Petition for Writ of Certiorari — Scott Allen DeBruyn, Petitioner v. Adam Douglas, Warden
Supreme Court briefSep 17, 2026
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No. ___
IN THE
Supreme Court of the United States
________________________
SCOTT ALLEN DEBRUYN,
Petitioner,
v.
ADAM DOUGLAS, WARDEN
Respondent.
________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
________________________
PETITION FOR WRIT OF CERTIORARI
Daniel S. Harawa
Counsel of Record
NEW YORK UNIVERSITY
SCHOOL OF LAW
FEDERAL APPELLATE CLINIC
245 Sullivan Street
Fifth Floor
New York, NY 10012
daniel.harawa@nyu.edu
(212) 998-6420
Counsel for Petitioner
i
QUESTION PRESENTED
This Court has announced two competing interpretations of the level of specificity at which it
must articulate a principle in order for it to be “clearly
established Federal law” under 28 U.S.C. § 2254(d)(1),
as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). In Andrew v. White,
this Court held that “[g]eneral legal principles can
constitute clearly established law for purposes of
AEDPA so long as they are holdings of this Court.”
604 U.S. 86, 94 (2025) (emphasis added). Yet in
Brown v. Davenport, this Court said that “holdings
that speak only at a high level of generality” cannot
clearly establish federal law. 596 U.S. 118, 136 (2022).
This lack of clear guidance regarding when general
legal principles constitute clearly established federal
law has sowed confusion in the lower courts.
The question is:
For the purposes of adjudicating a state prisoner’s petition for federal habeas relief, at what level
of specificity must this Court define a legal principle
in order for it to constitute “clearly established Federal law” under 28 U.S.C. § 2254(d)(1)?
ii
PARTIES TO THE PROCEEDING
Petitioner is Scott Allen DeBruyn. Respondents
are Adam Douglas, Warden of Saginaw Correctional
Facility, and Diana Nessel, Attorney General of Michigan.
RELATED PROCEEDINGS
People v. DeBruyn, No. 352274, 2022 WL 981281
(Mich. Ct. App. Mar. 31, 2022) (per curiam)
People v. DeBruyn, 978 N.W.2d 836 (Mich. 2022)
(mem.)
DeBruyn v. Douglas, No. 23-10219, 2024 WL
3236306 (E.D. Mich. June 28, 2024)
DeBruyn v. Douglas, 168 F.4th 913 (6th Cir. 2026)
iii
TABLE OF CONTENTS
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ...................................... ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES ...................................... v
PETITION FOR A WRIT OF CERTIORARI ............ 1
OPINIONS BELOW ................................................... 1
JURISDICTIONAL STATEMENT ........................... 1
RELEVANT STATUTORY PROVISION .................. 2
INTRODUCTION ...................................................... 3
STATEMENT OF THE CASE ................................... 6
REASONS FOR GRANTING THE WRIT............... 12
I. The Courts of Appeals have been long divided
over the level of specificity required to clearly
establish federal law under AEDPA. ................. 13
A. Three circuit courts hold that general
principles do not constitute clearly established
law. .................................................................. 15
B. Three jurisdictions hold—in line with
Andrew—that general legal principles
articulated by this Court can constitute clearly
established federal law. .................................. 20
II. The question is enormously consequential. ......... 24
III.The Sixth Circuit’s decision is wrong. ................. 27
iv
CONCLUSION ......................................................... 34
APPENDIX A, Amended Opinion of the United
States Court of Appeals for the Sixth Circuit,
Filed March 5, 2026 .......................................... 1a
APPENDIX B, Amended Judgment of the United
States Court of Appeals for the Sixth Circuit,
Filed March 5, 2026 .......................................... 34a
APPENDIX C, Opinion and Order of the United
States District Court for the Eastern District of
Michigan, Southern Division, Filed June 28, 2024
........................................................................... 36a
APPENDIX D, Denial of Rehearing En Banc of the
United States Court of Appeals for the Sixth Circuit, Filed May 4, 2026 ..................................... 70a
