                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0649n.06

                                           No. 16-1124

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                               Dec 05, 2016
                                                                               DEBORAH S. HUNT, Clerk

ROBERT BRANNON,                                   )
                                                  )
        Petitioner-Appellee,                      )          ON APPEAL FROM THE
                                                  )          UNITED STATES DISTRICT
v.                                                )          COURT FOR THE EASTERN
                                                  )          DISTRICT OF MICHIGAN
LLOYD RAPELJE,                                    )
                                                  )
                                                                     OPINION
        Respondent-Appellant.                     )
                                                  )


Before: COLE, Chief Judge; DAUGHTREY and MOORE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. After a four-day trial in the Monroe

County Circuit Court, Robert K. Brannon was convicted of first-degree criminal sexual conduct

for acts committed against his six-year-old niece. Brannon subsequently moved for a new trial,

asserting a claim of ineffective assistance of counsel. After an evidentiary hearing, the state trial

court granted Brannon’s motion for a new trial, and the Michigan Court of Appeals affirmed.

The Michigan Supreme Court reversed and remanded with instructions to reinstate the

conviction. Brannon then filed a petition for habeas relief in the U.S. District Court for the

Eastern District of Michigan, arguing that counsel was ineffective for failing adequately to

investigate and present expert testimony regarding the reliability of the victim’s testimony. The

district court conditionally granted a writ of habeas corpus based on ineffective assistance of

counsel in failing to investigate and present expert testimony. We REVERSE the district court’s
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Brannon v. Rapelje


judgment regarding Brannon’s ineffective-assistance-of-counsel claim, and REMAND for

consideration of his remaining claims.

                                       I. BACKGROUND

       The charges against Brannon arise out of events that occurred as early as 1995. The

prosecution’s case rested primarily on testimony from Brannon’s niece, who stated that when she

was six years old, while staying at her grandparents’ house in Michigan, Brannon anally

penetrated her with a crayon. R. 6-17 (9/29/2008 Trial Tr. at 251‒56) (Page ID #1062‒67).

Brannon’s niece did not tell anyone about this incident until about ten or eleven years later, after

she learned that her aunt was sexually assaulted by Brannon. Id. at 256‒58, 306 (Page ID

#1067‒69, 1117). The prosecution also offered testimony from the niece’s mother, grandfather,

and aunt, as well as the detective from the Kane County Child Advocacy Center who interviewed

the niece several years later.

       The defense’s strategy focused on undermining the niece’s credibility as a witness.

Brannon’s counsel, Attorney Michael Schloff, offered testimony from alibi witnesses to

demonstrate that Brannon did not visit the grandparents’ house when the alleged conduct took

place. Brannon’s wife testified that they had traveled during the summer in question, but not to

her parents’ home in Michigan, and obtained bank records to corroborate her testimony. R. 6-19

(10/01/2008 Trial Tr. at 58‒68, 90‒97) (Page ID #1487‒97, 1519‒26). Brannon’s former boss

testified to business activity and expense reports that further supported the testimony of

Brannon’s wife. Id. at 171‒73, 182 (Page ID #1600‒02, 1611). Schloff also offered testimony



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from individuals who were friendly or close with Brannon’s niece when they were children, and

who had never heard of any inappropriate activity between Brannon and his niece. Id. at 192‒96

(Page ID #1621‒25).

       After a four-day trial, Brannon was convicted of first-degree criminal sexual assault.

Brannon filed a motion for a new trial, asserting claims of ineffective assistance of counsel,

prosecutorial misconduct, great weight of the evidence, and erroneous admission of evidence.

The trial court denied all but the first claim, for which it granted an evidentiary hearing.

       The inquiry at the evidentiary hearing primarily concerned Schloff’s decision not to call

certain expert witnesses. One witness was Dr. Terence Campbell, one of the three expert

witnesses with whom Schloff spoke prior to trial. R. 6-28 (Ginther Hr’g Tr. at 13‒14) (Page ID

#2011‒12).    Campbell told Schloff that he could provide “some favorable testimony” by

explaining problems with delayed memory and phenomena whereby false memories are created

in children by the suggestion and repetition of facts. Id. at 13, 18‒20 (Page ID #2011, 2016‒18).

