                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 08a0463p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                   X
                                                    -
 MICHAEL W. BROWN,
                                                    -
                            Petitioner-Appellant,
                                                    -
                                                    -
                                                         No. 06-2295
              v.
                                                    ,
                                                     >
                                                    -
                          Respondent-Appellee. -
 DAVID SMITH,
                                                    -
                                                   N
                       Appeal from the United States District Court
                       for the Eastern District of Michigan at Detroit.
                     No. 03-73247—Arthur J. Tarnow, District Judge.

                                   Argued: July 23, 2008
                         Decided and Filed: December 31, 2008
          Before: BOGGS, Chief Judge; and MOORE and CLAY, Circuit Judges.

                                   _________________

                                        COUNSEL

ARGUED: Todd Shanker, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for
Appellant. Janet A. VanCleve, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Todd Shanker, James R. Gerometta,
FEDERAL DEFENDER OFFICE, Detroit, Michigan, for Appellant. Raina I. Korbakis,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

          BOGGS, C. J., delivered the opinion of the court, in which MOORE, J., joined.
CLAY, J. (pp. 16-20), delivered a separate concurring opinion, in which MOORE, J., also
joined.




                                              1
No. 06-2295          Brown v. Smith                                                     Page 2


                                    _________________

                                          OPINION
                                    _________________

        BOGGS, Chief Judge. Michael Brown, who was convicted of sexually molesting
his teenage daughter, appeals the district court’s denial of his habeas petition. He argues that
his trial attorneys’ failure to investigate and obtain records related to his daughter’s
counseling sessions—which records would have undermined her credibility—denied him
the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1994).
The district court, applying the standard of review mandated under the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA), agreed that Brown’s counsels’ performance
was deficient, but held that Brown had not been prejudiced thereby. For the reasons that
follow, we hold that AEDPA deference does not apply to this case, and, judging under a de
novo standard, we conclude that Brown was indeed prejudiced by his trial counsels’ deficient
performance. We therefore reverse.

                                        I. Background

        In March 2000, Michael Brown was convicted by a jury in Midland County,
Michigan, of two counts of first-degree criminal sexual conduct (CSC) and one count of
second-degree CSC, stemming from an incident in which Brown was alleged to have
sexually fondled his fourteen-year-old daughter, H.B., and forced her to perform oral sex on
him. The defense theory was that H.B. fabricated the story of abuse to thwart her father’s
impending marriage to his live-in girlfriend, Jane Romankewiz, whom the daughter detested.

        At trial, the only direct evidence the prosecution presented of the crime was H.B.’s
own testimony that her father had sexually assaulted her on one occasion sometime in early
March 1999. She also testified that, prior to the assault, her father had made inappropriate
comments about her developing body, had touched her inappropriately on several occasions,
and was physically abusive toward her. This testimony was partly corroborated by a friend
of H.B.’s who testified at the trial, but was also categorically refuted by two other witnesses,
Romankewiz and Brown’s father. Approximately four months after the alleged sexual
assault, during the second week of July, H.B. told her friend that her father had molested her,
and her friend encouraged her to tell her mother (Brown’s ex-wife), which she did the next
No. 06-2295            Brown v. Smith                                                             Page 3


day. This revelation occurred the week after Romankewiz told H.B. that her divorce would
soon become final, thereby paving the way for Romankewiz to marry Brown. Romankewiz
testified that H.B. “didn’t seem happy at all” about this news.

         In her testimony, H.B. denied any dislike for Romankewiz, stating that Romankewiz
caused “a little bit” of trouble in her relationship with her father, but that she liked
Romankewiz as a person and bore no animosity toward her. She acknowledged that she did
not want her father to marry Romankewiz, but said it was because they “didn’t get along”
and were abusive toward each other. After initially denying that she had written, in a school
assignment, that one of her goals was “to make sure [that her] father didn’t marry
[Romankewiz],” she was forced to recant when defense counsel showed her the assignment
in which she had written that goal. The jury, however, resolved the credibility issue in favor
of H.B., and convicted Michael Brown on all counts. He was sentenced to ten and a half to
twenty-five years in prison.

         On direct appeal, Brown unsuccessfully argued that he had been deprived of the
effective assistance of counsel because his trial lawyers had failed to investigate H.B.’s
counseling sessions with Nancy Parsons (then Nancy Rachow), a therapist with whom H.B.
met regularly in the months prior to and immediately after the alleged assault. After denying
                                                                          1
Brown’s request for a Ginther hearing to develop this issue, the Michigan Court of
Appeals rejected Brown’s argument:

         [T]he decision whether to present the victim’s counselor in order to
         impeach the victim was a matter of trial strategy. The proposed
         impeachment evidence was not substantially different from other
         evidence presented at trial. Indeed, there are indications in the record,
         including the attachments to defendant’s sentencing memorandum, that
         the counselor was defendant’s friend, that defense counsel did not find
         her to be credible, and that she did not have knowledge of any
         inconsistencies or recantations, only her personal opinion that the victim

