                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0724n.06
                           Filed: November 24, 2008

                                             No. 07-1795

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


QUINN POINDEXTER,                                 )
                                                  )
       Petitioner-Appellee,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
RAYMOND BOOKER, Warden,                           )   EASTERN DISTRICT OF MICHIGAN
                                                  )
       Respondent-Appellant.                      )
                                                  )
                                                  )
                                                  )

Before: COLE and GIBBONS, Circuit Judges; FORESTER, Senior District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. The warden appeals the judgment of the

district court conditionally granting a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to

petitioner-appellee Quinn Poindexter. The district court held that Poindexter received ineffective

assistance of counsel and that the Michigan Court of Appeals’s finding to the contrary was an

unreasonable application of Supreme Court precedent. For the following reasons, we agree and

affirm the judgment of the district court.

                                                 I.

       This case arises from the shooting of Timothy Ruff late one night in Detroit. Ruff testified

that he walked alone past Poindexter’s house on his way to meet friends at approximately two

       *
        The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District
of Kentucky, sitting by designation.
o’clock in the morning. As Ruff passed Poindexter’s home, according to Ruff’s testimony,

Poindexter ran out of the house without a shirt, pants, socks, or shoes. He had a long gun and,

without warning, shot at Ruff multiple times. The third shot, fired from approximately ten to fifteen

yards away, hit Ruff in the forehead, destroying one eye and displacing the other from his eye socket.

Ruff testified that he did not name his assailant when asked by police officers at the scene, but

informed the police that the shooter lived in the “third house” and pointed towards the home that

Poindexter, Walter Petty, Jr., Sabrina Moore, and Dion Griffin shared. At the time Ruff pointed at

the house, his eyes had already been destroyed. Ruff survived but is blind as a result.

          The prosecution’s theory was that the shooter thus ran out of his house half-naked,

unprovoked, and shot Ruff. The state presented two witnesses to the Michigan trial court who

identified Poindexter as the shooter, Poindexter’s roommate Petty and Ruff. Petty did not name

Poindexter as the shooter until approximately eighteen days after the shooting, when he himself was

questioned by the police about his involvement in an unrelated altercation. Petty then informed the

police that Poindexter had gone to Petty’s girlfriend’s house after the shooting to find Petty. In

contrast to Ruff’s testimony that Ruff was walking alone and was shot for no reason, Petty alleged

that Poindexter confided in him that three men were trying to break into Poindexter’s car and shot

at Poindexter when he came outside. According to Petty, Poindexter said that after the three men

shot at him, he shot back and noticed that two men fled and one man was lying on the ground.

       On approximately the same day that Petty implicated Poindexter in the shooting, Ruff

identified the shooter as “Big 50,” Poindexter’s nickname. Ruff stated that he had not mentioned




                                                  2
“Big 50” at the time of the shooting because he was afraid that the shooter was still there and would

shoot him again.

        Following a bench trial, the trial court acquitted Poindexter of the charged offense, assault

with intent to murder, but found him guilty of the lesser included offense of assault with intent to

commit great bodily harm less than murder and felony firearm. Poindexter was sentenced to thirteen

and one half years to twenty years in prison for assault and two years in prison for felony firearm.

Poindexter timely appealed and filed a motion to remand for an evidentiary hearing pursuant to

People v. Ginther, 212 N.W.2d 922 (Mich. 1973) (“Ginther hearing”). People v. Poindexter, No.

233907 (Mich. Ct. App. Apr. 25, 2002). The Michigan Court of Appeals granted the motion, and

Poindexter presented three days of testimony alleging ineffective assistance of counsel. Poindexter

argued that his counsel, Robert Slameka, failed to call alibi witnesses, failed to call a medical expert

to testify to the victim’s medical records, and misadvised Poindexter not to testify.

        Three alibi witnesses, Dion Griffin, Sabrina Moore, and Violet Hicks, all testified at the

Ginther hearing that Poindexter was innocent and that they were with Poindexter in the home he

shared with Griffin, Moore, and Petty at the time of the shooting. All three said that Poindexter did

not leave the house until after he heard shots, and then he called the police. Notably, Griffin and

Moore recounted that Petty was agitated, said someone owed him money, and left the same house

angrily moments before they heard shots. Their testimony established that Petty had a motive to

shoot someone that evening and that he exited shortly before the shooting from the same “third”

house that Ruff indicated to the police. Their testimony thus not only supported Poindexter’s

innocence but also implicated Petty.


