                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0742n.06

                                              No. 10-2685

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


EFRAIM GARCIA,                                             )
                                                                                  FILED
                                                                             Aug 09, 2013
                                                           )
                                                                       DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                               )
                                                           )
v.                                                         )    ON APPEAL FROM THE UNITED
                                                           )    STATES DISTRICT COURT FOR
                                                           )    THE EASTERN DISTRICT OF
CARMEN PALMER,                                             )    MICHIGAN
                                                           )
        Defendant-Appellee.                                )



BEFORE: BATCHELDER, Chief Judge, KEITH, and MARTIN, Circuit Judges.

        BOYCE F. MARTIN, JR., Circuit Judge. Efraim Garcia, a Michigan prisoner convicted

of two counts of first-degree murder, one count of assault with intent to commit murder, and one

count of possession of a firearm while committing a felony, appeals the district court’s dismissal of

his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Although the district court denied

Garcia’s petition, it granted a Certificate of Appealability with respect to Garcia’s claim that his trial

counsel was ineffective for failing to investigate or review the work product of an investigator from

a related federal case. This Court granted Garcia’s Motion to Expand the Certificate of Appealability

to include Garcia’s claim that his trial counsel was ineffective for failing to use transcripts of a

witness’s prior testimony for impeachment. For the following reasons, the judgment of the district

court is AFFIRMED.
No. 10-2685
Garcia v. Palmer

                                                  I.

       Garcia’s convictions arise from a gang-related shooting, known as the “Rutland Street

shooting,” that took place in a residential neighborhood in Detroit during the early morning hours

of July 17, 1994. The Michigan Court of Appeals set forth the underlying facts of the shooting, and

this Court presumes that those facts are correct on habeas review. Wagner v. Smith, 581 F.3d 410,

413 (6th Cir. 2009) (citing 28 U.S.C. § 2554(e)(1)).

       The Detroit Police Department began investigating the Rutland Street shooting in 1994, and

the Federal Bureau of Investigation took over the investigation in 1997. Later that year, federal

prosecutors brought charges under the Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. §§ 1961–1968 (1970), in federal district court against several members of the Cash Flow

Posse gang, including Garcia, Jerry Waucaush, Gregory Ballesteros, and Marty Rodriguez. During

the pendency of the federal case, the court appointed private investigator Julianne Cuneo to assist

Garcia with his defense. Cuneo dedicated approximately one hundred hours to the investigation of

the Rutland Street shooting, during which time she obtained copies of FBI reports and the Detroit

Police Department’s homicide file, questioned several witnesses, and took photographs. Waucaush,

Ballesteros, and Rodriguez pleaded guilty to certain charges and agreed to testify against Garcia at

trial for a reduced sentence. The federal case never went to trial because the federal charges against

Garcia, the sole remaining defendant, were dismissed on jurisdictional grounds in 2000 and

Waucaush, Ballesteros, and Rodriguez withdrew their pleas.




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       In 2001, the State of Michigan brought charges against Garcia, Waucaush, and Ballesteros

for the Rutland Street shooting. Upon learning that attorney Frederick Moore had been appointed

to represent Garcia in the state case, Cuneo called Moore. During the initial call, Cuneo offered

Moore her assistance and access to her file free of charge, although there is no indication that she

made Moore aware of the amount of time that she spent on the investigation or of the contents of her

file. Moore told Cuneo that her assistance would be valuable and that Garcia encouraged him to talk

with her. Nonetheless, he never met with her.

                                                 II.

       During the trial, the prosecution presented an overwhelming amount of evidence implicating

Garcia in the Rutland Street shooting. Just as they had done in the federal case, Garcia’s co-

defendants Waucaush and Ballesteros pleaded guilty to certain charges in the state case. They agreed

to testify against Garcia at trial and received reduced sentences for their cooperation. Before

Waucaush and Ballesteros testified, the prosecution called several witnesses who provided testimony

detrimental to Garcia’s defense by linking Garcia directly to the Rutland Street shooting or to the

guns used in the shooting. The witnesses included members of the Cash Flow Posse, cooperating

witnesses, victim Shirley Johnson, and law enforcement officers.