         1
           In the Michigan courts, a Ginther hearing is an evidentiary hearing related to claims of
ineffective assistance of counsel. See People v. Ginther, 212 N.W.2d 922, 924 (Mich. 1973). The
Michigan Court of Appeals gave no explanation for denying petitioner’s request for a Ginther hearing.
The state court’s refusal is perplexing, since there were numerous factual issues related to Brown’s claim
that were not (and are still not) well developed. Indeed, in a recent case involving similar facts, the
Michigan Court of Appeals reversed a trial court’s refusal to grant a Ginther hearing as an abuse of
discretion. See People v. Couron, No. 256952, 2006 WL 2708576 (Mich. Ct. App. Sept. 21, 2006)
(remanding for a Ginther hearing in a sexual abuse case where defense counsel failed to seek to examine
the teenage accuser’s psychological records).
No. 06-2295        Brown v. Smith                                                   Page 4


       may be fabricating the allegations of abuse. Defendant has failed to
       overcome the presumption of sound trial strategy or shown that there is
       a reasonable probability that counsel’s failure to call this witness
       deprived him of a substantial defense or otherwise affected the outcome.
People v. Brown, No. 227953, 2003 WL 133055, at *4 (Mich. Ct. App. Jan. 3, 2003)
(internal citations omitted).

       Brown timely filed a habeas petition with the district court in 2003, raising, inter
alia, this ineffective-assistance-of-counsel claim. The district court held a hearing on
the matter and reviewed Parsons’s counseling records in camera, after which the district
court made the records available to both Brown and the State.

       The records could have provided additional grounds for impeachment of H.B.’s
testimony. For example, at trial, H.B. downplayed any animosity between her and her
would-be step-mother. The counseling notes, however, reveal that H.B. told Parsons that
“she can’t stand [Romankewiz]” and that “she hates [Romankewiz] for the way she tries
to change her dad and his relationship with [her].” Similarly, during the session held
immediately prior to her publicly accusing her father of molesting her, H.B. vented about
Romankewiz to Parsons: “[H.B.] says she’s not used to no relationship with her dad.
They have always had one, [Romankewiz] got mad, the D.T. which stood for ‘Damned
Tramp’ called [her] a ‘Spoiled Little Bitch’, and [Brown]’s ‘Precious Little Daughter’.”
In sum, the notes reveal that H.B. harbored an antipathy towards her probable step-
mother much more intense than any revealed at trial.

       Additionally, the notes reveal that H.B. was suicidal about two months before the
alleged assault (she “stuck a gun in her mouth”), show that H.B. was not always truthful
with her father (contradicting her testimony at trial), and contain a somewhat cryptic
reference to H.B.’s peculiar involvement in an uncle’s rape trial: “Uncle Tim Brown,
dad’s brother was sentenced for rape and [H.B.] gave police witness and she worries
about what her uncle will do when he gets out. Uncle did not rape girl, the girl
consented willing.”
No. 06-2295            Brown v. Smith                                                              Page 5


         The district court, operating under the assumption that AEDPA deference
applied, “agree[d] that defense counsel should have investigated what Ms. Parsons had
to say . . . . Counsel could not have evaluated or weighed the risks and benefits of
calling Ms. Parsons as a witness without so much as contacting her and determining
what she would say if called.” Brown v. Smith, No. 03-CV-73247-DT, 2006 WL
2669194, at *9 (E.D. Mich. Sept. 18, 2006). Nevertheless, the district court determined
that there was no prejudice, because defense counsel had already impeached the
daughter’s testimony to a considerable extent on cross-examination, and because much
of what the daughter told Parsons was consistent with her testimony at trial—a point the
prosecution would surely have emphasized. The district court concluded:

         Calling Ms. Parsons as a witness would have entailed some risks.
         Although she might have been a good . . . witness for [Brown], she also
         could have provided evidence favorable to the prosecution on cross-
         examination. The Court’s confidence in the outcome of the trial is not
         undermined by defense counsel’s failure to investigate and present Ms.
         Parsons as a witness.
Id. at *10. Consequently, the district court denied habeas relief.

                                              II. Analysis

         The district court erred in presuming that AEDPA’s deferential standard applied
to this case, and thus its conclusion as to ineffectiveness and prejudice cannot stand.2
Examining Brown’s habeas petition de novo, we conclude that his ineffective-assistance-
of-counsel claim has merit, and that he is thus entitled to the writ.