                                                   3
        Juawanda and Robert Robinson, neighbors of Poindexter and Petty, also testified at the

Ginther hearing. Juawanda Robinson stated that she heard two people arguing immediately before

the gun shots. She also heard Ruff identify “Red”1 as the shooter to the police at the scene. The

Robinsons stated that they had not received subpoenas to testify at trial, though Slameka testified

that he had subpoenaed them. Nevertheless, they appeared at Poindexter’s trial after a neighbor told

them to attend. They happened to arrive during closing arguments, and Slameka declined to request

a continuance or to request that the proofs be reopened in order to call the Robinsons as witnesses.

Thus five witnesses were not called to testify at Poindexter’s trial, who together would have offered

testimony that Ruff’s initial identification of the “third house” and “Red” as the shooter applied

equally to implicate Petty as to Poindexter, that Petty had a motive to shoot someone that evening,

and that Poindexter was in his bedroom at the time of the shooting.

        After three days of testimony, including an attempt by Poindexter to present evidence that

he passed a lie detector test, the trial court held that Slameka’s failure to call witnesses and his advice

to Poindexter not to testify were part of his trial strategy. The trial court concluded that counsel had

not been ineffective.

        Poindexter timely appealed, alleging ineffective assistance of counsel on five grounds:

“[Slameka] (1) failed to present a defense; (2) failed to call credible and available defense witnesses;

(3) advised defendant not to testify; (4) failed to disclose his prior representation of a prosecution

witness; and (5) failed to call an expert or physician to explain the contents of the victim’s medical

records.” People v. Poindexter, No. 233907, 2003 Mich. App. LEXIS 2638, at *6 (Mich. Ct. App.


        1
            It is unclear from the record who “Red” is.

                                                    4
Oct. 21, 2003) (footnote omitted). The Michigan Court of Appeals found that Poindexter did not

overcome the strong presumption that his counsel’s decisions were based on trial strategy and did

not show that, but for counsel’s mistakes, the result of the trial would have been different.

       Poindexter then filed an application for leave to appeal in the Michigan Supreme Court,

arguing actual innocence and failure by the Michigan Court of Appeals to consider his polygraph

results, which verified his innocence, when affirming Poindexter’s conviction. Poindexter v. Booker,

No. 05-CV-71607, slip op. at 7 (E.D. Mich. May 30, 2007) (“Poindexter”). The Michigan Supreme

Court denied Poindexter’s application for leave to appeal.

       Poindexter filed a petition in the United States District Court for the Eastern District of

Michigan for a writ of habeas corpus, arguing that 1) “the state court’s decision that trial counsel

was not ineffective was contrary to and an unreasonable application of Supreme Court precedent”;

and 2) Poindexter “is actually innocent.” Poindexter III, slip op. at 7. In his ineffective assistance

of counsel claim, Poindexter alleged six ways in which counsel was ineffective. The district court

found that two of the grounds warranted habeas relief. First, the district court found that trial

counsel’s decision not to present alibi witnesses was not based in sound trial strategy and prejudiced

the outcome of the trial. Second, the district court found that trial counsel failed to subpoena and

produce two additional witnesses, and but for this failure to request a continuance when they did not

appear or to move to reopen the testimony when they did appear, there is a reasonable probability

that the outcome would have been different. The district court thus concluded that trial counsel was

ineffective and conditionally granted habeas relief.




                                                  5
       The warden timely appealed to this court. The warden next made a motion to stay the

issuance of the writ pending appeal. Poindexter responded to the warden’s motion, moved for

immediate bail release from custody, and made a motion for an unconditional writ of habeas corpus

and immediate release. On September 20, 2007, the district court entered a published order denying

Poindexter’s motion for an unconditional writ of habeas corpus, granting the warden’s motion to

stay the writ of habeas corpus pending appeal, and granting Poindexter’s immediate release on bail.

Poindexter v. Booker, No. 05-CV-71607, slip op. at 1, 8 (E.D. Mich. Sept. 20, 2007). The district

court denied the warden’s motion for reconsideration of Poindexter’s release on bond pending

appeal. Poindexter v. Booker, No. 05-CV-71607, slip op. at 1 (E.D. Mich. Oct. 26, 2007).

                                                      II.

       We review de novo a district court’s grant of a writ of habeas corpus. Wolfe v. Brigano, 232

F.3d 499, 501 (6th Cir. 2000). Findings of fact by the district court are reviewed for clear error

unless the district court’s factual determinations are based only on a review of the state court

transcript, in which case they are reviewed de novo. Dando v. Yukins, 461 F.3d 791, 796 (6th Cir.

2006). Factual determinations by a state court are presumed to be correct unless rebutted by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1).

