                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0003p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                                                 -
 BRUCE GUILMETTE,
                                                 -
                             Petitioner-Appellee,
                                                 -
                                                 -
                                                     No. 08-2256
          v.
                                                 ,
                                                  >
                                                 -
                      Respondent-Appellant. -
 CAROL R. HOWES, Warden,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
              No. 05-72646—Victoria A. Roberts, District Judge.
                                Argued: October 16, 2009
                          Decided and Filed: January 12, 2010
                Before: MARTIN, ROGERS, and COOK, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Janet A. Van Cleve, MICHIGAN ATTORNEY GENERAL’S OFFICE,
Lansing, Michigan, for Appellant. Kimberly Thomas, UNIVERSITY OF MICHIGAN,
MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor, Michigan, for Appellee.
ON BRIEF: William C. Campbell, ASSISTANT ATTORNEY GENERAL, OFFICE OF
THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Kimberly
Thomas, UNIVERSITY OF MICHIGAN, MICHIGAN CLINICAL LAW PROGRAM, Ann
Arbor, Michigan, for Appellee.
     ROGERS, J., delivered the opinion of the court, in which COOK, J., joined.
MARTIN, J. (pp. 10-17), delivered a separate dissenting opinion.
                                   _________________

                                         OPINION
                                   _________________

        ROGERS, Circuit Judge. A Michigan jury convicted petitioner Bruce Guilmette of
first-degree home invasion. In a petition for a writ of habeas corpus, Guilmette alleges that
his trial attorneys provided constitutionally ineffective assistance. The district court found


                                              1
No. 08-2256         Guilmette v. Howes                                                 Page 2


that this claim was not procedurally defaulted and that petitioner’s counsel were ineffective,
and the district court therefore granted petitioner a conditional writ. Because our precedents
dictate that petitioner procedurally defaulted his ineffective assistance of counsel claim, and
because petitioner has not established cause and prejudice for that default, habeas relief was
not warranted in this case.

        At approximately noon on January 7, 1999, Joan McCormick was alone in her home
in Howell, Michigan. A man walked past her window, approached her front door, and then
repeatedly rang the doorbell. McCormick did not answer the door. The man went out past
a van he had parked in McCormick’s driveway, and she lost sight of him for a few minutes.
He then returned to the front door, and, after again repeatedly ringing the doorbell, began
banging on the door. After what McCormick described as “a lot” of such banging, she saw
her doorknob move, and then the locked door came “crashing open.” McCormick screamed
and attempted to run away from the door. She tripped and fell, and when she then glanced
back at the door, the man had disappeared from the doorway.               From her window,
McCormick saw the man circle the van from the passenger side to the driver side, enter the
van, and drive away. McCormick identified the van as a gray Chevy Astro with a red
pinstripe.

        Just after she fell, McCormick called 911 and described both the man and his vehicle
to the operator. Trooper Jennifer Coulter responded to the call, and when she arrived at
McCormick’s residence, Coulter noticed footprints in the snow leading up to the front door.
After interviewing McCormick, Coulter photographed the best footprint she could find.
Later that day, McCormick independently photographed a footprint in the snow on the
threshold of her doorway. McCormick identified the petitioner, Bruce Guilmette, out of two
photographic lineups during the next few weeks.

        Guilmette was charged with home invasion.           At the preliminary hearing on
February 24, 1999, McCormick stated that Guilmette resembled the man she had seen at her
door but said that Guilmette’s brother, who was present at the hearing, bore a similar
resemblance. She also described the man at her door as having hair that protruded from
underneath his hat, probably by one or two inches.
No. 08-2256          Guilmette v. Howes                                                 Page 3


        At Guilmette’s trial for first-degree home invasion, McCormick testified to the
events of January 7 and stated that the man at her door “look[ed] a lot like” Guilmette. She
also testified that the man she identified in the lineups—Guilmette—was the man at her
house. A police officer testified that McCormick had identified a picture of Guilmette’s
vehicle, a gray Astro with a red pinstripe, as the vehicle in which the man had driven away.
The prosecution additionally introduced into evidence both Trooper Coulter’s photograph
of the footprint leading up to the house and McCormick’s photograph of the footprint on the
threshold of her home.

        The defense maintained that Guilmette had been mistakenly identified, relying
primarily on three arguments. First, the defense presented evidence that the driver-side door
on Guilmette’s van was inoperable, such that Guilmette could not have entered the van in
the way that McCormick described. Second, the defense offered testimony and photographic
evidence that, at least as of Christmas, 1998, Guilmette had short hair. They argued that this
contradicted McCormick’s testimony from the preliminary hearing that the man at her door
had longer hair. Finally, the defense offered a time-stamped receipt from a methadone clinic
that indicated that Guilmette was at that clinic, which was approximately fifty miles from
McCormick’s home, at 12:38 p.m. on the day of the alleged home invasion.