       On August 27, 2002, the jury found Garcia guilty of two counts of first-degree murder, one

count of assault with intent to commit murder, and one count of possession of a firearm while

committing a felony. Garcia received concurrent terms of life imprisonment without the possibility

of parole for the murder convictions, a concurrent term of twenty to forty years imprisonment for the



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Garcia v. Palmer

assault conviction, and a consecutive term of two years imprisonment for the felony firearm

conviction.

       On direct appeal from his convictions in the Wayne County Circuit Court, Garcia asserted

that trial counsel was ineffective for “refusing to meet with an investigator that had previously been

appointed by the federal court, or review information gathered by the investigator.” People v.

Garcia, No. 246154, 2004 WL 1620844, at *4 (Mich. Ct. App. July 20, 2004). The Michigan Court

of Appeals affirmed Garcia’s convictions, id., and the Michigan Supreme Court denied Garcia’s

application for leave to appeal. People v. Garcia, 472 Mich. 868 (2005).

        Subsequently, Garcia filed a motion for relief from judgment in which he raised a host of

new claims, including a claim that his trial counsel was ineffective for failing to impeach Marty

Rodriguez, but the Wayne County Circuit Court denied the motion on procedural grounds. In

particular, the Circuit Court dismissed the claims under Mich. Comp. Laws § 6.508(D)(3) because

Garcia “failed to show good cause for failure to raise the new issues on appeal, and actual prejudice

for the alleged irregularities that support the claim for relief.” People v. Garcia, No. 01011952-03

(Wayne Cnty. Cir. Ct. April 28, 2006). The Michigan Court of Appeals denied Garcia’s application

for leave to appeal, as did the Michigan Supreme Court, with both courts citing section 6.508(D).

People v. Garcia, No. 270439 (Mich. Ct. App. Nov. 28, 2006) (unpublished); People v. Garcia, 477

Mich. 1112 (2007).

       Garcia filed this habeas corpus petition pursuant to 28 U.S.C. § 2254 in the Eastern District

of Michigan in 2007. In denying Garcia’s petition, the district court held that Garcia had not been



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Garcia v. Palmer

prejudiced by trial counsel’s failure to review the investigator’s work product and it dismissed

Garcia’s remaining claims on procedural grounds. The district court granted a Certificate of

Appealability as to the original ineffective assistance claim, and this Court granted Garcia’s motion

to expand the Certificate to include his claim that trial counsel had been ineffective for failing to

impeach Marty Rodriguez.

                                                  III.

          This Court reviews a district court’s denial of a writ of habeas corpus de novo. Dando v.

Yukins, 461 F.3d 791, 795 (6th Cir. 2006) (citing Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir.

2000)).

          Under the Antiterrorism and Effective Death Penalty Act, a writ of habeas corpus may be

granted “with respect to any claim that was adjudicated on the merits in State court” if the state

court’s decision was “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

A state court decision is “contrary to” clearly established federal law “if the state court arrived at a

conclusion ‘opposite to that reached by [the Supreme] Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has on a set of materially indistinguishable

facts.’” Wolfe, 232 F.3d at 501 (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). An

“unreasonable application” of clearly established federal law is where “‘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.’” Id. (quoting Williams, 529 U.S. at 407). “In order for



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a federal court to find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the

state court’s decision must have been more than incorrect or erroneous. The state court’s application

must have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003)

(citations omitted).

                                                IV.

       Garcia claims that he received ineffective assistance of counsel because his attorney,

Frederick Moore, failed to investigate Julianne Cuneo’s work product.

       Under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), to establish an

ineffective assistance of counsel claim, Garcia “must show both deficient performance and

prejudice.”   Knowles v. Mirzayance, 556 U.S. 111 (2009).           “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of

the particular case, viewed as of the time of counsel’s conduct,” taking into consideration “all the

circumstances.” Strickland, 466 U.S. at 690.