He also warned Schloff, however, that his testimony would likely “have both good and bad

components.” Id. at 19‒20 (Page ID #2017‒18). In particular, Campbell anticipated that he

would have to admit that delayed reporting of sexual abuse was common. Id. at 17‒20, 25 (Page

ID #2015‒18, 2023).

       Schloff was also asked about his decision not to interview or call as a witness Dr.

Katherine Okla, who was listed as a potential witness for the prosecution. Schloff admitted that

he did not contact Okla because he believed attorney-client privilege precluded him from doing



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so, and in any case, he did not believe that Okla would speak to opposing counsel. Id. at 26‒27

(Page ID #2024‒25). He did, however, obtain a trial transcript from another trial at which Okla

had testified, contacted an attorney from that case, and discussed Okla’s past publications with

Campbell, who was familiar with her work. Id. at 14, 25‒26 (Page ID #2012, 2023‒24). Schloff

did not contact Okla even when, two weeks before trial, the prosecution informed him of their

decision not to call Okla as a witness. Id. at 23‒24 (Page ID #2021‒22).

       Instead, Schloff decided at that time not to call any witnesses, because he feared that

either his expert or an expert called by the prosecution in rebuttal would offer an opinion that

delays in reporting of sexual abuse are common. Id. at 24‒26 (Page ID #2022‒24). He stated

that, “I felt that the jury, when it initially heard that there was a ten-year delay, was gonna be

very bothered by that and was gonna be quite suspicious of that delay and was going to want to

hear why that delay occurred or perhaps how it could be explained. And I fully expected that

Katherine Okla would provide that answer.” Id. at 24 (Page ID #2022).

       The state trial court found that defense counsel had been ineffective and granted

Brannon’s motion for a new trial. R. 1-2 (Trial Ct. Order at 19) (Page ID #109). The Michigan

Court of Appeals affirmed, holding that counsel had failed adequately to investigate the benefit

of expert witnesses. People v. Brannon, No. 292617, 2010 WL 1052272, at *3 (Mich. Ct. App.

Mar. 23, 2010). The Michigan Supreme Court then reversed in a one-paragraph order and

remanded for reinstatement of the conviction. People v. Brannon, 486 Mich. 1070 (2010). On

remand, the trial court imposed a 20-to-40 year sentence on Brannon. His conviction was



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affirmed by the appellate court, People v. Brannon, No. 303267, 2013 WL 4528453, at *1 (Mich.

Ct. App. Aug. 27, 2013), and the Michigan Supreme Court denied Brannon relief in a standard

order, People v. Brannon, 495 Mich. 935 (2014). Brannon did not appeal to the U.S. Supreme

Court or seek collateral review before the state trial court.

       Brannon then filed the instant petition for habeas corpus relief in the Eastern District of

Michigan, raising eleven claims. Without addressing the remaining claims, the district court

granted Brannon relief based on his claim that counsel was ineffective for failing adequately to

investigate and present expert testimony. R. 8 (Dist. Ct. Order at 1‒2) (Page ID #3172‒73).

This appeal by the state followed.

                                          II. ANALYSIS

       In order to succeed on an ineffective-counsel claim, a petitioner must demonstrate both

deficiency and prejudice. The first prong “requires showing that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). The second prong requires a showing that

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

proceeding would have been different.” Id. at 694.

       Where, as here, a petitioner’s claim was previously adjudicated on the merits in state

court, federal habeas review is further limited by 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under § 2254, we may not

grant federal habeas relief “with respect to [a] claim that was adjudicated on the merits in [s]tate



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court proceedings unless” the state court’s decision “was contrary to” clearly established federal

law, “involved an unreasonable application of” such law, or reached a conclusion “based on an

unreasonable determination of the facts in light of the evidence” before the state court.

28 U.S.C. § 2254(d). The Supreme Court has made clear that federal courts are bound by the

statute’s terms, and we may not grant the writ where “‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(citation omitted).