        In rebuttal, the state presented evidence that Guilmette had previously pled guilty to
a home invasion and larceny with a similar modus operandi and in connection with which
Guilmette had been driving a similarly described van. The court instructed the jury to
consider this testimony only for identification or as evidence of a scheme and pattern. The
prosecution also elicited testimony that the clock in the computer that generated the
methadone clinic receipts was often inaccurate and that nineteen days after the incident, the
clock was running eighteen minutes slow. The prosecution finally offered testimony of a
detective who had driven from McCormick’s home to the methadone clinic in forty-five
minutes, driving eighty to eighty-five miles per hour on the freeway and despite a six minute
delay for road construction.

        The jury convicted Guilmette of first-degree home invasion, and Guilmette was
unsuccessful in his direct appeal. On state collateral review, Guilmette argued for the first
time that his trial counsel were ineffective for failing to discover that the photographs of the
No. 08-2256            Guilmette v. Howes                                                         Page 4


two footprints admitted at trial apparently did not match. He argued that this constitutionally
ineffective representation was prejudicial because the footprint from the door’s threshold
was the only proof of entry, a required element of first-degree home invasion. See Mich.
Comp. Laws § 750.110a(2). The state trial court on collateral review denied this claim on
the merits, finding that focusing on identification—rather than on whether there was
entry—was a matter of trial strategy. Both the Michigan Court of Appeals and the Michigan
Supreme Court denied leave to appeal, issuing identical orders citing Guilmette’s “failure
to meet the burden of establishing entitlement to relief under [Mich. Ct. R. 6.508(D)].”

         Guilmette then filed a habeas petition seeking relief for the same alleged violation.
The district court granted a conditional habeas writ, finding that Guilmette’s trial counsel
were constitutionally ineffective because they failed to investigate the differences between
the two photographs. The warden now appeals, arguing that this ineffective assistance claim
was procedurally defaulted and that Guilmette has failed to establish cause and prejudice for
that default.

         Guilmette’s ineffective assistance of counsel claim is procedurally defaulted because,
although the state trial court on collateral review addressed the merits of Guilmette’s claim,
both the state appellate and supreme courts denied the claim pursuant to Mich. Ct. R.
6.508(D). “When a habeas petitioner fails to obtain consideration of a claim by a state court
. . . due to a state procedural rule that prevents the state courts from reaching the merits of
the petitioner’s claim, that claim is procedurally defaulted and may not be considered by the
federal court on habeas review.” Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003) (internal
quotation marks omitted). Guilmette did not raise his ineffective assistance of trial counsel
claim on direct appeal, as required by Mich. Ct. R. 6.508(D)(3). Our decision in Munson v.
Kapture, 384 F.3d 310 (6th Cir. 2004), requires the conclusion that the Michigan courts
enforced Rule 6.508(D)(3) in this case and thus that Guilmette’s claim is procedurally
defaulted. In Munson, as in the present case, the petitioner did not raise certain claims on
direct appeal. 384 F.3d at 312-13. In both cases, the petitioner then raised the claims in a
                                                                                                        1
state trial court on collateral review, and the state trial court denied the claims on the merits.


         1
          The trial court dismissed one of Munson’s claims as procedurally defaulted, but the court denied
the remainder of the claims, including a claim that Munson’s “trial counsel rendered ineffective
assistance,” on the merits. Munson, 384 F.3d at 313.
No. 08-2256            Guilmette v. Howes                                                           Page 5


Id. at 313. Then in both cases, the state appellate and state supreme courts each denied
leave to appeal in brief orders, stating that the petitioner had “failed to meet the burden
of establishing entitlement to relief under MCR 6.508(D).” Id. In Munson, we held that
Rule 6.508(D) constituted an adequate and independent state ground and thus held the
claims to be procedurally barred. Id. at 315. No relevant fact distinguishes Munson
from the present case, and thus Guilmette’s claim is similarly procedurally defaulted.