v
TABLE OF AUTHORITIES
Cases
Alvarez v. Guerrero,
162 F.4th 570 (5th Cir. 2025) ....................... 18, 19
Andrew v. White,
604 U.S. 86 (2025) ...................................................
.............. 4, 11, 12, 14, 16, 18, 20, 21, 24, 25, 32, 33
Apprendi v. New Jersey,
530 U.S. 466 (2000) ....................................... 22, 23
Bieganski v. Shinn,
149 F.4th 1055 (9th Cir. 2025) ........................... 21
Brown v. Davenport,
596 U.S. 118 (2022) ............................12, 14, 16, 17
Burrage v. United States,
571 U.S. 204 (2014) ......................................... 3, 33
Caldwell v. Mississippi,
472 U.S. 320 (1985) ............................................. 17
Carey v. Musladin,
549 U.S. 70 (2006) (Kennedy, J., concurring in
judgment) ............................................................ 14
Duhaime v. Ducharme,
200 F.3d 597 (9th Cir. 2000)............................... 13
Fernandez v. United States,
608 U.S. 411 (2026) ............................................. 33
vi
Garrus v. Sec’y of Penn. Dep’t of Corr.,
694 F.3d 394 (3d Cir. 2012) .......................... 21, 22
Greene v. Palakovich,
606 F.3d 85 (3d Cir. 2010) .................................. 13
Gregg v. Rockview,
596 F. App’x 72 (3d Cir. 2015) ...................... 22, 23
Harrington v. Richter,
562 U.S. 88 (2011) 4, 6, 9, 10, 11, 16, 25, 26, 28, 31
Hinton v. Alabama,
571 U.S. 263 (2014) .... 4, 5, 6, 11, 16, 28, 29, 30, 31
Holberg v. Guerrero,
130 F.4th 493, rev’d en banc, ___ F.4th ___,
No. 21-70010, 2026 WL 2364671 (5th Cir. 2025)
(mem)................................................................... 19
Holloway v. Arkansas,
435 U.S. 475 (1978) ............................................. 19
Karacson v. Shaver,
176 F.4th 525 (6th Cir. 2026) ............................. 17
Larson v. Stucker,
No. 25-1233, 2026 WL 861682 (10th Cir. Mar. 30,
2026) .................................................................... 18
Lefkowitz v. Newsome,
420 U.S. 283 (1975) (Powell, J., dissenting) ...... 33
Lockyer v. Andrade,
538 U.S. 63 (2003) ............................................... 14
vii
Lopez v. Smith,
574 U.S. 1 (2014) (per curiam) ........................... 14
MacFarlane v. Walter,
179 F.3d 1131 (9th Cir. 1999)............................. 13
Marcrum v. Luebbers,
509 F.3d 489 (8th Cir. 2007)............................... 23
Martinez v. Quick,
134 F.4th 1046 (10th Cir. 2025) ................... 17, 18
Matteo v. Superintendent, SCI Albion,
171 F.3d 877 (3d Cir. 1999) (en banc) (McKee, J.,
concurring) .......................................................... 13
Nevada v. Jackson,
569 U.S. 505 (2013) (per curiam) ....................... 14
Panetti v. Quarterman,
551 U.S. 930 (2007) ............................14, 20, 22, 23
Payne v. Tennessee,
501 U.S. 808 (1991) ............................................. 32
Preiser v. Rodriguez,
411 U.S. 475 (1973) ............................................. 33
Sanders v. Plappert,
168 F.4th 837 (6th Cir. 2026) ............................. 17
Schlup v. Delo,
513 U.S. 298 (1995) ............................................. 33
Storey v. Roper,
603 F.3d 507 (8th Cir. 2010)......................... 23, 24
viii
Strickland v. Washington,
466 U.S. 668 (1984) ............................................. 23
Taylor v. Riojas,
592 U.S. 7, 9 (2020) ............................................. 11
White v. Woodall,
572 U.S. 415 (2014) ............................................. 14
Woodson v. North Carolina,
428 U.S. 280 (1976) ............................................. 17
Wright v. Van Patten,
552 U.S. 120 (2008) ............................................. 15
Yarborough v. Alvarado,
541 U.S. 652 (2004) ................................. 15, 20, 25
Statutes
28 U.S.C. § 2254(d)..........................2, 6, 12, 13, 24, 34
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Scott Allen DeBruyn respectfully
petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the
Sixth Circuit.
OPINIONS BELOW
The decision of the court of appeal is reported
at 168 F.4th 913, and reprinted in the Appendix to the
Petition (“App.”) at App. 1a-33a. The Sixth Circuit’s
order denying rehearing en banc, App. 70a-71a, is unpublished but is available at 2026 WL 1642434. The
opinion of the district court, App. 36a-69a, is unpublished but is available at 2024 WL 3236306.
