demand,” Tanner, 671 N.W.2d at 730 (citing People v. Jacobsen, 532 N.W.2d

838, 839 (1995)), in this case, trial counsel never moved for funds to retain an expert in the first

place.

         We are mindful of the Supreme Court’s admonition that “[t]he selection of an expert

witness is a paradigmatic example of the type of strategic choice that, when made after thorough

investigation of the law and facts, is virtually unchallengeable.” Hinton v. Alabama, 134 S. Ct.

1081, 1089 (2014) (quotation marks and brackets omitted) (emphasis added).                However,

“strategic choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on investigation. In other

words, counsel has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690–91. In this case,

trial counsel’s alleged error was failing to investigate Michigan law governing public funds for

indigent defendants that could have been used to either (a) pay Dr. Bandak’s $11,500 fee or

(b) compensate a different expert at a similar or lower rate. Recently, the Supreme Court found

that an analogous failure to investigate a “state statute providing for defense funding for indigent

defendants” constituted deficient performance where there was evidence that the “attorney knew

that he needed more funding to present an effective defense.” Hinton, 134 S. Ct. at 1088–89. In

Hinton, trial counsel put on an expert witness that he himself deemed “inadequate” because he

mistakenly believed he could not obtain more than $1000 under an Alabama statute providing for

state reimbursement of expenses incurred by an indigent criminal defendant. Id. The Supreme

Court found that counsel’s choice to hire a sub-par expert based on his misapprehension of the



                                                36
                                           No. 15-1145


funding statute not only demonstrated that counsel was ignorant of the law, but also that he failed

to “perform basic research” regarding the availability of public funds. Id. at 1089. This conduct,

the Court held, constituted deficient performance. Id.

       Here, the affidavits sworn to by Ceasor and his uncle indicate that trial counsel’s decision

to try Ceasor’s case without an expert was made without investigating Michigan law. This is

because although trial counsel allegedly told Ceasor that the medical complexity of his case

necessitated hiring a defense expert, there is no record that counsel ever moved for funding under

Mich. Comp. Laws § 775.15 or pursued any other avenues for retaining an expert. Ceasor argues

that because trial counsel failed to investigate available options for paying an expert despite

Ceasor’s indigency, the jury’s determination of his guilt or innocence hung on the testimony of

the prosecution’s lone expert witness. Since Ceasor has never been granted an evidentiary

hearing on this issue, in state or federal court, we do not presume that this assertion will be borne

out by the evidence. However, we are persuaded that Ceasor has demonstrated the strength of

the first prong of his ineffective assistance of trial counsel claim—deficient performance. See

Wilson, 515 F.3d at 707.

                                             b. Prejudice

       With regard to the second prong, prejudice, Ceasor highlights several considerations

suggesting that there is “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” See Strickland, 466 U.S. at 694. First,

“[t]here was no explanation for [Brenden’s] injuries beyond the theor[y] presented by the

expert[], and the prosecution produced no witnesses who testified that [Ceasor] was ever

abusive.” See Ackley, 870 N.W.2d at 865. Instead, witnesses who observed Ceasor at Port

Huron testified that he seemed “shaken up” and upset by Brenden’s injuries. Further, both



                                                 37
                                            No. 15-1145


Genna and Ceasor testified that Ceasor regularly contributed to Brenden’s care, had been left

alone with both of Genna’s children “several times” in the months preceding Brenden’s injuries,

and never used violence to discipline Genna’s children or his own child. Ceasor also testified

that there was nothing Brenden did on the day that he sustained his injuries that made Ceasor

angry or tried his patience. Second, Ceasor’s conviction “turned on the jury’s assessment of the

prosecution’s [causation] theory,” which itself depended on the expert testimony of

Dr. Gilmer-Hill. See id. Nonetheless, while the affidavits sworn to by Drs. Plunkett, Stephens,

Uscinksi, and Van Ee signal that an expert could have challenged Dr. Gilmer-Hill’s testimony

based on the specific facts averred to in Ceasor’s 2005 trial, the affidavits from Drs. Plunkett and

Van Ee indicate that an expert would have testified in support of Ceasor’s version of the facts if

trial counsel had sought their testimony.

       The crux of the prosecution’s proof that Ceasor knowingly or intentionally caused

Brenden serious physical harm—an element of first-degree child abuse that the prosecution was

required to prove beyond a reasonable doubt, see Mich. Comp. Laws § 750.136b(2); People v.