         This result is consistent with Abela v. Martin, 380 F.3d 915 (6th Cir. 2004). In
that case, both the Michigan trial court and the Michigan Court of Appeals denied the
petitioner’s collateral claims on the merits before the Michigan Supreme Court denied
review pursuant to Mich. Ct. R. 6.508(D). Id. at 920. In part because the lower state
courts had “repeatedly ruled on the merits,” we concluded in Abela that the invocation
of Mich. Ct. R. 6.508(D) by only the Michigan Supreme Court did not sufficiently
indicate that the court was invoking a procedural bar, and thus that the claim was not
procedurally defaulted. Id. at 923-24. In the present case, however, both the state
appellate and state supreme court denied leave to appeal pursuant to Rule 6.508(D); this
case is thus squarely controlled by our decision in Munson.2

         This conclusion is supported by five of this court’s other cases, three of which
post-date Abela, and all of which hold that habeas claims were procedurally defaulted
in situations materially indistinguishable from the present case. See Alexander v. Smith,
311 F. App’x 875 (6th Cir. 2009) (post-Abela); Spencer v. Booker, 254 F. App’x 520
(6th Cir. 2007) (post-Abela); McCray v. Metrish, 232 F. App’x 469 (6th Cir. 2007)
(post-Abela); Burroughs v. Makowski, 282 F.3d 410 (6th Cir. 2002) (pre-Abela);
Luberda v. Trippett, 211 F.3d 1004 (6th Cir. 2000) (pre-Abela). In each, the state trial
court on collateral review denied the petitioner’s claims on the merits, and then both the
state appellate and state supreme courts denied the claims pursuant to Mich. Ct. R.


         2
           The warden suggests that the ground relied upon by the state appellate court is irrelevant because
the state supreme court order is an explained order and because federal courts should only examine lower
court opinions when state supreme court orders are not explained. Cf. Simpson v. Jones, 238 F.3d 399,
407-08 (6th Cir. 2000). The warden thus argues that Guilmette’s claim would be procedurally defaulted
even if the state appellate court had considered the merits of Guilmette’s claim of ineffective assistance
of counsel. Cf. Alexander v. Smith, 311 F. App’x 875, 883 (6th Cir. 2009). We decline to resolve this
issue because its resolution is not necessary to decide the present case.
No. 08-2256            Guilmette v. Howes                                                          Page 6


6.508(D). See Alexander, 311 F. App’x at 879; Spencer, 254 F. App’x at 521-22;
McCray, 232 F. App’x at 477; Burroughs, 282 F.3d at 412; Luberda, 211 F.3d at 1006.
We held that the petitioner’s claims were procedurally defaulted in each case. Alexander,
311 F. App’x at 884; Spencer, 254 F. App’x at 524-25; McCray, 232 F. App’x at 478;
Burroughs, 282 F.3d at 414; Luberda, 211 F.3d at 1008. The binding nature of these
precedents—procedurally closer than Abela to the instant case, and contained in
published opinions issued both before Abela (Burroughs and Luberda) and after Abela
(Munson)—is inescapable.3

         Because Guilmette’s ineffective assistance of counsel claim is procedurally
defaulted, he must show cause and prejudice to excuse that default. Munson, 384 F.3d
at 315. He cannot do so because his trial counsel were not constitutionally ineffective
and because any error by those counsel did not prejudice him. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Guilmette argues correctly that ineffective
assistance of appellate counsel can constitute cause to overcome a procedural default.
Howard v. Bouchard, 405 F.3d 459, 478 (6th Cir. 2005). Where ineffective assistance
of appellate counsel is presented as a possible cause to excuse the default of a claim of
ineffective assistance of trial counsel, a court in some circumstances “must examine the
merits of [the petitioner’s] ineffective-assistance-of-trial-counsel claim.” Ivory v.
Jackson, 509 F.3d 284, 294 (6th Cir. 2007). Guilmette argues that his trial counsel were
ineffective for failing to notice that the two footprint photographs introduced by the
prosecution at trial—one taken by Trooper Coulter and the other taken by McCormick
on the threshold of her door—apparently did not match. He argues that had his counsel
noticed this discrepancy, they could have argued that the footprint on the threshold was




         3
            We respect the reasoning of the court in Abela, and the forceful restatement of that reasoning
by our dissenting colleague in this case. On a clean slate we might well apply such reasoning here. We
are not in a position to do so, however, because of the compelling nature of binding precedent. We cannot
escape such compulsion by ignoring cases or disregarding the stated facts of such cases. Luberda, a
published opinion of this court preceding Abela, clearly states that the state trial court in Luberda’s case
did not rely upon Mich. Ct. R. 6.508(D). Luberda, 211 F.3d at 1006. In Munson, a published opinion of
this court decided after Abela, four out of five of the claims—including claims specifically raised on the
federal appeal—had been denied by the state trial court “for reasons other than Munson’s failure to raise
them earlier.” Munson, 384 F.3d at 313.
No. 08-2256        Guilmette v. Howes                                              Page 7


not Guilmette’s, and thus that the state had failed to establish entry. See Mich. Comp.
Laws § 750.110a(2).