The opinion of the Michigan Court of Appeals
is unreported but is available at 2022 WL 981281.
JURISDICTIONAL STATEMENT
The Sixth Circuit’s amended opinion denying
habeas relief was issued on March 5, 2026. App. 1a33a. On May 4, 2026, the Sixth Circuit denied a timely
petition for rehearing en banc. App. 70a-71a. On July
23, 2026, this Court extended the time to file a petition for a writ of certiorari to September 17, 2026. See
No. 26-A-108. This Court has jurisdiction under 28
U.S.C. § 1254(1).
2
RELEVANT STATUTORY PROVISION
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim—(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 . . . .
3
INTRODUCTION
Petitioner Scott Allen DeBruyn was sentenced
to up to thirty years in prison for giving Percocet pills
to his friend Camille Gesiakowski, because Michigan
claimed that the pills that he allegedly gave her were
a “substantial factor” in her overdose. App. 5a-6a.
But as Justice Scalia once observed, one of “the
distinctive problems associated with drug overdoses”
is the unfortunate fact that “[a]ddicts often take drugs
in combination.” Burrage v. United States, 571 U.S.
204, 214 (2014). As such, many “overdose deaths involve[] more than one drug.” Id.
So was true here. At the time of her death, Ms.
Gesiakowski had multiple substances in her system,
and the official cause of death was mixed-drug overdose. App. 6a, 40a. Thus, Michigan’s entire case
hinged on its ability to isolate Percocet, which contains oxycodone, as a substantial factor in her death
and to prove that causal connection beyond a reasonable doubt. See App. 66a.
Michigan understood that it could prove its
case only through the use of experts. It therefore
called four experts to testify at trial. See App. 40a.
Mr. DeBruyn’s counsel called none. App. 53a54a. They knew their client faced life in prison, and
they conceded at a post-conviction hearing that they
knew they needed to consult with an independent toxicologist. See App. 8a. Yet counsel did not consult with
4
said expert, and thus did not present any rebuttal expert evidence. See App. 53a-54a. Instead, trial counsel
pursued a cross-examination strategy, attempting to
poke holes in the State’s experts’ conclusions to suggest alternate causes of death. See id.
In the courts below, Mr. DeBruyn argued that
his counsel were ineffective for failing to consult with
or call an appropriate expert in support of this strategy. See App. 8a-10a; 17a-18a. His argument went as
follows: This Court has held that “[c]riminal cases will
arise where the only reasonable and available defense
strategy requires consultation with experts or introduction of expert evidence.” Harrington v. Richter,
562 U.S. 88, 106 (2011) (emphasis added); see App.
17a-18a; 23a-24a. This Court then applied that principle in a case where the “core of the prosecution’s case
was the state experts’ conclusion . . . .” Hinton v. Alabama, 571 U.S. 263, 273 (2014). And as this Court explained there, “effectively rebutting that case required a competent expert on the defense side.” Id.;
Petition for Rehearing En Banc at 9-10, DeBruyn v.
Douglas, No. 24-1905 (6th Cir. May 4, 2026); see App.
26a-27a.
Mr. DeBruyn accordingly argued that Harrington and Hinton apply with “obvious clarity” given that
Michigan’s entire case turned on its experts’ interpretation of complex medical evidence, and the defense
strategy was to challenge those State’s experts’ conclusions. Andrew v. White, 604 U.S. 86 (2025); Petition for Rehearing En Banc at 1, DeBruyn, 2026 WL
5
1642434 (No. 24-1905). He explained that if ever
there were a case where an expert was required,
“[t]his was such a case.” Hinton, 571 U.S. at 273; Petition for Rehearing En Banc at 3, DeBruyn, 2026 WL
1642434 (No. 24-1905).
Had trial counsel consulted and called an appropriate expert, the case would have looked far different. Two defense experts testified at Mr. DeBruyn's postconviction hearing, and both agreed on two
conclusions that—if true—would have been fatal to
the State's case. See App. 41a, 46a. First, oxycodone
was unlikely to have been a substantial factor in Ms.
Gesiakowski's death. See App. 46a; 55a-57a. Second,
given the levels of the various substances in her system, even if oxycodone had been a substantial factor,
it was scientifically impossible for that oxycodone to
have come from the Percocet pills Michigan alleged
Mr. DeBruyn gave her. See App. 46a-47a.
