                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0545n.06
                            Filed: September 5, 2008

                                              No. 07-3527

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


TIERRE R. MANLEY,                                           )         ON APPEAL FROM THE
                                                            )         UNITED STATES DISTRICT
        Petitioner-Appellee,                                )         COURT FOR THE NORTHERN
                                                            )         DISTRICT OF OHIO
v.                                                          )
                                                            )                             OPINION
ROSS CORRECTIONAL INSTITUTION, Warden,

        Respondent-Appellant.



BEFORE:         COLE and CLAY, Circuit Judges; and RUSSELL, District Judge.*

        COLE, Circuit Judge. Respondent-Appellant, Warden of the Ross Correctional Institution,

appeals a judgment conditionally granting a writ of habeas corpus to Petitioner-Appellee Tierre

Manley. Following a jury trial, an Ohio state court convicted Manley of murder with a firearms

specification. An Ohio appellate court affirmed Manley’s conviction and sentence, following which

the Ohio Supreme Court denied review. Upon filing a petition for habeas relief, the district court

concluded that Manley received ineffective assistance of counsel under the Sixth Amendment,

finding that defense counsel acted deficiently and prejudiced Manley’s theory of self-defense by (1)

calling a police detective as a witness for the defense and (2) eliciting and failing to object to certain

details about Manley’s juvenile convictions.          Accordingly, pursuant to the dictates of the


        *
        The Honorable Thomas B. Russell, United States District Judge for the Western District
of Kentucky, sitting by designation.
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), the district court

concluded that the state appellate court unreasonably applied clearly established federal law in

rejecting Manley’s claim of ineffective assistance of counsel and issued Manley a conditional writ

of habeas corpus. For the reasons set forth below, we REVERSE the decision of the district court.



                                       I. BACKGROUND

       The state appellate court summarized the offense giving rise to Manley’s conviction as

follows, and, on appeal, both parties accept this version of the facts as undisputed:

               In the early morning hours of June 2, 2001, [Manley] shot Stephen Glover
       several times. On June 3, 2001, Mr. Glover died as a result of the injuries he
       sustained from that incident. The shooting was apparently the result of a conflict that
       arose between Mr. Glover and [Manley] on the night of June 1, 2001 while the two
       were playing pool at a local bar, Club Utopia. According to [Manley], he and Mr.
       Glover made a thirty dollar bet on a round of pool but, when he lost, Mr. Glover paid
       [Manley] only twenty dollars. At that point, an altercation ensued between the
       parties, which began inside the bar and continued outside. According to defense
       witnesses, after the initial scuffle inside the establishment, the victim and several of
       his friends waited outside and attacked [Manley] as he left the bar.

               The parties then proceeded to a birthday party at the Fraternal Order of Police
       Hall, where yet another fight broke out between them. Although there is conflicting
       testimony as to who started the altercation, several witnesses, including the
       defendant, alleged that the victim caught the defendant off guard, hitting him in the
       face with a beer bottle. Eventually, due to another fight at the same location, the
       police arrived on the scene and sent the party-goers home. According to [Manley],
       his cousin drove him to his mother’s house so that he could nurse the injuries he
       received during the fights.

                [Manley] claims that he decided to go from his mother’s house to his
       girlfriend’s house, and that his cousin set out to drive him there. On the way, the two
       passed by the intersection of Elm Street and Nye Street, near which Mr. Glover and
       his friends were congregated. By the defendant’s version of the events, [Manley] and
       his cousin stopped their vehicle because someone called out [Manley’s] name.
       Thereafter, both [Manley] and his cousin exited the vehicle and the appellant talked

                                                -2-
       to Mr. Glover. At this point, another fight commenced. At trial, Mr. Manley claimed
       that Mr. Glover pulled a gun during the fight and that, simultaneously, a third person,
       George Elliot, began shooting. [Manley] claims that he wrestled the gun from Mr.
       Glover and began to fire, then tossed the gun into the street and fled in his vehicle.