         2
           We note, however, that the district court was ill-served in this regard by the petitioning party,
who never argued that AEDPA deference did not apply until this appeal. Nevertheless, a party cannot
“waive” the proper standard of review by failing to argue it. See Worth v. Tyer, 276 F.3d 249, 262 n.4 (7th
Cir. 2001) (“[T]he court, not the parties, must determine the standard of review, and therefore, it cannot
be waived.”); K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996) (standard of review
is a determination that the court makes for itself).
No. 06-2295         Brown v. Smith                                                    Page 6


                                 A. Standard of Review

        AEDPA requires that a state court’s adjudication with respect to a habeas claim
cannot be overturned unless it is contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d). This
deferential standard of review, however, applies only to a claim that has been
“adjudicated on the merits in State court proceedings.” Ibid. Brown argues, and we
agree, that his ineffective-assistance-of-counsel claim has not been “adjudicated on the
merits” because the counseling notes that form the basis of the claim were not in the
record before the Michigan Court of Appeals, and that court explicitly acknowledged
that its review was “limited to mistakes apparent on the record.” Brown, 2003 WL
133055, at *2.

        This circuit has held that, in the context of a Brady claim, when the petitioner’s
habeas claim involves Brady material that was uncovered only during the federal habeas
proceedings, AEDPA deference does not apply to an earlier, state-court Brady
adjudication involving a different mix of allegedly improperly withheld evidence.
Joseph v. Coyle, 469 F.3d 441, 469 (6th Cir. 2006); see also Monroe v. Angelone, 323
F.3d 286, 297 (4th Cir. 2003) (“AEDPA’s deference requirement does not apply when
a claim made on federal habeas review is premised on Brady material that has surfaced
for the first time during federal proceedings.”). We think that the same principle applies
generally whenever new, substantial evidence supporting a habeas claim comes to light
during the proceedings in federal district court. See Killian v. Poole, 282 F.3d 1204,
1208 (9th Cir. 2002) (AEDPA deference does not apply where “evidence . . . was
adduced only at the hearing before the [federal] magistrate judge” since, without the
evidence, “the state courts could not have made a proper determination on the merits.”);
cf. Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (noting that where “new evidence
is admitted, some Courts of Appeals have conducted de novo review on the theory that
there is no relevant state-court determination to which one could defer” and “assuming,
arguendo, that this analysis is correct and that it applies where . . . the evidence does not
support a new claim but merely buttresses a previously rejected one”).
No. 06-2295            Brown v. Smith                                                             Page 7


         To be sure, this rule presupposes that the threshold standard for admitting new
evidence in the federal district court is met: (1) the petitioner must not be at fault for
failing to develop the evidence in state court, or (2) if the petitioner is at fault, the narrow
exceptions set forth in 28 U.S.C. § 2254(e)(2) apply. See Holland, 542 U.S. at 652-53
(New evidence may be admitted in federal habeas proceedings “only if respondent was
not at fault in failing to develop that evidence in state court, or (if he was at fault) if the
conditions prescribed by § 2254(e)(2) were met.”); Alley v. Bell, 307 F.3d 380, 389-90
(6th Cir. 2002). Here, the district court never made any explicit finding on the threshold
matter of whether Brown was at fault for failing to obtain Parsons’s counseling records.
This court must therefore either remand this case to the district court for such a finding,
or independently assess whether Brown met the standard for expanding the evidentiary
record in a habeas proceeding. See Holland, 542 U.S. at 653. We elect to do the latter,
because the record is sufficiently clear for us to conclude that Brown was not at fault in
failing to obtain the counseling notes during the state post-conviction proceedings.
Brown made two motions for a Ginther hearing with the Michigan Court of Appeals to
develop this evidence; both were denied. And Parsons herself apparently refused to
disclose her counseling notes to Brown or his counsel, in the absence of a court order.
Thus, the evidence that supported Brown’s previously rejected ineffectiveness claim was
not available to Brown until the federal habeas proceeding, when the district court
received Parsons’s counseling notes, reviewed them in camera, and then provided them
to the parties.

         We conclude that the absence of the counseling records before the Michigan
Court of Appeals (through no fault of Brown’s), combined with that court’s explicit
statement that its review was “limited to mistakes apparent on the record,” means that
there is no relevant state court adjudication to which this court can defer.3 Because we
hold that AEDPA deference is inapplicable, we review this case under the pre-AEDPA
standard of review: de novo for questions of law (including mixed questions of law and
fact), and clear error for questions of fact. See Maples v. Stegall, 340 F.3d 433, 436 (6th

         3
         For its part, the State offered no specific rebuttal, either in its brief or at oral argument, to
Brown’s assertion that AEDPA deference did not apply.
No. 06-2295            Brown v. Smith                                                             Page 8


Cir. 2003); see also Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008) (“The
performance and prejudice components of Strickland present mixed questions of law and
fact and are reviewed de novo.”).

                                   B. Performance of Counsel

         Strickland sets the standard by which the performance of trial counsel is to be
measured: “reasonably effective assistance.” 466 U.S. at 687. Regarding decisions
made by trial counsel after “less than complete investigation,” the Court explained that
such decisions

         are reasonable precisely to the extent that reasonable professional
         judgments support the limitations on investigation. In other words,
         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.
Id. at 690-91. In accordance with this standard, we assess whether Brown’s counsels’
decision not to investigate the counseling records they knew existed (by, for example,
requesting in camera review of those records before the trial court) fell below “an
objective standard of reasonableness.” Id. at 688.