Despite this exonerative evidence, the Michigan Court of Appeals held that trial counsel were not
ineffective for failing to consult or call appropriate experts. App. 53a-55a. And the Sixth Circuit held that
this decision was owed deference under AEDPA.
App. 19a.
The Sixth Circuit rejected Mr. DeBruyn’s argument that the Michigan Court of Appeals’ decision
was contrary to Harrington and Hinton, which recognize that in certain criminal cases, “the only reasonable . . . defense strategy requires consultation with
6
experts or the introduction of expert evidence.” Harrington, 562 U.S. at 106; Hinton, 571 U.S. at 273;
App. 15a-18a. The court below held that this legal
principle was not articulated at the “appropriate level
of specificity” to constitute “clearly established Federal law” under 28 U.S.C. § 2254(d)(1). App. 14a.
This case therefore presents the question that
has long vexed the lower courts: At what level of specificity must this Court articulate a legal principle for
it to constitute “clearly established Federal law”?
STATEMENT OF THE CASE
Scott Allen DeBruyn was convicted of delivering a controlled substance, oxycodone, to his friend
Camille Gesiakowski, causing her death. App. 1a.
Michigan’s theory of prosecution was that Mr.
DeBruyn bought Percocet pills for his friend, and that
those pills were a “substantial factor” in her death
from a “mixed-drug overdose.” See App. 4a-6a.
At the time of her death, the toxicology report
revealed that Ms. Gesiakowski had four substances in
her system: (1) oxycodone, (2) tramadol, (3) fluoxetine,
and (4) difluroethane. App. 6a-7a. Thus, to convict Mr.
DeBruyn of delivering a controlled substance causing
death, the State was required to prove two things beyond a reasonable doubt: One, Mr. DeBruyn gave Ms.
Gesiakowski oxycodone; and two, the oxycodone was
a “substantial factor” in her death.” App. 5a-6a.
Michigan presented four experts at trial to
prove that oxycodone was a substantial factor in Ms.
7
Gesiakowski’s overdose, while defense counsel presented no experts in rebuttal. See App. 40a, 53a-54a.
Trial counsel did not even consult or retain an independent toxicologist despite the fact that this case
rose and fell on the correct interpretation of Ms.
Gesiakowski’s toxicology report. See App. 53a-54a.
Defense counsel instead countered Michigan’s
theory that the oxycodone was a substantial factor in
Ms. Gesiakowski’s death by cross-examining the
State’s experts in an attempt to undermine their conclusions, and then arguing to the jury that Ms. Gesiakowski could have died from a cause unrelated to oxycodone. See App. 7a. Having only the testimony of
the State’s four expert witnesses to consider regarding Ms. Gesiakowski’s cause of death, however, the
jury unsurprisingly convicted Mr. DeBruyn, and the
judge sentenced him to 198 to 360 months’ imprisonment. App. 8a.
Even though defense counsel’s strategy was to
call into question the State’s experts’ conclusions,
trial counsel failed to consult with (let alone call) an
appropriate expert. See App. 53a-54a. Defense counsel understood that they needed to speak with a toxicologist, testifying at the post-conviction hearing that
they specifically sought one out. But they abandoned
their search after speaking to a pathologist and one of
the State’s toxicologists. See App. 54a. This investigation was inadequate: The State’s own pathologist
acknowledged that interpreting complex toxicology
reports was outside the “area of expertise” of a
8
pathologist. Brief for Appellant at 32, DeBruyn v.
Douglas, 168 F.4th 913 (6th Cir. 2026) (No. 24-1905)
(citing post-conviction hearing testimony). And defense counsel understood that they needed an independent toxicologist to test the State’s toxicologist’s
theory. In a case that turned on the correct reading of
a toxicology report, Mr. DeBruyn’s trial counsel never
consulted the independent toxicologist that they knew
they needed. And without an adequate investigation,
counsel could not make an informed decision about
which defense strategy to pursue.
Mr. DeBruyn appealed his conviction, and the
Michigan Court of Appeals granted his request for a
remand for an evidentiary hearing on his ineffectiveassistance-of-counsel claim. App. 8a.