Nowack, 614 N.W.2d 78, 82 (Mich. 2000)—was Dr. Gilmer-Hill’s expert testimony. At closing

argument, the prosecution went out of its way to point out that this testimony was

uncontroverted.   Brenden’s injuries—a subdural hematoma and retinal hemorrhaging—were

medically complex and beyond the easy comprehension of the jury. Further, no amount of cross-

examination or lay witness testimony could have rebutted Dr. Gilmer-Hill’s medical opinions

that these injuries were medically consistent with abuse and inconsistent with an accidental fall.

Thus, we acknowledge, as the Ackley court did, that in many SBS cases “where there is ‘no

victim who can provide an account, no eyewitness, no corroborative physical evidence and no

apparent motive to [harm],’ the expert ‘is the case.’” 870 N.W.2d at 867 (quoting Deborah



                                                38
                                          No. 15-1145


Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87

Wash U. L. Rev. 1, 27 (2009)) (emphasis in original).

                                D. The District Court’s Errors

       Finally, we are unpersuaded by the district court’s reasons for concluding that even

“assuming that appellate counsel was ineffective for failing to move for a Ginther hearing,”

Ceasor cannot show prejudice because his ineffective assistance of trial counsel claim lacks

merit. Ceasor, 2015 WL 164008, at *6. As indicated above, to be afforded habeas relief, Ceasor

need only show that “there is a reasonable probability that inclusion of the issue would have

changed the result of the appeal.” McFarland, 356 F.3d at 699.

       First, we reject as irrelevant the district court’s reliance on the fact that Ceasor did not

submit an affidavit showing that Dr. Bandak would have testified favorably at trial. Ceasor has

provided affidavits from four other experts—two of whom explicitly represented that they would

have testified favorably at his 2005 trial—as well as affidavits swearing that Dr. Bandak

forewent testifying at Ceasor’s trial because Ceasor could not afford to pay his fee. There is no

indication that Dr. Bandak declined to testify because he questioned Ceasor’s version of the

facts, and if the district court doubted the veracity of the statements included in Ceasor’s

affidavits, or sought additional factual development on this issue, the proper course would have

been to hold an evidentiary hearing. See McAdoo v. Elo, 365 F.3d 487, 500 (6th Cir. 2004)

(“[W]hen a defendant diligently seeks an evidentiary hearing in the state courts in the manner

prescribed, but the state courts deny him that opportunity, he can avoid [28 U.S.C.]

§ 2254(e)(2)’s barriers to obtaining a hearing in federal court.”); Stanford v. Parker, 266 F.3d

442, 459 (6th Cir. 2001) (“Generally, a habeas petitioner is entitled to an evidentiary hearing in




                                               39
                                                  No. 15-1145


federal court if the petition ‘alleges sufficient grounds for release, relevant facts are in dispute,

and the state courts did not hold a full and fair evidentiary hearing.’”).

        Additionally, the district court’s finding that it was reasonable for trial counsel to

“extensively” cross-examine Dr. Gilmer-Hill in lieu of calling an expert witness is belied by trial

counsel’s alleged statements, in his meetings with Ceasor, that Ceasor would need an expert

witness “in order to succeed at trial due to the complexity of the medical issues” in his case.

Further, the trial record gives us reason to doubt the efficacy of trial counsel’s cross-examination,

which failed to highlight errors in Dr. Gilmer-Hill’s opinions that a well-prepared attorney would

have recognized.14        More importantly, even if trial counsel could effectively attack Dr.

Gilmer-Hill’s credibility through cross-examination, Ceasor has put forth a cogent argument that

because trial counsel knew that the prosecution would rely on Dr. Gilmer-Hill’s testimony to

show that the medical evidence contradicted and effectively disproved Ceasor’s version of the

facts, it was objectively unreasonable to fail to take steps to retain an expert. See Hinton, 134 S.

Ct. at 1088; Ackley, 870 N.W.2d at 865.