              Witnesses for the state, on the other hand, testified that the appellant and his
       cousin pulled up to the corner of Elm and Nye and remained in their vehicle. Mr.
       Glover then proceeded to the passenger side of the vehicle and spoke to [Manley],
       apparently in an effort to end the dispute. While still seated in the vehicle, [Manley]
       produced a gun and shot Mr. Glover in the head and then fired three or four
       additional shots at the victim as he lay in the street. The victim was taken to St.
       Rita’s Medical Center, where he died the next day.

State v. Manley, No. 1-01-159, 2002 WL 31323328, at *1 (Ohio Ct. App., Oct. 18, 2002).

       In response to the preceding events, the state of Ohio indicted Manley on one count of

aggravated murder and one count of murder. The state subsequently dismissed the murder charge.

A trial was then held in the Allen County Court of Common Pleas on November 1, 2001. During

the course of testimony at trial, it was established that the altercation arose out of an allegedly

unsatisfied pool hall debt. Manley and Glover placed a thirty dollar bet on the outcome of a billiards

game, which Manley ultimately won. When Manley sought to collect his payment from Glover, he

claimed that Glover only paid him twenty dollars. When Manley questioned Glover about the

additional ten dollars, he insisted that Glover refused to pay. Thereafter, both Manley and his friends

and Glover and his friends proceeded to a party at the Fraternal Order of Police Hall. Manley

testified that as soon as he entered the building, Glover hit him on his eye with a beer bottle, causing

his eye to swell. Due to the onset of a second fight, the police arrived and shut the party down. The

two groups then proceeded to the intersection of Nye and Elm streets, a common after-hours

gathering spot, where the shooting took place later that evening.



                                                 -3-
       During the state’s case-in-chief, the prosecution called three eyewitnesses, namely Jamie

Wilson, Titus Brown, and Ronald Dillingham, to testify about their version of the facts. All three

witnesses testified that Manley remained in his truck throughout the altercation, was armed from the

onset of the confrontation, and delivered the fatal gunshots to Glover from the inside of his truck.

Moreover, Dillingham testified that he observed Glover raise his hand in defense as Manley aimed

his gun at Glover and shot him from his truck.

       In response, Manley’s strategy at trial hinged on depicting the shooting of Glover as either

an act of self-defense or as a response to provocation by Glover. Under both of these theories,

Manley’s credibility was central, as both theories depended on “Manley’s claims that he got out of

his truck to speak to Glover in the street, that only the decedent was armed at the time of this

confrontation, that others were shooting at Manley during this episode, and that during this struggle

Manley acquired the gun from which he fired the fatal shot.” (Joint Appendix (“JA”) 1256-57.)

       To support Manley’s version of the events, Manley’s trial counsel called Lima Police

Detective Paul Guidera as a defense witness and solicited testimony on direct examination about

interviews he conducted with three purported witnesses to the shooting, namely Jamie Wilson, Titus

Brown, and Tierre Scales.1 Of these three individuals, Wilson and Brown testified at trial for the

prosecution; neither the prosecution nor defense called Scales as a witness. Guidera further testified

that Wilson, Brown, and Scales told him that Manley was the only person at the scene in possession

of a gun, that Manley never exited his truck, that the bullet which killed Glover emerged from inside


       1
         Indeed, the prosecutor noted the atypical nature of defense counsel’s decision to call Guidera
as a witness when he stated, “Detective, I have the rare opportunity to cross examine a police
officer.” (JA 894.)

                                                 -4-
Manley’s truck, and that subsequent shots were fired from inside the truck as Manley fled the scene

in it.

         In addition to calling Detective Guidera, Manley’s trial counsel called Manley as a witness

and questioned him about his juvenile criminal record. Specifically, Manley’s counsel elicited

testimony that, at the age of sixteen, Manley committed two aggravated assaults, for which he was

incarcerated until just before his twenty-fifth birthday. Manley’s attorney also questioned two other

defense witnesses, Joe Pea, a boyfriend of Manley’s mother, and Andre Manley, Manley’s second

cousin, about Manley’s convictions as a juvenile.

         The jury found Manley not guilty of aggravated murder but guilty of the lesser-included

offense of murder. At sentencing, Manley received a term of fifteen years to life on the murder

conviction, plus an additional three years on a firearms specification.

         Employing new counsel, Manley directly appealed his conviction and sentence to the state

court of appeals. The court of appeals affirmed both convictions and the sentence. Thereafter,

Manley sought review by the Ohio Supreme Court, which dismissed the appeal because it presented

no substantial questions of constitutional law.