       This argument fails because it relies upon the improbable suggestion that
Guilmette could have broken open McCormick’s door without satisfying the element of
entry, which is defined in Michigan as “any part of defendant’s body [being] introduced
within the house.” See People v. Gilman, 239 N.W.2d 396, 401 (Mich. Ct. App. 1976).
Guilmette’s counsel had a promising mistake-of-identity defense based upon the victim’s
questionable identification, Guilmette’s plausible alibi, and the inconsistency between
the victim’s description of Guilmette’s actions and the testimony regarding Guilmette’s
inoperable driver-side door. By contrast, a defense on the element of entry required the
jury to believe that Guilmette could break open a locked door without having any part
of his body enter into the house. Guilmette’s trial counsel were not required to
make—or to investigate facts relevant to—this implausible argument, in order to be
effective. “[S]trategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91. Because the mistaken identity defense
was strong, and because a reasonable attorney could have concluded that an entry
defense was futile, a choice to conduct only a limited investigation does not rebut the
strong presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690; see also
Bobby v. Van Hook, 130 S.Ct. 13, 19 (2009). The implausibility of this argument also
precludes a finding of prejudice, for there is not “a reasonable probability” that “the
result of the proceeding would have been different” if counsel had presented this
argument to the jury. See Strickland, 466 U.S. at 694.

       This is all the more true because, if Guilmette’s counsel had contested entry, it
might have either removed the focus from or undermined the credibility of the defense’s
misidentification argument. See United States v. Ryan, 23 F. Supp. 2d 1044, 1050-51
(S.D. Iowa 1998). Indeed, statements by Guilmette’s trial counsel during closing
argument support the conclusion that a focused identification defense was chosen in part
No. 08-2256         Guilmette v. Howes                                               Page 8


to support the credibility of the defense. In that closing, Guilmette’s counsel relied
specifically on the consistency of the defense’s case as a reason for the jury to find it
credible. Attorney Gatesman argued, “At no time has anyone on the defense stood up,
tried to persuade, presented to you, presented a question to a witness, that would try to
persuade you that what Ms. McCormick said up there happened around January 7, 1999,
didn’t happen.” Defense counsel also argued that the prosecution’s inconsistent
alternative arguments undermined the credibility of the case against Guilmette. In
rebutting the defense’s alibi evidence, the prosecution suggested both that someone
might have impersonated Guilmette at the methadone clinic to generate the receipt and
that, even if the receipt was genuine, Guilmette could have traveled from the crime scene
to the methadone clinic in the time between the crime and the issuance of the receipt.
In response to these alternative arguments, the defense counsel stated, “And I think the
prosecution thinks he was at the methadone clinic. And I’ll tell you why I think they
think that. Because, they investigated and they presented their positions on what we’ve
presented.” In other words, the fact that the prosecution presented detailed evidence and
arguments regarding the time line undermines the credibility of their argument that
someone else might have been impersonating Guilmette at the clinic. Together, these
arguments suggested that the jury ought to find the defense more credible because
defense counsel, unlike the prosecutor, had refrained from making inconsistent
alternative arguments. Counsel’s limited investigation of the evidence related to entry
“must be directly assessed for reasonableness” in light of this strategy, “applying a heavy
measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. Applying
that deference, it cannot be said that counsel’s choices constituted “errors so serious that
counsel [were] not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687.

        This conclusion does not conflate the element of entry with the element of
breaking. It is possible to satisfy the element of breaking without satisfying the element
of entry in other factual situations, as when someone uses a crowbar to break into a
dwelling. Cf. People v. Rodgers, No. 225338, 2001 WL 1321598, at *1 (Mich. Ct. App.
Oct. 26, 2001) (relying upon eyewitness testimony to establish entry where
No. 08-2256        Guilmette v. Howes                                              Page 9


circumstantial evidence indicated that the defendants used a crowbar to break into a
garage). But this does not apply to the present case, where there is no suggestion that
the perpetrator used any implement.              A defendant would have to be
extraordinarily—indeed, impossibly—graceful to break down a door manually without
“any part of [that] defendant’s body [being] introduced within the house.” See Gilman,
239 N.W.2d at 401. To recognize this is not to conflate breaking with entering
generally, but rather is only to notice that breaking may not be possible without entering
under certain facts.

       For these reasons, Guilmette has not shown that his trial counsel were ineffective,
and he cannot establish that he was prejudiced by the alleged ineffectiveness. His
appellate counsel was therefore also not ineffective, for “‘appellate counsel cannot be
ineffective for a failure to raise an issue that lacks merit.’” Willis, 351 F.3d at 745
(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Guilmette has therefore
failed to establish cause and prejudice for his procedural default of his claim of
ineffective assistance of trial counsel, and thus he is barred from raising that issue on
habeas review.