        Finally, we reject as clearly erroneous the district court’s conclusion that there was

sufficient evidence against Ceasor, apart from Dr. Gilmer-Hill’s testimony, to preclude a finding

        14
           For example, at least one portion of trial counsel’s cross-examination of Dr. Gilmer-Hill appears to have
been as farcical as the testimony that preceded it. As noted above, Dr. Duhaime’s study examined autopsy findings
and models of one-month-old infants, not cats and rats. See supra n.9. Nonetheless, during cross-examination the
following exchange transpired:

        Dr. Gilmer-Hill: “[Dr. Duhaime’s studies] involve[ed] clinical data, as well as cats and—”
        Trial counsel: “Cats?”
        Dr. Gilmer-Hill: “Yes, because they were experimental, you can’t, you know, drop people.”
        Trial counsel: “Obviously.”
        Dr. Gilmer-Hill: “You know, so they [sic] were cats and rats and different type[s] of experimental
        animals subjected to different levels of force simulating accidental injury.”
        Trial counsel: “And some of the criticism[s] of those [studies] is that cats and rats do not simulate
        well in relationship to babies and 16 month olds, correct?”
        Dr. Gilmer-Hill: “That’s true.”

(R. 7-7, PageID# 327).


                                                        40
                                                  No. 15-1145


of prejudice, i.e., a reasonable probability that the outcome of Ceasor’s trial would have been

different if trial counsel had presented an expert to challenge Dr. Gilmer-Hill’s testimony. See

Byrd, 689 F.3d at 639–40. The district court relied on two types of evidence in support of this

conclusion. First, the district court observed that Ceasor and Genna told “inconsistent stories to

the police, which called into question their credibility.” Ceasor, 2015 WL 164008, at *7.

Although we agree with the general proposition that inconsistencies affecting a criminal

defendant’s version of events may undermine his or her credibility, see, e.g., United States v.

Edmond, 815 F.3d 1032, 1047 (6th Cir. 2016), the only testimonial inconsistency in this case is

that Ceasor and Genna changed their story about whether Genna was present when Brenden was

injured. However, both Ceasor and Genna admitted to police that Genna was away from the

house when Brenden was injured, the truth came out within days of Brenden’s injuries and more

than a year before Ceasor was tried, and the trial testimony showed that Ceasor never told Genna

to lie to the police. The trial record also demonstrates that Ceasor consistently told the police

and medical personnel that Brenden fell off the couch shortly after they played a game of

“gotcha,” and that Ceasor reiterated this account of how Brenden was injured even after he was

confronted with the inconsistency regarding Genna’s presence at the time of Brenden’s

injuries.15    And, perhaps most importantly, this inconsistency was plainly immaterial to

Brenden’s treatment because it did not alter the alleged cause of his injuries and no witness

testified that Brenden’s treatment would have changed had Ceasor told a different story about

whether Genna was present when the child was hurt.
        15
             We note one more change that Ceasor made to his account of how Brenden was injured: Ceasor
originally told Brenden’s attending physician at Port Huron, Dr. Hunt, that Brenden was injured when he fell off the
couch and hit his head on the coffee table, but later told Dr. Hunt that he did not know how Brenden was injured.
However, this statement is not necessarily inconsistent with Ceasor’s other statements about the cause of Brenden’s
injuries because, since Brenden’s injuries were allegedly unwitnessed and occurred while Ceasor was in the
bathroom, Ceasor could not have known, with certainty, how Brenden was hurt. In any event, the district court did
not rely on this inconsistency as a reason Ceasor could not show prejudice.


                                                        41
                                               No. 15-1145


        The district court also relied on the purported lack of external trauma noted by Drs. Hunt

and Gilmer-Hill to support its conclusion that Ceasor could not show prejudice. However, Dr.

Hunt, who saw Brenden at Port Huron within hours of when he was injured, acknowledged that

bruising does not always occur “right away.” Dr. Gilmer-Hill, on the other hand, conceded that

bruising and oral redness were documented in the nurse’s notes at Children’s, but said she did

not rely on this part of Brenden’s history because the nurse’s notes were the “only place” that

noted bruising and she “didn’t see the bruise [her]self.” (R. 7-7, PageID# 323–24). In our view,

this isolated and contested16 evidence regarding the lack of external trauma to Brenden’s body,

standing alone and weighed against the evidence that Ceasor often served as a second caretaker

for Brenden, never physically disciplined Genna’s children or his own, and repeatedly offered a

consistent account to physicians and police about how he believed Brenden’s (unwitnessed)

injuries occurred, falls far short of being dispositive of the issue of Ceasor’s guilt. See Ackley,

870 N.W.2d at 865–66.

        Based on the strength of Ceasor’s ineffective assistance of trial counsel claim, see