At this hearing, post-conviction counsel called
two experts: a toxicologist and an addiction psychiatrist. Brief for Appellant at 7, DeBruyn v. Douglas,
168 F.4th 913 (6th Cir. 2026) (No. 24-1905). Both experts testified that it was scientifically “impossible”
for the oxycodone in Ms. Gesiakowski’s system to
have come from Percocet as the State claimed. See
id. at 18. As they explained, given the amount of oxycodone in Ms. Gesiakowski’s system at the time of
her death, if the source of the oxycodone had been
Percocet, one would also expect to see acetaminophen
in her blood given the relative level of both substances
contained in a Percocet pill; yet there was none. Id.;
see App. 46a.
9
Based on their reading of Ms. Gesiakowski’s
toxicology report, these experts also testified to several alternative causes of death, none of which would
have involved oxycodone: (1) serotonin syndrome resulting from the interaction of tramadol and fluoxetine, (2) cardiac arrythmia or sudden death caused by
difluorethane inhalation, and (3) fatal seizure following the abrupt cessation of seizure medication. See
App. 56a. The experts explained that each of these
theories were not only plausible—they were more consistent with the trial evidence than the State’s theory
of the case. Brief for Appellant at 46, DeBruyn v.
Douglas, 168 F.4th 913 (6th Cir. 2026) (No. 24-1905)
The Michigan Court of Appeals rejected Mr.
DeBruyn’s ineffective assistance claim. App. 8a-9a.
Under the reasoning that “[c]ounsel may decide not to
call an expert for strategic reasons, such as when
cross-examination is determined to provide a sufficient means to expose defects in the opinions of the
prosecution’s experts,” the court held that counsel’s
decision to forgo expert evidence in favor of cross-examination was a reasonable strategic choice. People v.
DeBruyn, No. 352274, 2022 WL 981281, at *6 (Mich.
Ct. App. Mar. 31, 2022) (per curiam) (citing Harrington v. Richter, 562 U.S. 86, 111 (2011)). In so holding,
the Michigan Court of Appeals disregarded Harrington’s admonition that in certain cases, cross-examination will not do: “the only reasonable and available de-
10
fense strategy [will] require[ ] consultation with experts or introduction of expert evidence.” 562 U.S. at
106.
The Michigan Supreme Court denied leave to
appeal. App. 9a.
The United States District Court for the Eastern District of Michigan dismissed Mr. DeBruyn’s petition for a writ of habeas corpus, but granted him a
certificate of appealability on his ineffective-assistance-of-counsel claim. App. 9a, 68a-69a.
The Sixth Circuit affirmed the dismissal, rejecting Mr. DeBruyn’s argument that the Michigan
Court of Appeals’ decision was contrary to or an unreasonable application of the rule announced in Harrington. App. 23-24a, 33a; 562 U.S. at 106. Although
Michigan had not made the argument, the Sixth Circuit held that the legal principle announced in Harrington was too “general”—that this Court had “not
adopted [a] hard and fast legal rule” requiring “a lawyer [to] consult a ‘relevant’ expert defense expert before trial in a technical case.” App. 17a-18a. The Sixth
Circuit likewise deemed Hinton inapposite by limiting the relevance of that case to its particular facts.
App. 26a-27a (explaining that Hinton was of no help
because that case concerned counsel failing to present
expert evidence due to a mistaken belief about the
availability of funds).
11
Mr. DeBruyn petitioned for rehearing en banc.
In his petition, he emphasized this Court’s recent reminder that “[g]eneral legal principles can constitute
clearly established law for purposes of AEDPA so long
as they are holdings of this Court.” Andrew v. White,
604 U.S. 86, 95 (2025). He then argued that the legal
principle announced in Harrington and applied in
Hinton—that in some criminal cases “the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence”—
applied with “with obvious clarity” to his case. Harrington v. Richter, 562 U.S. at 106; Hinton v. Alabama,
571 U.S. 263, 273 (2014); Andrew, 604 U.S. at 95
(quoting Taylor v. Riojas, 592 U.S. 7, 9 (2020)). Yet
the court of appeals denied rehearing despite the
panel’s failure to even discuss Andrew, much less explain why it was inapplicable.
12
REASONS FOR GRANTING THE WRIT
The courts of appeals are divided over the level
of specificity at which this Court must define a legal
principle in order for it to constitute “clearly established Federal law” under AEDPA. 28 U.S.C.
§ 2254(d)(1). The confusion flows from the fact that
this Court has provided conflicting guidance.