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal

court may grant a state prisoner habeas relief only if the state court’s decision

       (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.


                                                  6
28 U.S.C. § 2254(d). The state court’s decision must be not only incorrect but also objectively

unreasonable. Rompilla v. Beard, 545 U.S. 374, 404 (2005); Wiggins v. Smith, 539 U.S. 510, 520-

21 (2003); Williams v. Taylor, 529 U.S. 362, 409 (2000). The Supreme Court has held that the

“unreasonable application” language permits a reviewing court to grant habeas relief “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.” Williams, 529 U.S. at 413.

In analyzing whether a state court decision is an “unreasonable application” of Supreme Court

precedent, a federal court should rely only on Supreme Court holdings, not dicta. Id. at 412.

                                                 A.

       In order to obtain habeas relief for ineffective assistance of counsel, Poindexter must show

that the state court’s decision was contrary to, or an unreasonable application of, Supreme Court

precedent, namely Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court

held that defense counsel was ineffective only if the defendant showed that 1) counsel’s performance

“fell below an objective standard of reasonableness”; and 2) this deficient performance prejudiced

the defense. Id. at 688, 692. In order to prove the performance prong, Poindexter must overcome

a strong presumption that the action was part of “sound trial strategy.” Id. at 689. In order to prove

the prejudice prong, Poindexter 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.

       In analyzing the merits of an ineffective assistance claim, we review the claim de novo since

it is a mixed question of law and fact. United States v. Wagner, 382 F.3d 598, 615 (6th Cir. 2004).

The district court found that two separate inactions of counsel warranted habeas relief: counsel’s


                                                  7
failure to investigate alibi witnesses and to investigate witnesses who would have supported the

theory that another person shot the victim. We find that habeas relief on both grounds was properly

granted.

                                                       B.

       Defense counsel “has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular

decision not to investigate must be directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. While

“strategic choices made after thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable,” Id. at 690, decisions made by counsel after less thorough

investigations “are reasonable precisely to the extent that reasonable professional judgments support

the limitations on investigation.” Id. at 691. In determining what is objectively unreasonable, we

“conduct an objective review of [counsel’s] performance, measured for ‘reasonableness under

prevailing professional norms,’ which includes a context-dependent consideration of the challenged

conduct as seen ‘from counsel’s perspective at the time.’” Wiggins, 539 U.S. at 523 (quoting

Strickland, 466 U.S. at 688-89) (internal citations omitted).

       Counsel’s duty to investigate has been repeatedly reaffirmed by the Supreme Court. In

Wiggins, the Supreme Court found counsel ineffective for unreasonably failing to investigate

Wiggins’s background for mitigating evidence. Id. at 534. Though presented with social service

records that hinted at Wiggins’s troubled past, counsel failed to investigate and thus failed to uncover

his extensive history of physical, sexual, and psychological abuse. While emphasizing that


                                                   8
Strickland does not require defense counsel to investigate every conceivable evidence trail, the Court

nevertheless held that counsel’s “decision to end their investigation when they did was neither

consistent with the professional standards that prevailed [at the time], nor reasonable in light of the

evidence counsel uncovered . . . evidence that would have led a reasonably competent attorney to

investigate further.” Id. The Court concluded that counsel’s “incomplete investigation was the

result of inattention, not reasoned strategic judgment.” Id.

       Similarly, the Supreme Court in Williams found defense counsel constitutionally ineffective

for failing to investigate Williams’s background. Williams, 529 U.S. at 399. The Court found that

Williams’s attorneys unreasonably failed to seek records and “failed even to return the phone call

of a certified public accountant who had offered to testify” on Williams’s behalf. Id. at 396.

       Consistent with Wiggins and Williams, we have also granted habeas relief when counsel

failed to investigate, particularly when counsel declined to interview key defense witnesses.

Although our decisions are not controlling under AEDPA, they offer insight on the reasonableness

of the state court’s application of Strickland. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.

2007) (“While the principles of ‘clearly established law’ are to be determined solely by resort to

Supreme Court rulings, the decisions of lower federal courts may be instructive in assessing the

reasonableness of a state court’s resolution of an issue.”). In Ramonez v. Berghuis, we found that

counsel was ineffective when counsel recognized the possibility that three witnesses could provide

testimony beneficial to the defendant and yet failed to interview them. 490 F.3d 482, 489 (6th Cir.