       We therefore REVERSE the judgment of the district court and REMAND for
further proceedings consistent with this opinion.
No. 08-2256         Guilmette v. Howes                                              Page 10


                                  __________________

                                       DISSENT
                                  __________________

        BOYCE F. MARTIN, JR., Circuit Judge, dissenting. The majority has found that
Guilmette procedurally defaulted by not bringing his claim of ineffective assistance of
counsel immediately and that, even if he had, he cannot succeed on the merits of his
claim. I disagree with both conclusions and, therefore, respectfully dissent. As to the
alleged procedural default, neither the final state court ruling on the merits of this case
nor the courts that heard the case on appeal mentioned a procedural bar. Thus, under this
Court’s holdings in Abela v. Martin, 380 F.3d 915 (6th Cir. 2004), and Ivory v. Jackson,
509 F.3d 284 (6th Cir. 2007), cert. denied, — U.S. —, 128 S. Ct. 1897 (2008),
Guilmette’s claims for ineffective assistance of counsel are not procedurally defaulted.
As to the ineffective assistance claim, under the Strickland analysis, Guilmette’s
attorney’s failure to conduct an adequate investigation constituted ineffective assistance
of counsel at trial. He neither cross-examined the state’s experts nor conducted a
reasonable investigation into a single photograph of a footprint, taken by a witness after
the state trooper had left the scene, that constituted the only evidence of entry into the
house, a necessary element of the charge of home invasion.

   A.    Guilmette is not procedurally barred from bringing his habeas claim

        Guilmette first raised his ineffective assistance claim during state collateral
proceedings. The majority contends that, because the claims raised by Guilmette in his
habeas petition were raised for the first time in his state post-conviction motion for relief
from judgement—and not on direct appeal—federal review of his claims is barred by
procedural default. See supra at 4. To be sure “[i]t is well-settled that when a state
prisoner has ‘defaulted his federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is barred’ unless the
petitioner can show cause for the default and prejudice because of it, or a fundamental
miscarriage of justice.” Abela, 380 F.3d at 921 (citing Coleman v. Thompson, 501 U.S.
722, 750 (1991)). Yet, a state procedural rule is an “independent” ground for precluding
No. 08-2256        Guilmette v. Howes                                             Page 11


federal habeas review only if the state court actually relied on the rule to bar the claim
at issue. Id. As we have held, “a state procedural rule is an independent and adequate
state ground only if the state court rendering judgment in the case clearly and expressly
stated that its judgment rested on a procedural bar.” Id. (citing Simpson v. Sparkman,
94 F.3d 199, 202 (6th Cir. 1996)). This makes sense - procedural default is a draconian
result, so it should apply only when the state court’s reasoning is clear and unequivocal.

       The Michigan Court of Appeals and the Michigan Supreme Court denied leave
to appeal on the ground that Guilmette failed “to meet the burden of establishing
entitlement to relief under [Michigan Court Rule] 6.508(D).” The majority errs in
construing the Michigan Supreme Court’s order—and the citation to M.C.R. 6.508(D)
generally—as an invocation of the procedural default provision set forth in M.C.R.
6.508(D)(3). M.C.R. 6.508(D) broadly pertains to motions for relief from judgment and
states that courts many not grant relief if the motion suffers from either procedural or
substantive defects.

       As noted above, our task is to determine whether the state court “clearly and
expressly stated that its judgment rested on a procedural bar.” Sparkman, 94 F.3d at
202. Here, as with Abela, the Michigan Supreme Court only referenced M.C.R.
6.508(D), generally, as the basis for denying Guilmette leave to appeal the judgment of
the Michigan Court of Appeals. Although M.C.R. 6.508(D)(1), (2), and (3) list specific
procedural grounds for denying a defendant relief from judgment, these procedural
grounds are not the exclusive grounds for which a court may deny relief pursuant to
M.C.R. 6.508(D). A court may deny relief from judgment under 6.508(D)(4) for the
substantive, i.e. non-procedural, reason that the defendant simply failed to meet his
burden of “establishing entitlement to the relief requested.” As such, the Michigan
courts’ bare citation to M.C.R. 6.508(D) in orders denying Guilmette leave to appeal
does not demonstrate that the courts denied him leave to appeal on the basis of a
procedural default, much less on the procedural ground described in M.C.R. 6.508(D)(3),
which the warden urges on this Court.
No. 08-2256         Guilmette v. Howes                                             Page 12