         Manley next filed a petition for a writ of habeas corpus in federal district court setting forth

three grounds for relief: (1) the trial court’s failure to instruct the jury on voluntary manslaughter

amounted to a denial of his right to due process and a fair trial; (2) he was denied his rights under

the Sixth and Fourteenth Amendments due to the ineffective assistance rendered by his trial counsel;

and (3) he was denied his right to due process and a fair trial when the state proffered evidence of

his juvenile convictions.


                                                  -5-
       The parties consented to the jurisdiction of Magistrate Judge William H. Baughman, Jr., who,

without a hearing, issued a memorandum opinion and order granting Manley a conditional writ of

habeas corpus on his Sixth Amendment claim of ineffective assistance of counsel. Marshaling the

two-pronged test for ineffective assistance of counsel as articulated in Strickland v. Washington, 466

U.S. 668 (1984), and this Court in Higgins v. Renico, 470 F.3d 624 (6th Cir. 2006), the court focused

its analysis on whether, under AEDPA, the state court of appeals unreasonably applied the Strickland

test to the facts of Manley’s case.

       First, the court addressed the deficiency prong of the Strickland test. While noting that

“federal law is plain that defense counsel is entitled to a strong presumption of having rendered

reasonable professional service,” the court concluded that Manley’s trial counsel did not merit such

a presumption. (JA 1263.) Specifically, in the court’s estimation, “Manley’s counsel should have

known through his own investigation of Detective Guidera’s role in the case and a basic familiarity

with the witness list that the detective had personally interviewed three purported witnesses who

would not themselves testify at Manley’s trial and whose story would, if heard by the jury, directly

contradict his client’s.” (JA 1264.) The court characterized as “inexcusable” Manley’s attorney’s

decision to place Guidera on the stand and “then, through him, intentionally bring[] before the jury

the stories of three uncalled, unsworn, uncross-examined witnesses in direct contradiction to his own

client’s testimony.” (Id.)

       Similarly, the court took issue with defense counsel’s decision to bring to light Manley’s

juvenile convictions. Although agreeing with the state appeals court that it is a common defense

tactic to inform the jury of any prior record before the prosecution does so, the court found


                                                -6-
unreasonable the extent to which Manley’s counsel elicited details about his prior convictions.

       Upon finding multiple examples of deficient performance, the court concluded that defense

counsel’s performance was prejudicial because his “errors directly undercut Manley’s credibility.”

(JA 1266.) Despite the number of eyewitnesses available to the prosecution, the court emphasized

their suspect credibility, as they were all friends of Glover and members of a gang called the

Westside Boys known for selling drugs. In the court’s view, “[w]eighing [these witnesses’]

testimony that Manley was the sole, unprovoked shooter against Manley’s defense, a reviewing court

cannot be confident that a jury would believe these witnesses in the absence of the damage to

Manley’s credibility.” (Id.)

       Based on the foregoing, the court concluded that there was a “‘reasonable probability’ that,

but for defense counsel’s errors, the verdict reached here would have been different.” (Id.)

Accordingly, the court granted Manley a conditional writ of habeas corpus relief on his claim of

ineffective assistance of counsel. The Warden timely appealed.

                                          II. ANALYSIS

A.     Standard of Review

        We employ a de novo standard to review the district court’s legal conclusions in habeas

proceedings. Dennis v. Mitchell, 354 F.3d 511, 516-17 (6th Cir. 2003). We generally review the

district court’s factual findings under a clear-error standard. Id. at 517.

       Because Manley filed his habeas corpus petition on June 8, 2004, after AEDPA became

effective on April 24, 1996, AEDPA governs our review of the decisions of the Ohio trial and




                                                 -7-
appellate courts. See Lindh v. Murphy, 521 U.S. 320, 323 (1997) (holding AEDPA applicable to

petition filed after AEDPA’s effective date).