         So far as can be determined from the sparse record before us, the extent of
Brown’s counsels’ “investigation” into Parsons and her counseling records consisted of
a two- to three-minute conversation between Parsons and one of Brown’s attorneys,
Mitchell Nelson, on the third day of trial. We do not know what was said during this
brief meeting between Nelson and Parsons,4 but no one disputes that Brown’s attorneys
did not seek in camera review of her counseling records, even though, under Michigan
law, they were entitled to such review, provided they could establish “a reasonable
probability that the privileged records [were] likely to contain material information


         4
         There are no affidavits in the record from Brown’s trial attorneys, and, although Parsons did
submit an affidavit (in the form of a letter to the district judge) along with her counseling records, she
never mentioned this meeting. Apparently, neither Brown nor the State made any effort to contact
Brown’s trial attorneys.
No. 06-2295           Brown v. Smith                                                            Page 9


necessary to [Brown’s] defense.” People v. Stanaway, 521 N.W.2d 557, 562 (Mich.
1994); see also MICH. CT. R. 6.201(C) (incorporating rule announced in Stanaway);
People v. Adamski, 497 N.W.2d 546, 549-50 (Mich. Ct. App. 1993) (holding, in a case
involving a 14-year-old daughter accusing her father of sexual abuse, that Michigan’s
statutory psychologist-patient privilege must yield to a defendant’s constitutional right
of confrontation).

         We think it likely that Brown could have made the threshold showing that
Stanaway requires, though we can find no Michigan case explaining precisely what
constitutes a “reasonable probability.” Cf. People v. Tessin, 547 N.W.2d 641, 642
(Mich. 1995) (separate statement by J. Levin) (“There is no decision of this Court or
reported decision of the Court of Appeals explicating what constitutes . . . a ‘reasonable
probability.’”). Although Stanaway, along with numerous subsequent Michigan cases,5
makes clear that a “defendant’s generalized assertion of a need to attack the credibility
of his accuser d[oes] not establish the threshold showing of a reasonable probability that
the records contain information material to his defense,” 521 N.W.2d at 562, Parsons
herself was clearly sympathetic to Brown’s cause (as evidenced by two letters written
to the state trial judge in which Parsons expressed her belief that an innocent man had
been convicted) and could likely have assisted defense counsel in making the requisite
showing, without violating her professional obligations to her young client. For
example, Parsons could have provided Brown’s attorneys (had they asked) with an
affidavit stating that her counseling records contained pertinent information necessary
to Brown’s defense, without necessarily divulging specifics. Indeed, Parsons herself
stated, in one of the aforementioned letters, that she “checked with the State about what
needed to be done, in order for me to testify, without breaching the clients [sic]
confidentiality, and I mailed that information to [Brown’s] attorneys.” It does not appear
that the attorneys took any action in response.



         5
          See, e.g., People v. Laird, No. 276566, 2008 WL 2437543, at *1 (Mich. Ct. App. June 17, 2008);
People v. Clinton, No. 257699, 2006 WL 397961, at *2 (Mich. Ct. App. Feb. 21, 2006); People v. Plouhar,
No. 197425, 1999 WL 33438143, at *5 (Mich. Ct. App. July 27, 1999); People v. Flynn, No. 185675, 1997
WL 33353585, at *1 (Mich. Ct. App. Mar. 4, 1997).
No. 06-2295         Brown v. Smith                                                 Page 10


        The prosecution’s entire case hinged on the credibility of H.B., and defense
counsel were aware that Parsons (who disbelieved H.B.) had treated her near the time
of the alleged assault, both before and after the assault.              It was therefore
negligent—indeed, constitutionally deficient—for Brown’s attorneys not to seek in
camera review of the counseling records, at least in the absence of any evidence that
they had some legitimate reason for not pursuing the records.

        The Michigan Court of Appeals, on the record before it, thought that trial
counsels’ decision not to call Parsons to the stand was a strategic one, and cited
“indications in the record, including the attachments to defendant’s sentencing
memorandum, that the counselor was defendant’s friend, that defense counsel did not
find her to be credible, and that she did not have knowledge of any inconsistencies or
recantations, only her personal opinion that the victim may be fabricating the allegations
of abuse.” Brown, 2003 WL 133055, at *4. Although, as we have explained, AEDPA
deference does not apply to the state court’s legal adjudication, its factual determinations
must still be presumed correct under 28 U.S.C. § 2254(e)(1). See also Strickland, 466
U.S. at 698 (“[S]tate court findings of fact made in the course of deciding an
ineffectiveness claim are subject to the deference requirement of § 2254[] . . . .”). Brown
has the burden of rebutting this presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).

        With regard to the state court’s assertion that Parsons “did not have knowledge
of any inconsistencies,” we conclude that Brown has met his burden. The counseling
records, which the state court never reviewed, plainly reveal several inconsistencies
between H.B.’s testimony at trial and what she confided to her counselor regarding her
relationship with Romankewiz, a relationship that was the basis of the defense strategy
to undermine H.B.’s credibility by providing a motive for her to fabricate the abuse
allegations.

