                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                    File Name: 09a0349p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                       X
                                                        -
 MICHAEL BIGELOW,
                                                        -
                              Petitioner-Appellee,
                                                        -
                                                        -
                                                             No. 07-3340
             v.
                                                        ,
                                                         >
                                                        -
                                                        -
 JAMES S. HAVILAND, Warden,
                                                        -
                     Respondent-Appellant.
                                                       N

                                Filed: September 29, 2009
                  Before: MERRITT, COLE and SUTTON, Circuit Judges.

                                    _________________

                                          ORDER
                                    _________________

        In its petition for rehearing, the State claims that “fundamental factual errors” formed
the “underpinnings of [our] decision.” Pet. at 1. We disagree.

        At Michael Bigelow’s criminal trial, alibi witness Vernon Greenlee maintained that
on June 17, the day the crime occurred in Toledo, Ohio, he worked with Bigelow at Gary
Chasin’s house in Columbus—150 miles away. Bigelow’s counsel called no other witnesses
to bolster Greenlee’s testimony, and the jury convicted Bigelow of kidnapping, assault and
arson. Since the conviction, three witnesses, who could have corroborated Greenlee’s
account but whom counsel never identified, have emerged: Victor Timler, Jay Loyzelle and
Christine Ceresna-Patridge. Because counsel could have uncovered these witnesses with
minimal additional investigation, and because the combined effect of their testimony could
have made a difference at a trial where weak eyewitness accounts supplied the State’s only
evidence, we held that counsel provided constitutionally ineffective assistance and that the
state court unreasonably applied Strickland in concluding otherwise.




                                               1
No. 07-3340          Bigelow v. Haviland                                                   Page 2


        Insisting that we missed the mark, the State’s petition focuses on a factual dispute:
Did Victor Timler work at Chasin’s house, and see Bigelow there, on June 16 or June 17?
If it was June 16, then his testimony and the testimony of Jay Loyzelle, who had no
independent recollection of the date he saw Bigelow at Chasin’s house other than that it was
on “the day Victor Timler was there,” JA 370, would have done little to help Bigelow’s
defense. But if it was June 17, then the testimony of Timler and Loyzelle—along with the
testimony of Ceresna-Patridge—would have supported Greenlee’s alibi testimony.

        The State’s strongest evidence that Timler worked at Chasin’s home on June 16, but
not on June 17, is a handwritten “job cost” sheet introduced at his 2004 deposition. See JA
145, 148, 166. The sheet, which purports to “show[] each person, what day they were on the
job and how much time they spent at the job site,” JA 180, places Timler at Chasin’s only
on June 16, JA 166.

        We did not give the job-cost sheet dispositive weight, however, because Timler
testified that other records place him at Chasin’s home on June 17. See JA 723–24 (1999
post-conviction hearing); see also JA 153–54 (2004 deposition). The State responds that
“there are no records to the contrary,” Pet. 5, in the state or federal post-conviction files. But
we did not rely on the other records themselves; we relied on Timler’s testimony about what
those records say. And that testimony gives ample reason to doubt the job-cost sheet’s
accuracy. When asked at the 1999 post-conviction hearing, “[w]hat do your records reflect
about the work that you personally did on June 17th of 1993?” Timler responded that he
“was [at Chasin’s] to put in a liquid level sensor.” JA 723–24. At that point, he assuredly
was referring to a record other than the job-cost sheet, which logs the hours he worked but
says nothing about the tasks he completed. JA 166. And at that point, to the extent the State
was dissatisfied with Timler’s reliance on records not admitted into evidence or otherwise
used to recollect the events of June 17, it had the right to seek the records from Timler. So
far as the 1999 hearing shows, however, the State never made any such request.

        Had a jury heard Timler’s testimony about what his records showed, as opposed to
what the job-cost sheet showed, it reasonably could have credited Timler’s account. As
Timler testified, “the first thing we did was check [the date],” that “the reason why [he] came
[to testify] is . . . because we were there at that time” and that he “wouldn’t have wasted . . . a
No. 07-3340         Bigelow v. Haviland                                                Page 3


couple grand [in lost earnings] for [him and his employees] to be [at the post-conviction
hearing]” if the records had not shown that he was there on June 17. JA 707–08.

        Five years later, at Timler’s 2004 deposition in connection with the federal habeas
proceeding, his testimony adds further doubt to the accuracy of the job-cost sheet. There,
Timler acknowledged “a good possibility” that a “service sheet” they could no longer locate
documented when he worked at Chasin’s and what services he performed there. JA 148.
The service-invoice sheet, which he “thought” had turned up before he testified in 1999, JA
157, may well have informed his prior conclusion that June 17 was “the date [he] was there.”
JA 707. (Adding support to this point, Ceresna-Patridge testified that she “might have had
more paperwork . . . that had the written-up words of who did what and what time and what
day” and “assum[ed] that . . . [they] had that” information before the 1999 post-conviction
hearing. JA 190.) This possibility could well have made all of the difference, for when
Timler was asked “if the service sheet shows you were there on the 17th, rather than [the job-
cost sheet], would the service sheet . . . override [the job-cost sheet]?” Timler answered
“[p]robably, because [the service sheet] was a billing mechanism.” JA 154.

        The State downplays all of this, focusing on Timler’s statements that—based on the
job-cost sheet—he may have been at Chasin’s home on June 16. Pet. 5, JA 145–47; see also
JA 155. But Timler’s testimony is not as “clear[] and unequivocal[]” as the State maintains.
See Pet. 5. At his deposition, Timler said he was there on June 16 “[u]nless the service
invoice says otherwise,” JA 155, and that “my job cost says that I was there [on June 16]”
but “maybe on the service invoices it says otherwise,” JA 159. That Timler said he may
have been there on the date the job-cost sheet suggests and that the job-cost sheet and service
invoice would “probably reflect” the same date, JA 155, by no means eliminates the
reasonable possibility, supported by his other testimony, that he was there on June 17. Had
counsel identified Timler, and called him at trial, the jury could have decided how much
weight to give to the job-cost sheet.

        Keep in mind that Timler’s (and for that matter Loyzelle’s and Ceresna-Patridge’s)
testimony did not need perfect congruence with the job-cost sheet to help Bigelow’s defense.
See Ramonez v. Berghuis, 490 F.3d 482, 490–91 (6th Cir. 2007). With one alibi witness
already testifying that Bigelow was at the Chasin home on June 17, their value was to
No. 07-3340         Bigelow v. Haviland                                              Page 4


strengthen the inference that reasonable doubt existed as to Bigelow’s presence at the crime
scene. Their testimony would have done just that.

                                                ENTERED BY ORDER OF THE COURT

                                                      /s/ Leonard Green
                                                ___________________________________
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