       In AEDPA, Congress provided that:

       (d) an application for a writ of habeas corpus on behalf of a person in custody
       pursuant to the judgment of a State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State court proceedings unless the
       adjudication of the claim--
       (1) 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; or
       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254 (d)(1)-(2)

       On appeal, Manley claims entitlement to relief under § 2254 (d)(1)’s “unreasonable

application” clause. Within the context of this clause, the Supreme Court has interpreted “clearly

established Federal law” to encompass only its “holdings, as opposed to the dicta” in its opinions.

Keith v. Mitchell, 455 F.3d 662, 669 (6th Cir. 2006) (quoting Williams, 529 U.S. 362, 412 (2000)).

Under the “unreasonable application” clause, habeas relief is available if “the state court identifies

the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Dennis, 354 F.3d at 517 (citing Williams, 529 U.S.

at 413).

       Relief is further warranted under § 2254 (d)(1) when a “state court decision either

unreasonably extends or unreasonably refuses to extend a legal principle from the Supreme Court

precedent to a new context.” Keith, 455 F.3d at 669. In both situations, the central inquiry is

“whether the state court decision was objectively unreasonable and not simply erroneous or


                                                 -8-
incorrect.” Id. That is, in applying the “unreasonable application” clause, we must be careful not to

substitute our own judgment for that of the state court by equating the more stringent standard of

“objectively unreasonable” with the more lax standard of “clear error.” See Lockyer v. Andrade, 538

U.S. 63, 75 (2003); Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

B.     Ineffective Assistance of Counsel

       Drawing on the standard articulated in AEDPA, our task is to determine whether the Ohio

appellate court’s denial of Manley’s claim of ineffective assistance of counsel was contrary to, or

an unreasonable application of, clearly established federal law. Our analysis leads us to answer this

question in the negative.

       In raising his ineffective assistance claim, Manley cites two allegedly unreasonable and

prejudicial maneuvers made by his defense counsel. First, Manley argues that his trial attorney acted

deficiently in calling Detective Guidera as a witness and introducing hearsay statements about

Guidera’s conversations with several eyewitnesses to the shooting. Second, Manley challenges his

counsel’s decision to delve into significant details about his juvenile convictions and his failure to

object to the prosecution’s inquiry into his prior record. In determining whether the state court

unreasonably applied clearly established federal law, Strickland v. Washington, 466 U.S. 668 (1984),

is the relevant starting point for our AEDPA analysis.

       In Strickland, the Supreme Court fashioned a two-prong test that a defendant must satisfy to

establish a Sixth Amendment violation: (1)“the defendant must show that counsel's performance was

deficient,” and (2) “the defendant must show that the deficient performance prejudiced the defense.”

Id. at 687. To establish deficient performance under the first prong, Manley “must show that [his]


                                                -9-
counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. In

determining what is reasonable, our scrutiny of counsel’s performance must be highly deferential:

that is, we “must indulge a strong presumption that counsel’s conduct falls within a wide range of

reasonable professional assistance . . . [and] that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689 (internal citations omitted).

        To demonstrate prejudice under the second prong, Manley “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. In determining whether there was prejudice, we “must

consider the totality of the evidence before the judge or jury.” Id. at 695.

        1.      Deficient Performance2

                        a.      Introduction of Manley’s Prior Crimes

        As his first charge of deficient performance, Manley points to his attorney’s extensive inquiry

into his prior criminal record and his failure to object to the prosecution’s similar line of questioning.

We are of the view that defense counsel’s decision to probe into Manley’s criminal history does not

qualify as unreasonable professional conduct. The subject of Manley’s criminal history arose three

times during the course of the trial. One of the initial questions Manley’s defense counsel asked

Manley was about his criminal history:


        2
        Given our ultimate finding that trial counsel’s performance did not prejudice Manley’s
defense, we note that we could proceed without discussing deficient performance. See Strickland,
466 U.S. at 697 (explaining that “[i]f it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice . . . that course should be followed”). Nevertheless, we choose to
examine both components of the two-pronged test.

                                                  - 10 -
        Q: At what age did you run into bad trouble?
        A: Right before I turned sixteen . . . .
        Q: Earlier than age sixteen were you in trouble in juvenile court?
        A: I think I had one incident, yes.
        Q: Okay. What were the felony charges that you had at age sixteen?
        A: Two aggravated assaults.
        Q: All right. And there was some testimony this morning – what were they about?
        A: Basically I was running with the wrong crowd at that time and got caught up.
        Q: Okay. Somebody get shot then?
        A: Yes, two individuals.
        Q: And what were their names?
        A: Kelly Shurelds and Napoleon Shurelds.
        Q: All right. So am I correct, you then spent from age sixteen until when in our penal
        system here in the state of Ohio, til what age?
        A: I got out four days before I turned twenty-five.