        With regard to the state court’s assertion that Brown’s counsel did not find
Parsons to be credible, we can find no basis in the record to support that statement.
Although the state court cited “indications in the record, including the attachment[] to
No. 06-2295            Brown v. Smith                                                              Page 11


[Brown’s] sentencing memorandum,” as the source for its findings, neither Brown nor
the State has been able to point us to any relevant document upon which the state court
could plausibly have relied in concluding that Brown’s attorneys did not find Parsons
to be credible. Indeed, at oral argument, counsel for Brown (a member of the Federal
Public Defender’s Office) represented that his office had inquired with the clerk of the
state court and was informed that no “attachment to the defendant’s sentencing
memorandum” existed because none was ever filed on behalf of Brown. The State, on
the other hand, represented that the transcript of Brown’s sentencing hearing does indeed
refer to such a memorandum, but that the memorandum was never docketed and no one
can find it. Thus we are left in the awkward position of having to assume the correctness
of a state court finding when no one can locate any evidentiary support for that finding.

         But even assuming that the state court was correct, our quarrel is not with trial
counsels’ decision to forego calling Parsons as a witness per se, but rather with the lack
of any reasonable, timely investigation into what she might have offered the defense.
Without ever seeking in camera review of the counseling records, Brown’s counsel
could not reasonably have determined what value, if any, those records might have been
to his defense, and could not properly have weighed the potential benefit of calling
Parsons to the stand (whatever her perceived credibility) against the potential risk.
Moreover, even if Parsons were never called as a witness, defense counsel could still
have used the counseling records to impeach the daughter on cross-examination.6 But
by the time defense counsel met directly with Parsons (for two to three minutes on the
third day of trial), the daughter had already testified, and the opportunity to impeach her
testimony directly had passed.

         Though we are mindful that, under Strickland, the burden is Brown’s to
overcome the “strong presumption that [his] counsel[s’] conduct f[ell] within the wide


         6
          This assumes, of course, that the trial court, after in camera review, would have determined that
Brown was entitled to have access to those records. We think, however, that this proposition is likely,
considering the numerous derogatory statements that the daughter made directed toward Romankewiz, the
daughter’s revelation that she had “stuck a gun in her mouth” approximately two months prior to the
alleged assault (indicating the fragile state of her mental health at the time), and various other statements
that could also have been used to impeach her testimony.
No. 06-2295           Brown v. Smith                                                         Page 12


range of reasonable professional assistance,” 466 U.S. at 689, and that he must do so
without relying on “the distorting effects of hindsight,” ibid., on this record, we agree
with the district court that trial counsels’ performance fell below an objective standard
of reasonableness.

                                           C. Prejudice

        Even where a habeas petitioner demonstrates deficient performance, Strickland
requires that “the defendant affirmatively prove prejudice” resulting from the
ineffectiveness of his counsel. Id. at 693. Notably, “[i]t is not enough for the defendant
to show that the errors had some conceivable effect on the outcome of the proceeding.”
Ibid. Rather, “[t]he defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694. In making this determination, a court must consider the
“totality of the evidence before the judge or jury.” Id. at 695. Thus, a case in which the
“verdict or conclusion [is] only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Id. at 696.

        In the present case, the only evidence of Brown’s guilt was the testimony of his
teenage daughter, most of which was uncorroborated.7 The entire case thus hinged on
whether she was believable. The jury concluded that she was, but did so without the
benefit of all the information that could have been before them. Specifically, had
defense counsel obtained Parsons’s counseling records, the jury could have learned that,
contrary to H.B.’s testimony on direct examination, H.B. repeatedly expressed marked
disdain for Romankewiz—far more intense than that to which she admitted at trial. For
example, whereas at trial H.B. testified that Romankewiz caused only “a little bit” of
trouble in her relationship with her father and that she bore no animosity towards
Romankewiz, during the June 1, 1999 counseling session, Parsons recorded that H.B.’s


        7
            H.B.’s friend did testify that she witnessed Brown strike H.B. on one occasion and also saw
“weird” touching and wrestling between them. Romankewiz and Brown’s father, on the other hand, both
testified that they never witnessed any inappropriate behavior directed toward H.B. by her father.
No. 06-2295         Brown v. Smith                                                 Page 13


“[d]epression appears to happen a lot when [H.B.] is at her dad’s, where she can’t stand
[Romankewiz]. . . . It seems like [H.B.’s father and Romankewiz] have no time for
[H.B.]. . . . [H.B.] says she hates [Romankewiz] for the way she tries to change her dad
and his relationship with [H.B.].” Although at the next counseling session, held a week
later, H.B. reported that “things [were] going very well between her, and her dad and
[Romankewiz],” at the July 6, 1999 counseling session—held just one week before
H.B.’s public accusation that her father had molested her—Parsons recorded that “[H.B.]
says she’s not used to no relationship with her dad. They have always had one,
[Romankewiz] got mad, the D.T. which stood for ‘Damned Tramp’ called [H.B.] a
‘Spoiled Little Bitch,’ and [Brown’s] ‘Precious Little Daughter.’”