       In reviewing Brannon’s claim, therefore, we cannot simply ask whether counsel’s

performance fell below the acceptable standard outlined in Strickland. Id. Nor can we reverse a

state court’s determination merely because we would have found a Strickland violation on direct

review. See id. (reversing a grant of relief where “it is not apparent how the [court’s] analysis

would have been any different without AEDPA”); McGowan v. Burt, 788 F.3d 510, 513 (6th Cir.

2015) (reversing a district court’s grant of relief because “its analysis more closely resembles de

novo review”). The key inquiry is not merely whether the state court’s application was incorrect.

Rather, “[t]he pivotal question is whether the state court’s application of the Strickland standard

was unreasonable.” Harrington, 562 U.S. at 101. Even where a federal court would reach a

contrary conclusion on direct review, it “must determine what arguments or theories supported or

. . . could have supported, the state court’s decision,” and reverse only in those extreme cases

“where there is no possibility fairminded jurists could disagree that the state court’s decision

conflicts with [Supreme Court] precedents.” Id. at 102.



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       Here, the district court’s holding did not properly take into account the limits of

§ 2254(d). After finding Schloff’s performance “unreasonable and prejudicial” based upon its

own evaluation under Strickland, the district court concluded that the state court’s decision to the

contrary was “objectively unreasonable.”       R. 8 (Dist. Ct. Order at 17) (Page ID #3188).

Although it found that Schloff’s trial decisions were unreasonable, the district court did not

explain why “fairminded jurists could not disagree that the conclusion reached by the Michigan

Supreme Court was erroneous,” id., and made no effort to identify “what arguments or theories

supported . . . the state court’s decision.” Harrington, 562 U.S. at 102. Under the deferential

terms imposed by AEDPA, we must reverse the grant of habeas relief.

       Although there may be compelling reasons to view Schloff’s performance as deficient,

the Michigan Supreme Court’s determination that he “made a reasonable strategic decision to

forego expert testimony in light of the possibility that the witness might also provide testimony

favorable to the prosecution” was not objectively unreasonable. Brannon, 486 Mich. at 1070.

Schloff contacted three potential experts and discussed the delayed-reporting phenomenon at

length with Campbell.      He learned that while Campbell could render favorable opinions

regarding the effect of delay and repetition of facts on a child’s memory, he might also represent

that delayed reporting is common in sexual assault cases, which could have adversely affected

Brannon’s case.

       The state court’s determination that foregoing expert testimony constituted a “reasonable

strategic decision” is supported by federal law. The Supreme Court has recognized that counsel



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may sometimes forego key arguments when raising them could “increase[] the likelihood of the

prosecution[] producing its own evidence . . . or transform the case into a battle of the experts.”

Harrington, 562 U.S. at 108‒09. Indeed, because criminal cases impose such a high burden of

proof on the prosecution, “it sometimes is better to try to cast pervasive suspicion of doubt than

to strive to prove a certainty that exonerates.” Id. at 109. Here, Schloff could have reasonably

believed that producing his own expert would prompt the prosecution to present unfavorable

evidence that would further damage Brannon’s case. Moreover, foregoing this evidence may

have been a reasonable strategic decision given Schloff’s belief that the jury would be suspicious

of the delay in reporting, which, coupled with the alibi defense, could cast a sufficient amount of

doubt on the prosecution’s case. See R. 6-28 (Ginther Hearing Tr. at 24) (Page ID #2022).

       Considering the “arguments or theories [that] . . . could have supported[] the state court’s

decision,” Harrington, 562 U.S. at 102, it is possible that fairminded jurists could disagree as to

whether trial counsel’s actions and omissions were justified as reasonable strategic decisions.

Although there is evidence that Schloff’s performance reflects flawed interpretations of the law,

that alone is insufficient to overturn a state court’s decision under AEDPA. Because the state

court did not unreasonably apply the Strickland standard, Brannon is not entitled to federal

habeas relief on his claim for ineffective assistance of counsel in failing to investigate and

present expert testimony. We therefore reverse the judgment of the district court and remand for

consideration of Brannon’s remaining ten claims.




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                                 III. CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s judgment regarding

Brannon’s ineffective-assistance-of-counsel claim, and REMAND for consideration of his

remaining claims.




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