(JA 1057-58.)

        On cross-examination, the prosecution inquired further into the details of Manley’s criminal

record. Specifically, the prosecutor asked Manley whether, similar to the injury in the instant case,

Manley shot one of the victims in the back. The prosecutor also asked Manley if the weapon

involved in his prior crimes was a .45 caliber pistol, the same type of weapon involved in the instant

shooting.

        Later in the trial, defense counsel questioned Joe Pea about his knowledge of Manley’s prior

convictions. Pea stated that Manley was involved in a shooting incident when he was sixteen, for

which was incarcerated for seven to eight years. On cross-examination, Pea answered affirmatively

when the prosecutor asked whether Manley’s juvenile record involved him shooting two people. Pea

further confirmed that, at the time of trial, Manley had only been out of prison for a little over a year.

        The subject of Manley’s criminal history arose a third time when Andre Manley testified as

a witness for the defense. On cross-examination, Andre responded affirmatively when the prosecutor


                                                  - 11 -
asked him whether Manley’s prior conviction involved him shooting a man in the back twice and

shooting another person. Defense counsel objected to both questions, but these were the only

objections on record to the prosecutor’s inquiry into the details of Manley’s criminal history.

       In its opinion, the district court noted that having the defendant bring to light past convictions

was a common trial tactic but took issue with the level of detail to which the jury became privy as

a result of this testimony. According to the court, defense counsel acted deficiently by both adducing

and failing to object to the prosecutor adducing information about the type of weapon used in the

prior shooting, the same caliber handgun used in Glover’s killing.

       We disagree. Notwithstanding the unfavorable nature of the information elicited about his

prior crimes and the similarities with respect to the instant crime—both shootings and both involving

the same type of weapon—the rules of evidence permitted the prosecutor to inquire into such details.

The evidence of Manley’s criminal history was admissible pursuant to Ohio Rule of Evidence

404(B). This rule provides in pertinent part:

       [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident, provided
       that upon request by the accused, the prosecution in a criminal case shall provide
       reasonable notice in advance of trial, or during trial if the court excuses pretrial notice
       on good cause shown, of the general nature of any such evidence it intends to
       introduce at trial.

Ohio R. Evid. 404(B). As the trial judge explained in overruling defense counsel’s objection to the

testimony about the similarity of the weapon Manley used in his prior convictions and the weapon

used in the instant shooting, this evidence is arguably admissible to show absence of mistake.

Admittedly, the fact that the prior incidents occurred nine years ago, when Manley was only sixteen,

                                                 - 12 -
weakens their probative value with respect to absence of mistake. Nevertheless, it does not rise to

the level of constitutional deficiency for the defense counsel to have introduced this evidence.

               b.      Decision to Call Detective Guidera as a Defense Witness

       While Manley’s first charge of ineffective assistance is unavailing, his second charge stands

apart. We are of the view that defense counsel’s decision to call Guidera as a witness constituted

deficient performance under Strickland because it bolstered the testimony provided by witnesses for

the prosecution and relayed to the jury additional testimony corroborating the prosecution’s version

of the facts. Upon calling Guidera as a witness, Manley’s attorney proceeded to question Guidera

about his interviews with several eyewitnesses to the shooting. Three of the individuals referred to

by Guidera—Jamie Wilson, Titus Brown, and Ron Dillingham—all appeared at trial as witnesses

for the prosecution. Defense counsel, however, also questioned Guidera about his interviews with

several other eyewitnesses who did not testify, including Tierre Scales, Gary Jackson, and Aaron

Porter. Likewise, defense counsel also inquired about “any other individuals who you may have

talked to that I haven’t asked you about.” (JA 887, 889.) Guidera never testified to the size or

makeup of this group of unnamed, other witnesses.