        The state argues that this impeachment evidence is cumulative, given that
Brown’s counsel impeached H.B. with her school assignment, in which she had written
that one of her goals was to prevent her father from marrying Romankewiz, and H.B.’s
friend’s testimony that H.B. “hated” Romankewiz. While it is true that “the failure to
present additional . . . evidence that is merely cumulative of that already presented does
not . . . establish prejudice,” Getsy v. Mitchell, 495 F.3d 295, 313 (6th Cir. 2007) (en
banc) (internal quotation omitted), cert. denied, 128 S. Ct. 1475 (2008), we disagree that
this evidence was “merely cumulative.” Evidence is cumulative when it supports a fact
already established by existing evidence, Stewart v. Wolfenbarger, 468 F.3d 338, 358
(6th Cir. 2006); adds very little to the probative force of the other evidence in the case,
Clark v. Mitchell, 425 F.3d 270, 294 (6th Cir. 2005); is merely a repetition of previous
testimony, United States v. Castle, 83 F. App’x 977, 977 (9th Cir. 2003); or—in the case
of undisclosed impeachment evidence—when the witness has already been sufficiently
impeached at trial, Edmond v. Collins, 8 F.3d 290, 294 (5th Cir. 1993).

        It is only in this last category that the missing evidence in this case might
plausibly be characterized as cumulative, but we disagree that H.B. was so effectively
impeached by defense counsel at trial that the addition of this evidence could not have
caused significant further deterioration of her credibility. On the critical issue of H.B.’s
feelings toward Romankewiz, the impeachment evidence that was introduced was
No. 06-2295           Brown v. Smith                                                         Page 14


limited principally to the school assignment and H.B.’s friend’s statement that H.B.
“hated” Romankewiz. But the school assignment was written months before H.B.
publicly accused her father of molesting her, diminishing its relative importance, i.e., it
does significantly less to undermine her credibility than do her statements, uttered less
than one week before she accused her father of molesting her (and contemporaneous
with her learning that Romankewiz’s divorce had become final), that Romankewiz was
a “Damned Tramp” who caused her to have “no relationship with her dad.” Second, the
friend’s testimony is far less damaging to H.B.’s credibility than H.B.’s own words,
especially given when those words were spoken and how significantly they contradicted
her trial testimony.

        There were also other revelations contained in the counseling notes that certainly
merited exploration by defense counsel, and which could have further eroded H.B.’s
credibility. For example, at the first counseling session after the alleged assault, H.B.
told Parsons that she had felt suicidal and “stuck a gun in her mouth” four months earlier
(which would have been approximately two months before the alleged assault), and
could have led defense counsel to explore carefully the state of H.B.’s mental health
around the time she says she was victimized. Also, on direct examination, H.B. testified
that she was always truthful with her father, but the counseling records contradict this.

        Admittedly, and as noted by the district court, the counseling notes would also
have revealed some information damaging to Brown. See Brown, 2006 WL 2669194,
at *10. Specifically, in the May 11 session, H.B. stated that her father “smacked her
around some” and that her physician had called protective services. Similarly, in the
July 6 session, H.B. said that “she ha[d] covered up for her dad’s abuse a lot, when she
had bruises.” Nevertheless, these instances of non-sexual abuse are not what Brown was
on trial for, and H.B. had already testified about physical abuse on direct examination.
Importantly, H.B. never revealed anything at all about sexual abuse to Parsons until after
she had already publicly accused her father and filed a report with the police.8 Only in

        8
          Although H.B. did, during the June 29 counseling session, mention a “secret” that she would
soon reveal to Parsons, Parsons wrote at the time that H.B.’s comment “seem[ed] in good humor and light
hearted.” By her comment, H.B. might have been referring to the sexual assault she later disclosed to
No. 06-2295            Brown v. Smith                                                             Page 15


these post-accusation counseling sessions do any of the supposedly corroborative details
that the district court found so compelling come to light.

          Where there is relatively little evidence to support a guilty verdict to begin with
(e.g., the uncorroborated testimony of a single witness), the magnitude of errors
necessary for a finding of prejudice will be less than where there is greater evidence of
guilt. See Strickland, 466 U.S. at 696; see also Hodge v. Hurley, 426 F.3d 368, 376 (6th
Cir. 2005) (finding prejudice in sexual abuse case where there was no physical evidence,
and case turned entirely on credibility of dueling witnesses). In this case, the verdict
turned entirely on H.B.’s credibility as a witness, and Brown’s attorneys should have
taken all reasonable steps to investigate evidence relevant to her credibility; their failure
to do so left important facts undiscovered. Given the nature of this missing evidence,
its absence was an error sufficient—where there was no other evidence of Brown’s
guilt—to undermine our confidence in the outcome of his trial. See Strickland, 466 U.S.
at 694.