On one hand, this Court has held that its “holdings that speak only at a high level of generality” cannot constitute clearly established law under AEDPA.
Brown v. Davenport, 596 U.S. 118, 136 (2022).
Yet on the other, it has held that “[g]eneral legal principles can constitute clearly established law
for purposes of AEDPA.” Andrew v. White, 604 U.S.
86, 94 (2022) (emphasis added).
This Court has yet to reconcile these seemingly
conflicting standards. See Andrew, 604 U.S. at 106
(Thomas, J., dissenting) (lamenting that Andrew
“does not once mention, much less distinguish, our
many precedents admonishing lower courts not to define clearly established law too abstractly”). Without
guidance, the circuit courts have adopted diverging
approaches for defining clearly established federal
law.
This a conflict only this Court can resolve, and
this case presents an ideal vehicle for this Court to
provide much-needed clarity.
13
I.
The Courts of Appeals have long been
divided over the level of specificity required to clearly establish federal law
under AEDPA.
As the lower courts have long observed, “confusion surrounds what constitutes ‘clearly established
Federal law’” under AEDPA. Greene v. Palakovich,
606 F.3d 85, 95 (3d Cir. 2010); see also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 905 (3d Cir.
1999) (en banc) (McKee, J., concurring) (“One of the
unresolved issues created by AEDPA is the level of
specificity the Supreme Court must use in fashioning
a rule in order for it to be applied as ‘clearly established Federal law’ under AEDPA.”); Duhaime v. Ducharme, 200 F.3d 597, 602 (9th Cir. 2000) (noting that
the “Supreme Court has not defined ‘clearly established’ law in [the] AEDPA context”) (quoting
MacFarlane v. Walter, 179 F.3d 1131, 1139 (9th Cir.
1999)).
Rather than clarifying the issue, this Court has
muddied the water, announcing competing interpretations regarding the level of specificity at which it
must announce a principle in order for it to be “clearly
established Federal law” under 28 U.S.C. § 2254(d)(1).
Two recent cases from this Court perfectly capture the
conundrum.
Less than five years ago, in Brown v. Davenport,
this Court held that “holdings that speak only at a
14
high level of generality” cannot clearly establish federal law for purposes of AEDPA. 596 U.S. at 136. This
holding was based on prior warnings from the Court
“against ‘framing [its] precedents at such a high level
of generality.’” Lopez v. Smith, 574 U.S. 1, 6 (2014)
(per curiam) (quoting Nevada v. Jackson, 569 U.S.
505, 512 (2013) (per curiam)).
However, just a couple of years after Davenport,
this Court held in Andrew v. White that “[g]eneral legal principles can constitute clearly established law.”
604 U.S. at 94 (emphasis added). This holding flowed
from previous cases explaining that “certain principles are fundamental enough that when new factual
permutations arise, the necessity to apply the earlier
rule will be beyond doubt.” White v. Woodall, 572 U.S.
415, 427 (2014) (quotation marks and brackets omitted). “Section 2254(d)(1) permits a federal court to
grant habeas relief based on the application of a governing legal principle to a set of facts different from
those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
And “AEDPA does not ‘require state and federal
courts to wait for some nearly identical factual pattern before a legal rule must be applied.’” Panetti v.
Quarterman, 551 U.S. 930, 953 (2007) (quoting
Carey v. Musladin, 549 U.S. 70, 81 (2006) (Kennedy,
J., concurring in judgment)).
In his dissenting opinion in Andrew, Justice
Thomas warned that not only are these precedents in
tension, but that the Court also did little to reconcile
15
them. See Andrew, 604 U.S. at 106 (Thomas, J., dissenting). Thus, rather than clarify the confusion
lower courts began complaining of decades ago, this
Court’s most recent cases have only exacerbated it.
Some circuits follow the line of cases culminating in Brown, and narrowly interpret this Court’s instruction that clearly established law must “squarely
address[] the issue” in a petitioner’s case. Wright v.
Van Patten, 552 U.S. 120, 125 (2008). However, other
circuits follow the line of cases culminating in Andrew
and understand that AEPDA allows for courts to apply legal rules announced by this Court to “new factual permutations.” Yarborough v. Alvarado, 541 U.S.
652, 666 (2004). The courts of appeals are intractably
divided over which approach to take.