       In specific, Manley’s attorney commenced his direct examination of Guidera by questioning

him about his conversations with Wilson. Guidera admitted that Wilson had provided two

inconsistent accounts of the events leading up to the shooting. When Wilson first talked to Guidera

at the hospital after Glover arrived for treatment, Wilson omitted a key detail, namely that he was

present at the scene of the shooting. During their second conversation, however, Wilson admitted

to observing the shooting directly. Although the record is unclear as to why Manley’s attorney was


                                               - 13 -
unable to impeach Wilson on cross-examination during the prosecution’s case-in-chief, presumably

the strategy behind this line of questioning was to cast Wilson as unreliable and undermine his

credibility as a witness for the prosecution by pointing out the two conflicting stories he provided

to authorities.

        The mere fact that defense counsel conducted this series of questions with a strategy in mind,

however, does not end the analysis. We “cannot stop there, for we must also assess if this strategy

was itself constitutionally deficient.” Washington v. Hofbauer, 228 F.3d 689, 704 (6th Cir. 2000).

As this Court has previously recognized, “the label ‘strategy’ is not a blanket justification for

conduct which otherwise amounts to ineffective assistance of counsel.” Lovett v. Foltz, 884 F.2d

579, at *4 (per curiam) (unpublished). “[E]ven deliberate trial tactics may constitute ineffective

assistance of counsel if they fall ‘outside the wide range of professionally competent assistance.’”

Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984) (internal citation omitted).

        While challenging Wilson’s credibility as a witness was admittedly sound trial strategy,

which, as we have noted, presumably could have been accomplished fully on cross-examination,

defense counsel’s subsequent questioning of Guidera when he called him as a defense witness

exceeded any constitutionally protected strategy. Specifically, defense counsel’s direct examination

proved particularly damaging because he prompted Guidera to testify about the alleged statements

of several eyewitnesses who corroborated the prosecution’s version of the shooting. For example,

defense counsel inquired about Guidera’s conversations with Titus Brown, who had also testified

previously as a witness for the prosecution. Guidera recalled what Brown had told him about the

shooting:


                                                - 14 -
       He stated that a black pickup truck that he knows as owned by . . . Manley come
       driving up. He said he saw . . . Manley in the passenger side, the window down . .
       . He saw Steve Glover walk up to the truck; start having a conversation with . . .
       Manley. He said the conversation basically consisted of Steve was wanting to end
       any kind of problems that they were having. He wanted to settle any kind of
       disputes. While they were just talking at that time Tierre Manley pulled out a gun
       and shot him, shot Steve.

(JA 882-83.) This recounting of events stands in direct contradiction to Manley’s version of the

facts, because it suggests that Manley never exited his truck and instead delivered the fatal bullets

from the inside of his vehicle. Thus, this testimony ultimately corroborates the prosecution’s version

of the facts. Notwithstanding the fact that the jury already heard this testimony directly from the

mouth of Brown earlier in the trial when Brown was called as a prosecution witness, the effect of

Guidera’s repetition was to bolster the credibility of a state witness and call into question Manley’s

own characterization of the facts.

       After questioning Guidera about his conversation with Brown, defense counsel questioned

Guidera about statements made by “any other individuals who you may have talked to that I haven’t

asked you about,” including Tierre Scales, Gary Jackson, and Aaron Porter whom the prosecution

did not call as witnesses. (JA 887.) For example, defense counsel asked Guidera whether, according

to all the eyewitnesses with whom he spoke, “[Manley is] the only one they saw having a gun,” to

which Guidera responded affirmatively. (Id.) Likewise, Guidera testified that all the eyewitnesses

with whom he spoke stated “after Steven Glover was shot[,] he fell to the ground . . . Manley was

in his pickup truck[,] and it took off. As it was taking off down the road several people said that they

heard other gunshots farther down the road.” (JA 887-88.)