        The majority attempts to distinguish Abela from the case at hand by noting that,
here, both the Michigan Court of Appeals and the Michigan Supreme Court invoked
M.C.R. 6.508(D) in their denial of review, while in Abela, the Court of Appeals had
made a determination on the merits. However, this is a distinction without a difference.
As we noted in Ivory v. Jackson, 509 F.3d 284, 292 (6th Cir. 2007), the Abela Court
itself distinguished two prior Sixth Circuit decisions holding that a denial of relief based
on M.C.R. 6.508(D) provides an adequate and independent state procedural sanction
sufficient to preclude habeas review on this same basis. Id. at 923-24 (citing Simpson
v. Jones, 238 F.3d 399 (6th Cir. 2000), and Burroughs v. Makowski, 282 F.3d 410 (6th
Cir. 2002)). However, the Abela Court distinguished Simpson and Makowski on the
ground that, in those cases, the last reasoned state court opinion that referenced anything
other than M.C.R. 6.508(D) had without question denied relief on procedural grounds.
Id. at 923. Thus, one could assume in Simpson and Makowski that the affirmance under
M.C.R. 6.508(D) was an affirmance of the lower court’s procedural findings. In Abela,
however, as in this case, the lower state courts had made no procedural holdings in the
last reasoned opinion, so it would be difficult to read the simple affirmance as being
based on procedural grounds.

        The majority relies heavily on Munson v. Kapture, 384 F.3d 310 (6th Cir. 2004),
because in that case, as in this case, both the Michigan Court of Appeals and the
Michigan Supreme Court invoked M.C.R. 6.508(D) in denying review. However,
Munson must be distinguished for the same reason that we distinguished Simpson and
Makowski. In Munson, the last reasoned opinion was at the post-conviction state trial
court proceedings. The court denied Munson’s claims, inter alia, because he “fail[ed]
to show just cause why prosecutor misconduct was not raised in earlier appeals.”
Munson, 384 F.3d at 313. Thus, the last reasoned state-court decision in Munson was
based, at least in part, on procedural grounds, so, as in Simpson and Makowski, we could
No. 08-2256             Guilmette v. Howes                                                            Page 13


assume that the M.C.R. 6.508(D) affirmance was based on the procedural grounds cited
by the trial court.1

         The last reasoned state-court opinion issued in both Abela and in Guilmette’s
case, by contrast, explicitly adjudicated the case on the merits without any reference to
procedural issues. Thus, as with Abela, the Michigan Supreme Court’s summary order
cannot possibly be interpreted solely to rely on a procedural bar, as opposed to the
non-procedural reason that Guilmette simply failed to meet his burden of “establishing
entitlement to the relief requested.” Indeed, given the line of prior merits determinations
in Guilmette’s case, it is much more reasonable to presume that the Michigan Supreme
Court’s reference to M.C.R. 6.508(D) signaled its agreement with the lower courts’
merits determinations than it is to presume that the reference signaled, for the first time
in this case, the invocation of a procedural bar.2

   B.     Guilmette successfully showed ineffective assistance of counsel at trial.

         The majority also errs in its finding that Guilmette could not show ineffective
assistance of counsel. Guilmette trial counsel rendered ineffective assistance in two
related ways: first, by failing to conduct a reasonable investigation into the facts,
specifically by not investigating the discrepancies between the photograph of the


         1
            The majority justifies ignoring Abela by implying that it is an outlier case, bracketed between
Luberda v. Trippett, 211 F.3d 1004 (6th Cir. 2000), which preceded it, and Munson, which succeeded it
in 2004. But I do not read Abela as being in any way inconsistent with these other cases and thus cannot
justify reading it out of existence. To be sure, the patchwork of cases in this area is complicated, but the
fact remains that each case affirms the proposition relevant in this case that we are to look to the last
reasoned Michigan opinion to determine if it was based on procedural or substantive grounds.
           Additionally, I take issue with the majority’s statement that the it is “clear” (supra at 6 n.3) on
what grounds the state trial court relied in Luberda. My only thought is that the majority bases its
assumption that the state court relied solely on substantive, non-procedural grounds upon the opinion’s
vague pronouncement that the state court relied on “alternative grounds.” Luberda, 211 F.3d at 1006. As
this is not at all clear from the opinion, and it is possible that the state court in Luberda included procedural
findings in their “alternative grounds,” I cannot agree with the majority that Luberda constitutes binding
precedent inconsistent with the cases that followed, i.e., Abela.
         2
           Guilmette also argues that, even if he had procedurally defaulted, his appellate counsel was
deficient for failing to raise ineffectiveness of trial counsel on appeal and that this deficiency prejudiced
him because, had the appellate court known of the trial counsel’s oversight, there was a reasonable
probability of a different outcome, satisfying the “good cause” test required to overcome procedural default
under Mapes v. Coyle, 171 F.3d 408, 428 (6th Cir. 1999). As Guilmette’s claims were not procedurally
defaulted, I need not reach this claim. However, as I note below, Guilmette has successfully stated a claim
for ineffective assistance of counsel at trial, and this would likely satisfy the “good cause” test to overcome
any procedural default.
No. 08-2256             Guilmette v. Howes                                                          Page 14


suspect’s footprint taken by the police and the photograph of the threshold footprint
taken by the homeowner after the police investigation, and, second, by failing to contest
the prosecution’s proofs on a necessary element of the offense of home invasion.3