2007). In Towns v. Smith, we explicitly stated that counsel’s “duty includes the obligation to

investigate all witnesses who may have information concerning his or her client’s guilt or


                                                  9
innocence.” 395 F.3d 251, 258 (6th Cir. 2005); see also Clinkscale v. Carter, 375 F.3d 430, 443 (6th

Cir. 2004) (collecting Sixth Circuit cases where counsel was found ineffective for failing to

investigate potential alibi witnesses). These cases demonstrate that the failure to interview key

defense witnesses is objectively unreasonable in light of Strickland.

       In this case, Poindexter’s counsel, Slameka, failed to investigate two witnesses, Dion Griffin

and Sabrina Moore, who told Slameka that they were with Poindexter at the time of the shooting.

Griffin lived with Poindexter and Petty, and Moore, also a roommate, was Poindexter’s fiancée.

Griffin testified at the Ginther hearing that he would have testified at trial that he was with

Poindexter during the shooting. After watching television together, he and his girlfriend went to

their room, and Poindexter and Moore went to their own bedroom. He testified:

       Petty came, got the phone, which was in, I believe Mr. Poindexter’s room, got it from
       him. He went to the back, but when he came in, what I do remember about that night
       is that he was a little agitated. And he was a little aggressive with his tone that night.
       . . . Not even 10 minutes had went by from the phone conversation, before he turns
       and leaves. . . . I heard the door slam. . . . I mean just 10 minutes after that door
       shut, I would hear shots. . . . maybe three, four.

(Ginther Hearing Transcript (“GHT”) at 81.) After hearing shots, Griffin said that he and his

girlfriend left their bedroom and followed Poindexter onto the front porch. Poindexter was carrying

the phone that Petty had left behind. A neighbor told them to call the police, and Poindexter “had

told her [he was] calling them.” Id. at 83. In further defense of Poindexter, Griffin testified at the

Ginther hearing that he had never known Poindexter to own any guns, but he knew Petty owned

several guns.

       Although Griffin accompanied Poindexter to meet with Slameka, Slameka never interviewed

him. Griffin also testified that, without being interviewed by Slameka, he nevertheless approached

                                                  10
Slameka on a later date and offered to testify at Poindexter’s trial. According to Griffin, Slameka

“was really adamant on not listening, and not really taking interest in what we were saying.” Id. at

92.

       Moore similarly testified at the Ginther hearing that she was with Poindexter in their

bedroom when Petty entered the house, said someone owed him money, made a phone call, and left

the house. She accompanied Poindexter to five of his meetings with Slameka and reported that

Slameka never once asked her questions regarding the shooting even though he knew that she was

with Poindexter that evening.

        Poindexter must overcome the presumption that, “under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). In this case, however, Slameka’s failure to call Griffin and

Moore is objectively unreasonable. When Poindexter mentioned Griffin and Moore as potential

witnesses the first time he met with Slameka, Slameka told him that the judge would not find them

credible witnesses because of their close relationships with Poindexter. As the district court noted,

this reasoning is deficient because alibi witnesses often have close relationships with the defendant.

Poindexter, slip op. at 15. At the Ginther hearing, when Slameka was asked why he did not call

Griffin, he responded, “I can’t honestly give you an answer to that.” (GHT at 35.) As in Wiggins,

counsel was aware of evidence potentially beneficial to the defendant and failed to investigate

further. Though counsel must not investigate every conceivable line of evidence, the decision not

to call Griffin and Moore was not within a “range of legitimate decisions,” Strickland, 466 U.S. at

689, and is not the product of sound trial strategy. Failure to investigate two alibi witnesses,


                                                 11
particularly when the witnesses both personally offered to provide testimony beneficial to

Poindexter, is therefore objectively unreasonable, and the state court’s decision to the contrary was

an unreasonable application of Strickland.

       Given that Slameka’s performance is deficient, Poindexter must also show that this

performance prejudiced him “resulting in an unreliable or fundamentally unfair outcome.” Miller

v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); Strickland, 466 U.S. at 692, 694. Poindexter must

show that there is a reasonable probability that but for Slameka’s failure to investigate Griffin and

Moore, the result of the trial would have been different. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Wilson v. Parker,

515 F.3d 682, 698-99 (6th Cir. 2008). The district court relied on the trial court’s statement that

either Petty or Poindexter shot Ruff to conclude that there was a reasonable probability that if

Slameka had called Griffin and Moore to testify, the totality of the evidence “would have supported

a finding that Petty, not [Poindexter], was the shooter.” We agree.

       According to Griffin, Poindexter was in his bedroom with Moore when the shots were fired

and could not have left the house without Griffin’s seeing him. According to Moore, Poindexter was

in his bedroom with her when the shots were fired and did not leave the bedroom until after Ruff was

injured. This testimony is sufficient to undermine confidence in Poindexter’s conviction, and we

affirm the district court’s finding of ineffective counsel and grant of habeas relief on this ground.