                                                 - 15 -
        These statements undercut Manley’s version of the events, that Manley exited his truck and

was confronted by Glover and Elliott who were armed with handguns. Instead, these statements

confirmed earlier testimony that Manley remained in his truck throughout the shooting and fired the

gun that killed Glover. While the jury heard similar testimony during the prosecution’s case-in-

chief, Guidera’s testimony was damaging because it represented the collective recollections of an

unknown number of individuals he interviewed while investigating the case. Thus, the result of

Guidera’s testimony was to bolster the prosecution’s version of the shooting. See Combs v. Coyle,

205 F.3d 269, 288-91 (6th Cir. 2000) (explaining that defense counsel acted deficiently because his

inquiry of an expert witness “directly contradicted the sole defense theory that [the defendant] lacked

the requisite intent to commit murder” and because his “two critical errors . . . bolstered the State’s

case and made [the defendant’s] explanation of the events seem less likely”)

        Moreover, by calling Guidera as a witness, defense counsel paved the way for the prosecution

to elicit similarly injurious testimony on cross-examination and failed to object on numerous

occasions to seemingly objectionable questions asked by the prosecution. For instance, the

prosecution questioned Guidera about his interview with Gary Jackson, an eyewitness to the shooting

who did not testify at trial. Specifically, the prosecutor inquired of Guidera, “did [Jackson] tell you

he saw who was shooting?” (JA 896.) Guidera replied, “he stated the shots were coming from the

pickup truck.” (Id.) This testimony had a particularly deleterious influence on Manley’s case

because Guidera identified Jackson as a “good acquaintance” of Manley. (JA 610.) As a friend of

Manley, Jackson’s account of the events was therefore likely to carry considerable weight with the

jury because he would be less likely to corroborate the prosecution’s version of the events if not true.


                                                 - 16 -
       Similarly, the prosecution asked Guidera if, based on all the interviews he conducted with

eyewitnesses, whether he received “any statements that said that [Manley] ever got out of the truck?”

Guidera responded, “no.” (JA 897.) The prosecution continued, “did you get any statements at all

from anybody that said that Steven Glover had a gun?” Guidera again replied in the negative. Thus,

in addition to multiplying the number of witnesses against his own client, defense counsel, through

his botched examination of Guidera, allowed the prosecution to do the same.

       That defense counsel acted deficiently in his examination of Guidera is further underscored

by an analogous decision of this Court in Combs v. Coyle, 205 F.3d at 269. In that case, an attorney

for a capital defendant elected to call an expert witness during the culpability phase of the trial to

demonstrate that the defendant lacked the requisite mental state for conviction. Combs, 205 F.3d

at 287. On cross-examination, the expert testified that, in his opinion, although the defendant was

intoxicated on the day of the events, he nevertheless acted intentionally and purposefully. Id. This

Court reviewed the defendant’s claim of ineffective assistance of counsel as part of the defendant’s

habeas petition and concluded that “[a]lthough Combs’s counsel’s decision to present [the expert’s]

testimony may be considered a strategic one, it was a decision made without undertaking a full

investigation.” Id. at 288. The Court further opined,

       [the expert’s] opinion regarding whether Combs lacked the requisite intent to commit
       the crimes was crucial to the defense theory; defense counsel’s failure to have
       questioned Fisher in this regard prior to trial is inexcusable. Defense counsel should
       have known Fisher’s opinion on this ultimate issue and should have prepared
       accordingly.

Id. Thus, the Court ultimately determined that “[r]egardless of whether [the defendant’s] counsel

should have known or instead actually knew [the expert’s] opinion regarding [the defendant’s] intent


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. . . counsel’s decision to put him on the stand was objectively unreasonable” under Strickland. Id.

       As in Combs, the decision by Manley’s lawyer to call Guidera as a witness was objectively

unreasonable.    Guidera’s testimony about the countless eyewitnesses who corroborated the

prosecution’s version of the facts suggests that defense counsel decided to call Guidera as a witness

“without undertaking a full investigation.” See id. Just as the defense attorney in Combs should

have known the expert witness’s actual opinion about the defendant’s mental state, Manley’s lawyer

should have known that Guidera would testify that the countless individuals he interviewed “had the

same conclusion” that Manley remained in his truck and that the bullets emanated from a gun

possessed by Manley. (JA 898.) Defense counsel had a “duty to make reasonable investigations or

to make a reasonable decision that makes particular investigations unnecessary[,]” Strickland, 466

U.S. at 691, and thus his “failure to have questioned [Guidera] in this regard prior to trial is

inexcusable.” Combs, 205 F.3d at 288. Coupled with defense counsel’s failure to object to

seemingly objectionable questions asked by the prosecutor during his cross-examination of Guidera,

we are of the view that Manley’s attorney exhibited deficient lawyering.