         As the majority noted, the two-prong test set forth in Strickland v. Washington,
466 U.S. 668 (1984), governs our analysis. It is well-established that “[c]ounsel has a
duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 691. The duty to
investigate derives from counsel’s basic function, which is “‘to make the adversarial
testing process work in the particular case.’” Kimmelman v. Morrison, 477 U.S. 365,
384 (1986) (quoting Strickland, 466 U.S. at 690). “The relevant question is not whether
counsel’s choices were strategic, but whether they were reasonable.”                                Roe v.
Flores-Ortega, 528 U.S. 470, 481 (2000). A purportedly strategic decision is not
objectively reasonable “when the attorney has failed to investigate his options and make
a reasonable choice between them.” Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000)
(citing Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991)).

         Courts have not hesitated to find constitutionally ineffective assistance when
counsel fails to conduct a reasonable investigation into one or more aspects of the case
and when that failure prejudices his or her client.4 Guilmette’s trial counsel’s failure to
conduct a reasonable investigation into the facts surrounding the photographs of the
footprints that the state introduced into evidence similarly violated his Sixth Amendment



         3
          To prove home invasion, the prosecution must show beyond a reasonable doubt that the accused
entered into the home. MICH. COMP. LAWS § 750.110a(2).
         4
           See, e.g., Wiggins v. Smith, 539 U.S. 510, 524-29 (2003) (holding that the petitioner was entitled
to a writ of habeas corpus because his counsel had failed to conduct a reasonable investigation into
potentially mitigating evidence with respect to sentencing because “counsel chose to abandon their
investigation at an unreasonable juncture, making a fully informed decision with respect to sentence
strategy impossible.”); Towns v. Smith, 395 F.3d 251, 258-260 (6th Cir. 2005) (holding that it was
ineffective assistance of counsel for defense counsel not to call a witness who could have created an
alternative theory of the case); Combs, 205 F.3d at 287-88 (holding that defense counsel was
constitutionally ineffective for failing to investigate adequately his own expert witness, who testified that,
despite the defendant’s intoxication at the time of the crime, the defendant nevertheless was capable of
forming the requisite intent to commit the crimes); Sims v. Livesay, 970 F.2d 1575, 1580-81 (6th Cir. 1992)
(holding that counsel was constitutionally ineffective for failing to conduct an investigation into certain
physical evidence that would have undermined the prosecution's theory that the victim was shot at a
distance).
No. 08-2256        Guilmette v. Howes                                           Page 15


right to effective assistance of counsel. Guilmette has thus successfully satisfied both
the deficiency and prejudice prongs of Strickland.

       With regard to the deficiency prong, the facts demonstrate that counsel did not
investigate the facts surrounding the footprints. These photos were the only evidence
presented of entry, a necessary element to the charge of home invasion.            Joan
McCormick, the only eyewitness, did not see the perpetrator enter the house though she
looked after she tripped and saw the perpetrator “running off the porch.”           Her
testimony—nearly the only evidence presented outside of the two, different footprints
of the alleged home invasion—supports an alternate theory that the perpetrator broke
down the door and ran away without entering the home and that the footprint found on
the threshold was created by someone else after the perpetrator had fled. When State
Trooper Jennifer Coulter arrived, she observed footprints in the snow on the walkway
and avoided them, thinking that they had been left by the perpetrator. She photographed
the clearest print that she could find and that photograph, along with expert testimony
about the footprint, was introduced into evidence as the footprint of the perpetrator of
the offense. But, importantly, this photo was not proof of entrance by the perpetrator,
merely proof that someone had stepped on the walkway.