                                                 C.

       Poindexter also alleges that Slameka failed to investigate two additional witnesses who

would have provided further beneficial testimony. As noted above, trial counsel’s decision whether


                                                 12
to investigate witnesses is given “a heavy measure of deference” and is reviewed for objective

unreasonableness. Strickland, 466 U.S. at 691.

       Juawanda and Robert Robinson are Poindexter’s neighbors. Slameka testified at the Ginther

hearing that he both called and subpoenaed the Robinsons. The Robinsons testified that they did not

receive a subpoena, and Slameka has no documentation to show that he sent a subpoena. Juawanda

Robinson testified at the Ginther hearing that she was prepared to recount that she heard two men

arguing immediately prior to the shooting. She also heard the victim tell the police that “Red shot

me.” Robert Robinson testified that he was going to sleep and was awakened by the shooting. He

saw Ruff crawling on the ground and, in response to a question by the police, pointing in the

direction that the shooter fled.

       The Robinsons appeared at trial to testify during Slameka’s closing arguments. They stated

that though they did not receive a subpoena, a neighbor told them to testify. When they arrived in

court, Slameka did not ask to reopen proofs. Poindexter was adamant before trial that the Robinsons

testify and recounted the following as to what happened when they did appear:

       Then I asked him, I was like Robinsons is here. He was like just telling me to shut
       up. I was like they witnesses, what are you talking about. Then he was like he was
       like he went on with his closing argument. But I did ask him to do one thing. I asked
       could you at least put it on the record they showed up or something. He said how am
       I supposed to do that. I said you attorney. By that time I had got upset, because I felt
       then – I felt by that time that he was railroading me.

(GHT at 176.) After being asked by Poindexter, Slameka did ask the court to note that the witnesses

had appeared. Slameka testified that he did not ask to reopen proofs because he thought it would

be “peculiar” to postpone closing arguments. (GHT at 35.) As the district court noted, “under

Michigan law, it is within a trial court’s discretion to reopen proofs to permit a late-arriving witness

                                                  13
to testify.” Poindexter, slip op. at 20 (citing People v. Collier, 425 N.W.2d 118, 121 (Mich. Ct. App.

1988)). The trial court held that Slameka was not ineffective in failing to call the Robinsons because

they were not eyewitnesses. The Michigan Court of Appeals affirmed, holding that Slameka had

made a “strategic decision” not to call them.

        While “[i]t is true that Strickland and Wiggins compel a federal habeas court to give a wide

berth to trial counsel’s actions,” Ege v. Yukins, 485 F.3d 364, 379 (6th Cir. 2007), there is a limit to

that deference. Id. at 378; Ramonez, 490 F.3d at 489 (“Constitutionally effective counsel must

develop trial strategy in the true sense – not what bears a false label of ‘strategy’ – based on what

investigation reveals witnesses will actually testify to, not based on what counsel guesses they might

say in the absence of a full investigation.”). Given that the Robinsons would have offered beneficial

testimony on behalf of Poindexter and that they were available to testify, Slameka’s failure to

investigate the Robinsons before trial or attempt to reopen the proofs when they did appear at trial

is neither “strategic” nor reasonable. We find that Slameka’s performance was deficient in this

regard and that the conclusion by the Michigan Court of Appeals to the contrary was an unreasonable

application of Strickland.

        To satisfy the second prong of Strickland, Slameka’s deficient performance must have

prejudiced Poindexter. Juawanda Robinson’s testimony would have undermined the victim’s

identification of Poindexter, since she heard the victim tell the police that “Red” shot him. Juawanda

Robinson’s testimony that she heard two men arguing before the gunfire would have strengthened

the implication of Petty as the shooter, since it is consistent with the alibi witnesses’ accounts that

Petty left the house angrily at about that time. Robert Robinson would have testified that he saw the


                                                  14
victim point in the direction in which the shooter fled, which could have undermined the victim’s

testimony that he did not identify the shooter because he feared the shooter was still present. But

for the absence of the Robinsons’ testimony that could have undermined or impeached Ruff and

further implicated Petty, there is a reasonable probability that the result of the proceeding would have

been different. Slameka’s failure to investigate the Robinsons before trial or to ask for a continuance

of closing arguments when they appeared late to trial therefore prejudiced Poindexter. Both prongs

of the Strickland test are satisfied, and Slameka’s failure to investigate the Robinsons is ineffective

assistance of counsel and warrants habeas relief.

                                                  III.

       For the foregoing reasons, we affirm the judgment of the district court.




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