2.     Prejudice

       Notwithstanding the fact that Manley’s attorney acted deficiently in conducting his

questioning of Detective Guidera, we conclude that, against the overwhelming evidence of guilt, his

substandard performance did not prejudice Manley’s case. See Strickland, 466 U.S. at 696 (stating

that a verdict only weakly supported by the record is more likely to have been affected by errors than

one with overwhelming support); see also Poindexter v. Mitchell, 454 F.3d 564, 582 (6th Cir. 2006)


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(concluding that “[p]etitioner’s defense was not prejudiced” because “[t]he evidence that Petitioner

Poindexter killed Kevin Flanaghan was overwhelming”); Hicks v. Collins, 384 F.3d 204, 215 (6th

Cir. 2006) (establishing that petitioner was not denied the effective assistance of counsel because

“there was overwhelming evidence of . . . guilt” which precluded petitioner from “demonstrat[ing]

that there is a reasonable probability that, but for counsel’s errors, the factfinder would have

reasonable doubt about his guilt” (internal citations and quotations omitted)); U.S. v. Bavers, 787

F.2d 1022, 1030 (6th Cir. 1985) (finding that “counsel’s performance was not shown to have resulted

in deprivation of an essentially fair trial especially in light of overwhelming proof” of defendant’s

guilt).

          First, the medical evidence presented by the prosecution corroborated the eyewitness

accounts presented by the prosecution. See Watson v. Marshall, 784 F.2d 722, 726 (6th Cir. 1985)

(holding that defendant could not satisfy the Strickland test “because of [his] failure to establish

prejudice, particularly in light of the medical evidence produced at trial in this case”). Specifically,

the prosecution called as a witness Dr. Beisser, Deputy Coroner of Lucas County, who performed

the autopsy of Glover and who testified that Glover suffered from several defensive wounds,

including a bullet wound through his right hand, a bullet entrance wound through his right temple,

and a bullet exit wound on the left side of his hand. She further testified that there was no gunshot

residue on the body, suggesting that Glover was at least twelve inches from his assailant. Her

testimony regarding the path of the bullet was entirely consistent with Dillingham’s testimony that

Glover raised his hand in defense as Manley delivered a bullet from the inside of his truck. See

Mapes v. Coyle, 171 F.3d 408, 425 (6th Cir. 1999) (concluding that a defendant was unable to


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establish prejudice under Strickland because “he was identified by eyewitnesses as the person who

shot Allen, and corroborating evidence was admitted indicating he was the shooter”).

       Beyond this forensic evidence, Wilson, Brown, and Dillingham, all eyewitnesses for the

prosecution, testified that Manley never exited the truck and was the only individual armed at the

scene of the shooting. See Campbell v. U.S., 364 F.3d 727, 736 (6th Cir. 2004) (holding that

petitioner did not succeed on his ineffective assistance of counsel claim”given the overwhelming

evidence establishing . . . guilt” from the “no less than four members of the alleged drug conspiracy

[who] testified against Campbell at trial”). While admittedly there were aspects of these individuals’

personal histories, including their purported gang affiliations and drug use, that might cause a juror

to question their credibility, there was no reasonable probability that the jury would have decided

the case differently.   Moreover, in contrast to the number of witnesses corroborating the

prosecution’s version of the facts, no one other than Manley testified that Manley exited his truck

to confront Glover, that Glover possessed a gun, and that only after hearing gunshots did Manley

wrestle Glover’s gun from his hand and shoot in self-defense.

       Given the strength of the state’s evidence, we therefore conclude that defense counsel’s errors

were insufficient to “undermine our confidence in the trial’s outcome.” Richey v. Mitchell, 395 F.3d

660, 687 (6th Cir. 2005) (quoting Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir. 1993)). Ultimately,

Manley has failed to demonstrate that “the result of the particular proceeding is unreliable because

of a breakdown in the adversarial process that our system counts on to produce just results.”

Strickland, 466 U.S. at 696.




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                                     III. CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s issuance of a conditional writ

of habeas corpus.




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