       It was not until after Trooper Coulter left that McCormick took a photograph of
a snowy footprint on the threshold of her front entrance; this photograph was the only
evidence at trial to purport to show that the perpetrator had entered the home.
Guilmette’s trial counsel never even looked to see if the two photographed footprints
were the same, or even similar.      Guilmette’s current attorney contends that the
photographs do not correspond to one another and that even a cursory investigation into
the photographs would have revealed this discrepancy. Additionally, Guilmette’s trial
counsel should have been on notice that he should compare the two photographs based
on the fact that the second was taken by McCormick after Trooper Coulter had left and
it could have been Trooper Coulter’s footprint rather than the perpetrator’s. That
decision not to compare the photographs was objectively unreasonable because it “was
a decision made without undertaking a full investigation” into whether a comparison of
No. 08-2256             Guilmette v. Howes                                                          Page 16


the photographs could assist in Guilmette’s defense. Combs, 205 F.3d at 288. By failing
even to compare the two, readily available photographs, Guilmette’s counsel “abandoned
his investigation at an unreasonable juncture, making a fully informed decision with
respect to [whether such an investigation was] impossible.” Wiggins, 539 U.S. at
527-28. Counsel should have hired an expert to examine the prints, see Richey v.
Bradshaw, 498 F.3d 344, 363-64 (6th Cir. 2007) (finding that an expert was necessary
to make an informed decision about trial strategy), and should have, at the very least,
cross-examined the prosecution’s footprint expert regarding the discrepancy. Trial
counsel should have made an argument to the jury or the court about the discrepancy.
Instead, trial counsel focused only on the state’s identification of Guilmette as the
perpetrator to the exclusion of all other viable arguments. This was not a strategic
decision because a strategic decision necessarily involves an informed choice between
two alternatives. Here, counsel was completely ignorant as to one of these alternatives
due to his failure to reasonably investigate, or indeed, to investigate at all, an obvious
evidentiary problem and defense to a required element of the charge. This constitutes
a deficiency of counsel, satisfying the first Strickland prong.

         With regard to Strickland’s prejudice prong, the record contains ample evidence
indicating that, but for counsel’s ineffectiveness, there is a reasonable probability that
Guilmette would have been acquitted. Entry is an essential element of the charge of
home invasion and the only evidence of entry was the threshold footprint photograph
that McCormick took after Trooper Coulter had left her home.5 Thus, there is a

         5
           The majority asserts that the jury could have found entry even without the footprint in the
doorway because kicking in a door without entering is “impossible” (supra at 9), as opposed to, apparently,
using a crowbar to force open a door. It is unclear on what basis this assertion is made. It certainly is not
based on anything in the record, so perhaps it is based on some heretofore unrecognized species of judicial
notice based on my colleagues’ extensive experience in kicking in doors. I unfortunately cannot comment
on the veracity of their observation, having not had the opportunity to kick in a statistically sufficient set
of doors in my lifetime.
          If I were to take notice of information outside of the record, I would look to Sir Isaac Newton’s
Laws of Motion, with which I am marginally familiar from high school physics. If I recall correctly,
according to Newton’s First Law, an object in motion tends to stay in motion. This provides some support
for the majority’s reasoning that when a person kicks his leg at a door and the door gives way, that
person’s momentum should continue in the direction of the kick, necessarily causing his foot to cross the
plane of the doorway. However, this Law has an important caveat: an object in motion tends to stay in
motion unless acted upon by an external force. Similarly, under Newton’s Third Law, for every action
there is an equal and opposite reaction. As applied here, when a person kicks a door, the door sends an
equal force in the opposite direction up the leg of the kicker, acting as the “external force” provided for
in the First Law. Thus, the kicker could essentially bounce back due to the reverse force on his body so
No. 08-2256            Guilmette v. Howes                                                         Page 17


reasonable probability that, had the jury heard an expert challenge the match of the two
footprints, or even heard Guilmette’s counsel cross-examine the prosecution’s expert
witness on the discrepancies between the photographs, the jury would have acquitted
Guilmette.

         Guilmette’s claim of prejudice is further supported by the weakness of the
prosecution’s case. The Supreme Court has explained that “a verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than one
with overwhelming record support.” Strickland, 466 U.S. at 696; Clinkscale v. Carter,
375 F.3d 430, 445 (6th Cir. 2004). McCormick’s eyewitness identification of Guilmette,
the only solid evidence linking Guilmette to the crime, was weak and tentative,
especially at trial. We have repeatedly expressed our “‘grave reservations concerning
the reliability of eyewitness testimony.’”               Clinkscale, 375 F.3d at 445 (quoting
Blackburn v. Foltz, 828 F.2d 1177, 1186 (6th Cir. 1987)). In light of the scant evidence
of Guilmette’s guilt, his counsel’s ineffectiveness was even more prejudicial that it could
otherwise have been.

         Thus, I respectfully dissent.




that no part of him would cross the threshold, rather than falling forward through the door, as the majority
suggests is a physical, and legal, certainty.
         However, just as I have no basis from which to judge the majority’s assertion because I have little
experience in kicking in doors, I have no real basis to rely on my understanding of the physics at issue
because I am a judge, not a physicist. Thus, I look solely to the evidence in the record in making my legal
determinations: the circumstances regarding the disputed picture of the footprint on the threshold.