                                            III. Conclusion

          For the foregoing reasons, the decision of the district court is REVERSED. We
REMAND with instructions to grant a conditional writ of habeas corpus, giving the State
of Michigan 180 days from the date of this opinion’s entry to commence a new trial
against Brown, or, failing that, to release him.




Parsons (or to the fact that she planned to charge such conduct against her father), but it is impossible to
know exactly what H.B. meant, and we cannot give such an ambiguous statement much weight in
assessing prejudice against Brown.
No. 06-2295        Brown v. Smith                                                 Page 16


                              ______________________

                                 CONCURRENCE
                              ______________________

       CLAY, Circuit Judge, concurring, in which Judge Moore joins. Although I
concur in Chief Judge Boggs’ opinion for the Court, I write separately to emphasize an
important issue regarding the standard of review that governs our consideration of this
habeas petition.

       Because the district court concluded that the Michigan Court of Appeals had
ruled on the merits of Brown’s ineffective assistance of counsel claim, the district court
applied AEDPA’s deferential standard of review under 28 U.S.C. § 2254(d). We now
reject the district court’s conclusion that such deference is appropriate, and, for the
reasons set forth in Chief Judge Boggs’ opinion for the Court, instead conclude that
Brown’s claims are subject to de novo review despite the fact that the Michigan Court
of Appeals purported to resolve that claim on the merits. While I concur in this
conclusion, our holding that deference under AEDPA is inappropriate under these
circumstances bears further consideration.

       In reaching this conclusion, we have relied on a line of cases from this Court and
our sister circuits holding that AEDPA’s deferential standard of review does not apply
where substantial new evidence is presented in support of a petitioner’s Brady claim.
Our decision here expressly recognizes that this same principle “applies generally” to
a broader universe of claims. In that respect, our decision today represents a natural but
important progression of this body of case law.

                                            I.

        In many cases, ambiguities in the record make it difficult to determine whether
the state courts resolved a particular claim “on the merits” for purposes of 28 U.S.C.
§ 2254(d). See Harris v. Reed, 489 U.S. 255, 261 (1989). Here, however, there is no
serious question that Brown pressed his ineffective assistance of counsel claim before
the state courts, asserting, just as he does in his federal habeas petition, that his trial
No. 06-2295           Brown v. Smith                                                         Page 17


counsel failed to investigate whether Parsons’ counseling records contained pertinent
information necessary to his defense. Brown, however, was unable to present critical
evidence in support of that claim. Despite all indications that Parsons’ counseling
records contained information necessary to Brown’s defense, Brown’s trial counsel
entirely failed to pursue the matter. Nevertheless, the Michigan Court of Appeals denied
Brown’s request for a Ginther hearing.1 People v. Brown, No. 227953, 2003 WL
133055, at *6 (Mich. Ct. App. Jan. 3, 2003). Instead, the Michigan Court of Appeals
expressly “limited” its review of Brown’s claim “to mistakes apparent on the record.”
Id. at *2. As a result, Brown, through no fault of his own, was left without access to
whatever information Parsons and her counseling records may have been able to offer
in support of his Strickland claim.

        The Michigan Court of Appeals thus never considered significant evidence that
would have supported Brown’s claim. Nevertheless, without knowing what information
Parsons’ records may have yielded, the Michigan Court of Appeals held that “the
decision whether to present the victim’s counselor in order to impeach the victim was
a matter of trial strategy,” and concluded that Brown had “failed to overcome the
presumption of sound trial strategy or show[] that there [was] a reasonable probability
that counsel’s failure to call this witness deprived him of a substantial defense or
otherwise affected the outcome.” Id. at *4. In so ruling, the Michigan Court of Appeals
appears to have resolved Brown’s Strickland claim “on the merits.”

        Under AEDPA, that fact typically requires deference to the state court
adjudication. This Court, however, has recognized that an important exception to the
deference owed state courts under AEDPA exists where substantial new evidence in
support of a petitioner’s claim arises during federal habeas proceedings. See, e.g.,
Joseph v. Coyle, 469 F.3d 441, 469 (6th Cir. 2006). In such cases, we have construed
the development of new evidence as giving rise, in effect, to a new claim, and thus we
have held that deference is not required under § 2254(d).

        1
          Under Michigan law, a defendant asserting an ineffective assistance of counsel claim may
request a Ginther hearing to develop an evidentiary record to support his claim. See People v. Ginther,
212 N.W.2d 922, 924 (Mich. 1973).
No. 06-2295        Brown v. Smith                                                Page 18


       That is precisely the case here. Because the Michigan courts refused to permit
Brown to pursue evidence critical to his Strickland claim, Brown was never able to press
the specific claim he raises here: whether, in light of the information contained in
Parsons’ records, Brown’s trial counsel performed deficiently. As a result, there is no
relevant state court adjudication of the merits of Brown’s claim to which we could defer.
Under such circumstances, as Chief Judge Boggs’ opinion explains, the deference due
state court adjudications under AEDPA is inapposite and inappropriate.