Wilson, 515 F.3d at 707, we find that habeas relief is warranted because there is a reasonable

probability that if appellate counsel had (1) properly moved to remand for a Ginther hearing

under Rule 7.211(C)(1) and (2) submitted an affidavit or other offer of proof in support of this

claim, such performance “would have changed the result of [Ceasor’s direct] appeal.” See

McFarland, 356 F.3d at 699. Having found that appellate counsel performed deficiently by

(1) arguing that the trial record alone supported Ceasor’s claim and (2) failing to comply with the

requirements of Michigan law in 2007, including Rule 7.211(C)(1)(a)’s “affidavit or offer of

proof” requirement, see supra Part II.C.1.a, we remand this case to the district court for an

        16
           As noted above, in addition to the nurse’s notes that documented oral redness and “bruising to the
forehead,” Genna testified she saw an ovular mark on the back of Brenden’s head and a bite mark on his tongue.


                                                     42
                                                  No. 15-1145


evidentiary hearing on whether Ceasor was prejudiced by appellate counsel’s deficient

performance.17

        We note that because the state courts never considered Ceasor’s ineffective assistance of

appellate counsel claim on the merits, the evidentiary limitation articulated in Cullen v.

Pinholster, 563 U.S. 170, 180–82 (2011), and derived from 28 U.S.C. § 2254(d), does not bar the

district court from considering proof in support of Ceasor’s ineffective assistance of appellate

counsel claim at an evidentiary hearing, see Bies v. Sheldon, 775 F.3d 386, 394 n.5 (6th Cir.

2014); McClellan v. Rapelje, 703 F.3d 344, 351 (6th Cir. 2013). We also find that Ceasor

diligently sought an evidentiary hearing before both the trial court and the district court, and

therefore has complied with the requirements of § 2254(e)(2). See Williams v. Taylor, 529 U.S.

420, 432 (2000) (“Under the opening clause of § 2254(e)(2), a failure to develop the factual basis

of a claim is not established unless there is lack of diligence, or some greater fault, attributable to

the [petitioner] or the [petitioner’s] counsel.”).

        In examining the issue of prejudice, the district court18 shall consider the affidavits

submitted with Ceasor’s habeas petition, the sworn statements of counsel, if available, and any

other evidence the district court finds relevant to the question of prejudice. At this juncture, we

offer no comment as to whether Ceasor will be able to demonstrate prejudice at the evidentiary

hearing. Should the district court find prejudice, it may enter a conditional writ of habeas to


        17
           We reject as unpersuasive the Warden’s argument that we should deny Ceasor’s request that this case be
remanded for an evidentiary hearing because his sought-after remedy is more limited in scope than one of the
remedies more typically granted in habeas cases involving claims of ineffective assistance of appellate counsel: a
new state court appeal. See 28 U.S.C. § 2106; United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999)
(observing that “the courts of appeals have broad discretion to issue general or limited remands”).
        18
            Ceasor requests that we remand for further proceedings before a new judge under the test articulated in
John B. v. Goetz, 626 F.3d 356 (6th Cir. 2010). Although 28 U.S.C. § 2106 gives us the authority to reassign a case
on remand, see Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006), “reassignment is an ‘extraordinary
power and should be rarely invoked,’” Sagan v. United States, 342 F.3d 493, 501 (6th Cir. 2003). Having examined
the factors articulated in Goetz, 626 F.3d at 365, we decline to reassign Ceasor’s case at this time.


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                                           No. 15-1145


allow the state courts to consider a new appeal or a renewed request for a Ginther hearing on

Ceasor’s ineffective assistance of trial counsel claim. See, e.g., Goff, 601 F.3d at 472–73, 482

(granting a conditional writ of habeas corpus unless the state courts reopened the petitioner’s

direct appeal within 120 days to permit petitioner to raise his allocution claim); Johnson v.

Mitchell, 585 F.3d 923, 946 (6th Cir. 2009) (granting a conditional writ of habeas vacating the

petitioner’s death sentence unless the state courts conducted a new sentencing hearing within 180

days). If Ceasor cannot show prejudice, further habeas relief should be denied. See Strickland,

466 U.S. at 691–92.

                                         IV. Conclusion

       For the reasons stated in this opinion, we REVERSE the district court’s judgment

denying habeas relief and REMAND for an evidentiary hearing on the prejudice prong of

Ceasor’s ineffective assistance of appellate counsel claim.




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