       The Michigan Court of Appeals determined that Garcia had not established deficient

performance on the part of Moore. Specifically, the Michigan Court of Appeals held the following:

       We are not persuaded that the affidavit from the private investigator establishes that
       defense counsel was ineffective. At best, it only establishes that defense counsel
       refused to meet with her. The record discloses that much of the information the
       investigator mentions in her affidavit was available to defense counsel, including the
       FBI’s “302s” and the FBI’s copy of the Detroit Police Department’s file. Although
       the investigator also conducted interviews and background investigations, it is not
       apparent from the record that defense counsel did not conduct his own investigation
       into these same areas. Therefore, we cannot conclude that defense counsel was
       ineffective for failing to take advantage of the investigator’s services.



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People v. Garcia, 2004 WL 1620844, at *4. In light of the state court’s merits-based decision

regarding the performance prong of Garcia’s ineffective assistance claim, deferential review under

section 2254(d) applies and we may grant Garcia’s habeas petition only if the state court’s decision

was “contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).1

         To establish deficient performance under Strickland, the petitioner “must show that

‘counsel’s representation fell below an objective standard of reasonableness.’” Harrington v.

Richter, 131 S.Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 688). “A court considering a

claim of ineffective assistance must apply a ‘strong presumption’ that counsel’s representation was

within the ‘wide range’ of reasonable professional assistance.” Id. (quoting Strickland, 466 U.S. at

689). Petitioner bears the burden of showing that counsel made errors “so serious that counsel was

not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. (internal




         1
          The district court applied de novo review to this claim because it allowed Garcia to depose Moore, and in
Brown v. Smith, 551 F.3d 424, 429 (6th Cir. 2008), we held that the deferential review mandated under section 2254(d)
does not apply where “new, substantial evidence supporting a habeas claim comes to light during the proceedings in
federal district court.” However, since the district court issued its opinion, the Supreme Court decided Cullen v.
Pinholster, 131 S. Ct. 1388 (2011), in which it held that “[i]f a claim has been adjudicated on the merits by a state Court,
a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state Court.”
Pinholster, 131 S. Ct. at 1400. Because Pinholster limits our review to the record before the state court such that we
cannot consider Moore’s deposition, we will apply section 2254(d)’s deferential standard of review. See McCoy v. Jones,
463 F.App’x 541, 545 (6th Cir. 2012) (calling into question the continued validity of Brown in light of Pinholster);
Johnson v. Sherry, 465 F.App’x 477, 478–79 (6th Cir. 2012) (we held that, under Pinholster, we could not consider new
evidence resulting from an evidentiary hearing at the district court in spite of the fact that we had remanded the case to
the district court for the purpose of conducting the evidentiary hearing, and applied deferential review under section
2254(d)).


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Garcia v. Palmer

quotation marks omitted). The Supreme Court has provided courts with guidance for assessing

ineffective-assistance claims based upon an allegation that counsel failed to investigate:

        [S]trategic choices made after less than complete investigation 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.

Strickland, 466 U.S. at 690–91.         “The focus in failure-to-investigate claims, then, is the

reasonableness of the investigation (or lack thereof).” English v. Romanowski, 602 F.3d 714, 726

(6th Cir. 2010) (citing Wiggins, 539 U.S. at 527).

        “Surmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky, 130 S.Ct.

1473, 1485 (2010), but “[e]stablishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult.” Richter, 131 S.Ct. at 788. The standards under both

Strickland and § 2254(d) are “highly deferential,” id. (citations omitted), and when courts apply the

two in tandem, the resulting standard is “doubly” deferential. Id. (citing Knowles, 129 S.Ct. at

1420). “[T]he question is not whether counsel’s actions were reasonable. The question is whether

there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

        Applying the requisite double deference, we uphold the state court’s finding that Moore’s

performance was not deficient. Although Moore’s decision to forego the investigation of Cuneo’s

file was not advisable, it does not fall outside of the wide range of reasonable professional assistance.