       What Chief Judge Boggs’ opinion leaves unstated, however, is that our holding
today represents an important and natural progression of this Court’s prior jurisprudence
in this area. Until today, this Court has abandoned AEDPA’s deferential standard of
review based on new evidence only in the limited context of Brady claims. See, e.g.,
Joseph, 469 F.3d at 469 (“If [petitioner] were now bringing the same Brady claim, i.e.,
one premised on the same suppressed evidence, then it would be a ‘claim that was
adjudicated on the merits in State court proceedings,’ and we would review the state
court’s decision only for whether it ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States.’”). A number of other circuits also have reached the same conclusion
in the context of Brady claims. E.g., Monroe v. Angelone, 323 F.3d 286, 297 (4th Cir.
2003) (“AEDPA’s deference requirement does not apply when a claim made on federal
habeas review is premised on Brady material that has surfaced for the first time during
federal proceedings.”); Rojem v. Gibson, 245 F.3d 1130, 1140 (10th Cir.2001)
(reviewing Brady claim de novo when exculpatory material was presented for first time
in federal habeas proceedings). In each of these cases, the federal courts declined to
apply AEDPA’s deferential standard of review because the petitioner identified
substantial new evidence that was never considered by the state courts.

       Today we conclude that, although most of these decisions have arisen in the
context of Brady claims, there is no basis for limiting the rule to such claims. Rather,
as we hold today, this principle “applies generally” whenever substantial evidence
supporting a habeas claim comes to light during a petitioner’s federal habeas
No. 06-2295        Brown v. Smith                                                 Page 19


proceedings, or whenever the reviewing state court improperly limits the scope of its
review when considering a defendant’s federal constitutional claim.

                                            II.

       Our broader application of Joseph follows directly from the language of the
statute and comports with this Court’s relevant jurisprudence. By its very terms,
AEDPA applies only to habeas claims that were “adjudicated on the merits in State court
. . . .” 28 U.S.C. § 2254(d). Thus, regardless of the nature of a petitioner’s claim,
deference is required only where the state courts in fact adjudicated a claim “on the
merits.” Where, however, the state court did not assess the merits of a claim properly
raised in a habeas petition, the deference due under AEDPA does not apply. Wiggins
v. Smith, 539 U.S. 510, 534 (2003); Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003).

       The lesson of Joseph and other such cases is that there is no state court
adjudication “on the merits” to which the federal courts could defer when evidence
critical to a petitioner’s claim was never before the state courts. See 469 F.3d at 469.
Regardless of whether the state courts have purported to resolve a particular claim on the
merits, the federal courts are obliged to determine whether that claim in fact was
addressed by the state courts. See, e.g., Cargle v. Mullin, 317 F.3d 1196, 1206-07 (10th
Cir. 2003) (“Neither of these decisions assessed the aggregate prejudice arising from the
several constitutional errors we find here. Thus, our cumulative-error review is not
restricted by § 2254(d)(1)’s limited focus . . . .”); Killian v. Poole, 282 F.3d 1204, 1208
(9th Cir.2002) (“AEDPA deference does not apply to [a petitioner’s] perjury claim . . .
[when] [e]vidence of the [claim] was adduced only at the hearing before the [federal]
magistrate judge.”).

       Building on Joseph, the import of our holding here is that this principle applies
generally, regardless of the nature of the claim presented. Because AEDPA does not
apply where critical evidence in support of a petitioner’s claim was never considered by
the state courts, the availability of significant new evidence demands that the federal
courts take a fresh look at that claim. See Holland v. Jackson, 542 U.S. 649, 653 (2004)
(noting that “[w]here new evidence is admitted, some Courts of Appeals have conducted
No. 06-2295        Brown v. Smith                                                Page 20


de novo review on the theory that there is no relevant state-court determination to which
one could defer” and “[a]ssuming . . . that this analysis is correct and that it applies
where . . . the evidence does not support a new claim but merely buttresses a previously
rejected one”); Monroe, 323 F.3d at 299 n.19 (noting that de novo review is not
appropriate whenever only “a scintilla of new exculpatory material comes to light in
federal proceedings”). Although AEDPA imposes a requirement of deference to state
court adjudications, “[w]e can hardly defer to the state court on an issue that the state
court did not address.” Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). In such
circumstances, federal habeas review of that claim “is not circumscribed by a state court
conclusion.” Wiggins, 539 U.S. at 534.

       Simply put, deference under AEDPA is inappropriate, and not required by
statute, where significant new evidence relevant to a petitioner’s claim becomes
available during federal habeas proceedings or the state courts improperly failed to
consider significant evidence relevant to that claim. In this case, because the newly-
available evidence is central to Brown’s Strickland claim, we must make an independent
assessment of whether this evidence supports habeas relief.
