                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0134n.06

                                           No. 17-1729

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

ASHLY DRAKE SMITH,                                        )                         FILED
                                                                              Mar 15, 2018
                                                          )
                                                                          DEBORAH S. HUNT, Clerk
       Petitioner-Appellant,                              )
                                                          )
                                                                 ON APPEAL FROM THE
v.                                                        )
                                                                 UNITED STATES DISTRICT
                                                          )
                                                                 COURT FOR THE EASTERN
THOMAS WINN,                                              )
                                                                 DISTRICT OF MICHIGAN
                                                          )
       Respondent-Appellee.                               )
                                                          )


Before: KEITH, KETHLEDGE, and DONALD, Circuit Judges.

       KETHLEDGE, Circuit Judge. Ashly Smith was convicted in Michigan state court of

robbery at gunpoint. He later sought habeas relief in federal court, arguing that his trial counsel

was ineffective because she declined to call alibi witnesses who could not provide him with a

consistent alibi. The district court denied relief. We affirm.

       The state courts have decided Smith’s claims on the merits, so we take the facts as the

state courts found them. See 28 U.S.C. § 2254(e)(1); see also Cullen v. Pinholster, 563 U.S. 170,

181-82 (2011). At around 7:30 p.m. one night, Shawn Kelly heard someone come into his

house. Moments later, Smith entered his room with a gun and took his wallet, marijuana,

cellphone, and other electronics. Before Kelly called the police, he wrote on Facebook a racially

disparaging remark about Smith, who is of mixed race. He also wrote that he was “pretty sure”

that Smith was the robber.
No. 17-1729, Smith v. Winn


       After Smith was charged, his appointed counsel learned that some of his friends had been

with him the night of the robbery and could possibly provide him an alibi. She subpoenaed them

to testify at Smith’s bench trial, but later learned that none had been with Smith throughout the

night and thus that none could fully account for his whereabouts on it. She also worried that they

might give conflicting accounts (as indeed they did at a later hearing).

       Counsel decided not to call the friends at trial and instead to focus on discrediting Kelly,

the state’s main witness. The trial judge doubted Kelly at first, but in the end found Smith guilty

and sentenced him to 15 to 22 total years’ imprisonment. Smith appealed, arguing that counsel’s

decision not to develop and to present an alibi defense amounted to ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984). The Michigan Court of Appeals

eventually affirmed his conviction by a 2-1 vote, and by a 4-3 vote the Michigan Supreme Court

denied him leave to appeal. See People v. Smith, No. 312721, 2014 WL 1320243 (Mich. Ct.

App. Apr. 1, 2014) (per curiam); People v. Smith, 861 N.W.2d 630 (Mich. 2015). Smith then

petitioned for federal habeas relief. The district court denied his habeas claims but certified them

for appeal.

       We review the claims de novo. See Phillips v. White, 851 F.3d 567, 575 (6th Cir. 2017).

At the same time our review is highly deferential, since under Strickland we may deem counsel’s

performance inadequate only if she made an error “so serious” that she effectively provided no

counsel at all. Strickland, 466 U.S. at 687. And because we consider Smith’s Strickland claims

after the state courts have already denied them, we cannot grant relief on those claims unless (as

relevant here) the state courts unreasonably applied Strickland. See 28 U.S.C. § 2254(d)(1).

If “there is any reasonable argument” that counsel looked as far as necessary into the alibi




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No. 17-1729, Smith v. Winn


defense, then for our purposes counsel’s performance was adequate. Harrington v. Richter,

562 U.S. 86, 105 (2011).

       Here, counsel had ample reason not to call Smith’s friends as alibi witnesses. The friends

likely would not have strengthened her position—i.e., that Smith was not the robber—since none

could say for certain where Smith was throughout the night. And the state could have used that

uncertainty to strengthen its own position—i.e., that Smith was at Kelly’s house, robbing Kelly.

Meanwhile counsel had another witness to work with: Kelly himself, who had a motive to lie,

given his open racial hostilities, and who had been only “pretty sure” that Smith was the robber.

Counsel exposed these flaws in the state’s case on cross-examination, and reasonably chose not

to give the state a chance to do the same to hers. See Robins v. Fortner, 698 F.3d 317, 330-31

(6th Cir. 2012). Thus there is a “reasonable argument” that counsel’s strategy at trial “satisfied

Strickland’s deferential standard.” Richter, 562 U.S. at 105.

       Smith argues, however, that counsel was ineffective before trial—specifically ten days

before, when under Mich. Comp. Laws Ann. 768.20(1) she needed to file a notice of any alibi

witnesses she might call. Counsel did not file a notice, apparently because she did not interview

any alibi witnesses until just before trial began. Without a notice, Smith contends, counsel could

not have called those witnesses if she wanted to. But Michigan law leaves judges the discretion

to admit alibi evidence even without an alibi notice. See People v. Travis, 505 N.W.2d 563, 568

(Mich. 1993). And the state courts found that the trial judge would have admitted that evidence

here—a finding that Smith does not rebut and that we therefore must accept. See 28 U.S.C.

§ 2254(e)(1). Thus counsel made no “serious” error by waiting until after the notice deadline to

investigate the alibi defense. Strickland, 466 U.S. at 687.




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No. 17-1729, Smith v. Winn


       Smith also argues that counsel did not investigate the alibi defense fully enough. But

counsel need only investigate a defense until she reasonably decides not to bring it. See id. at

690-91. And Smith does not explain how further investigation would have improved the alibi

defense—i.e., aligned his friends’ stories or revealed friends with better perspectives on the

night’s events.   Cf. Foster v. Wolfenbarger, 687 F.3d 702, 708 (6th Cir. 2012).          Counsel

reasonably decided not to investigate further a defense that she reasonably decided not to bring.

       The district court’s judgment is affirmed.




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