Cuneo does not claim that, during any of her interactions with Moore, she made Moore aware of the



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fact that she spent approximately one hundred hours on the case or of the contents of her file. It is

clear that, at some point after Moore’s initial call with Cuneo, he decided that he no longer

considered her assistance valuable, and as the Supreme Court has noted, “[u]nlike a later reviewing

court, the attorney observed the relevant proceedings, knew of materials outside the record, and

interacted with the client, with opposing counsel, and with the judge.” Id. Moore had a better sense

of his needs than this Court could possibly have at this stage of the litigation, and as his own

investigation progressed, it was his sense that Cuneo’s assistance and file were unnecessary. It could

have also been his sense that, at a certain point in his investigation, meeting with Cuneo and

reviewing her file would have been a distraction from more important duties relating to Garcia’s

case. See id. at 789 (“An attorney can avoid activities that appear ‘distractive from more important

duties.’” (quoting Strickland, 466 U.S. at 689)). There is more than one reasonable argument that

Moore reasonably determined the investigation was unnecessary, and as a result, we find that the

state court’s determination that Moore provided Garcia with adequate representation was not

contrary to, or an unreasonable application of, clearly established federal law.

                                                 V.

       Garcia claims that his attorney’s failure to impeach Marty Rodriguez at trial constitutes

ineffective assistance of counsel. In particular, Garcia argues that his attorney should have

impeached Rodriguez with evidence that Rodriguez was a defendant in the federal case and that the

federal government gave him a plea deal in exchange for his inculpatory statements about Garcia.




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        Before addressing the merits of this claim, we must determine if the claim is properly before

us or if Garcia procedurally defaulted the claim. Although the government did not raise the issue

of procedural default on appeal, we may raise it sua sponte. Hodges v. Colson, 711 F.3d 589, 601

n.2 (6th Cir. 2013) (citing Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000)).

        The state court did not consider this claim on the merits, but instead dismissed it on state

procedural grounds. In particular, the Wayne County Circuit Court dismissed the claim under Mich.

Comp. Laws § 6.508(D)(3) because Garcia “failed to show good cause for failure to raise the new

issues on appeal, and actual prejudice for the alleged irregularities that support the claim for relief.”

People v. Garcia, No. 01011952-03 (Wayne Cnty. Cir. Ct. April 28, 2006). Pursuant to section

6.508(D), the Michigan Court of Appeals and the Michigan Supreme Court denied Garcia’s

applications for leave to appeal. People v. Garcia, No. 270439 (Mich. Ct. App. Nov. 28, 2006)

(unpublished); People v. Garcia, 477 Mich. 1112 (2007).

        A habeas petitioner procedurally defaults a claim if: “‘ (1) the petitioner fails to comply with

a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an

adequate and independent state ground for denying review of a federal constitutional claim; and (4)

the petitioner cannot show cause and prejudice excusing the default.’” Guilmette v. Howes, 624 F.3d

286, 290 (6th Cir. 2010) (quoting Tolliver v. Sheets, 594 F.3d 900, 928 n.11 (6th Cir. 2010)).

        The circumstances surrounding Garcia’s ineffective-assistance claim satisfy each element of

the procedural-default test. First, Garcia failed to comply with Mich. Comp. Laws § 6.508(D)(3).

Second, the Michigan courts enforced the rule, with the Wayne County Circuit Court providing a



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thorough explanation of section 6.508(D)(3)’s application. Third, “[i]t is well-established in this

circuit that the procedural bar set forth in Rule 6.508(d) constitutes an adequate and independent

ground on which the Michigan Supreme Court may rely in foreclosing review of federal claims.”

Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005). Finally, Garcia never attempted to show

cause for his failure to raise the claim on direct appeal. Instead of arguing cause in the brief that he

submitted to this Court, Garcia alleged that he brought the claim properly on direct appeal; however,

in his memorandum in support of his habeas petition, he acknowledged that he did not bring the

claim on direct appeal. Garcia procedurally defaulted on this claim.

        For the above reasons, the judgment denying habeas corpus relief is AFFIRMED.




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