A. Three circuit courts hold that general
principles do not constitute clearly established law.
Some circuits—like the Sixth Circuit below—
follow the Brown line of cases and require petitioners
to identify “clearly established Federal law” with exacting specificity. These courts either reject general
principles as clearly established law altogether or recognize them only when this Court has applied the
principle in a factually similar case.
For instance, before the Sixth Circuit below,
Mr. DeBruyn identified the following legal principle
previously articulated by this Court: “Criminal cases
16
will arise where the only reasonable and available defense strategy requires consultation with experts or
introduction of expert evidence, whether pretrial, at
trial, or both.” Harrington, 562 U.S. at 106; see
App. 23a. He then emphasized that this Court applied
this principle in a novel factual scenario in the postconviction context. See Hinton, 571 U.S. at 263.
Yet the Sixth Circuit held that Mr. DeBruyn
could not satisfy § 2254(d)(1). The panel, citing Brown,
explained that in identifying a “clearly established”
legal principle, a petitioner “must take care to describe the principle at an appropriate level of specificity.” App. 14a (citing Brown v. Davenport, 596 U.S. at
136). And the Sixth Circuit held that Mr. DeBruyn
failed to make that showing because he had not identified a case from this Court “plainly establish[ing]
that a lawyer must consult a ‘relevant’ defense expert
before trial in a ‘technical’ case.” App. 18a. In other
words, the Sixth Circuit held that the principle announced in Harrington was not “specific” enough to
constitute clearly established federal law. Notably, in
reaching this conclusion, the Sixth Circuit did not
grapple with Andrew and ask whether this case might
qualify as one in which a “[g]eneral legal principle[ ]
can constitute clearly established law” 604 U.S. at 94.
17
Instead, the Sixth Circuit chose to ignore Andrew altogether. Petition for Rehearing En Banc at 1,
DeBruyn, 2026 WL 1642434 (No. 24-1905). 1
The Tenth Circuit similarly follows Brown
while eschewing Andrew. See Martinez v. Quick, 134
F.4th 1046, 1064 (10th Cir. 2025). In Martinez, the
Tenth Circuit decided that this Court’s “broad statement” in Caldwell v. Mississippi, 472 U.S. 320 (1985)
regarding “‘the Eighth Amendment’s heightened need
for reliability in the determination that death is the
appropriate punishment in a specific case’” was too
general to constitute clearly established law. Id. at
1064 (internal quotation marks omitted) (quoting
Woodson v. North Carolina, 428 U.S. 280, 305 (1976)).
The Tenth Circuit reasoned that it could not “extract
clearly established law from the general legal principles developed in factually distinct contexts.” Id. (citation omitted). The court held that petitioner’s claim
that the introduction of a racial slur rendered his sentencing fundamentally unfair “bears no similarity” to
1 The Sixth Circuit continues to enforce this understanding of
Brown while ignoring Andrew outright. It has recently held that
precedents from this Court that speak “‘at a high level of generality’” cannot offer grounds for habeas relief, as “broad language”
does not give sufficiently “clear direction” to state courts. Karacson v. Shaver, 176 F.4th 525, 533 (6th Cir. 2026) (quoting
Brown v. Davenport, 596 U.S. at 136). In another opinion, the
Sixth Circuit similarly held that a petitioner must identify “a
clearly established holding with specificity” in order to obtain
habeas relief. Sanders v. Plappert, 168 F.4th 837, 847 (6th Cir.
2026).
18
the issue in Caldwell, where the prosecutor constitutionally erred by telling the jury that its sentence
would be reviewed for correctness. Id. The Tenth Circuit therefore deemed Caldwell’s “broad” Eighth
Amendment holding inapplicable to the petitioner’s
case given its factual dissimilarity from Caldwell. Id. 2
Thus, even after this Court reminded the Tenth Circuit that general legal principles can constitute
clearly established federal law, the Tenth Circuit has
continued to interpret precedents from this Court as
“limit[ed] to [their] facts.” Andrew, 604 U.S. at 94.
Finally, the Fifth Circuit is in the midst of an
intra-court battle over the interplay between Andrew
and Brown, with a majority following the teachings of
Brown while ignoring the import of Andrew. Take Alvarez v. Guerrero, 162 F.4th 570 (5th Cir. 2025). There,
the Fifth Circuit, citing Brown, held that there was
“no clearly established Supreme Court law” relevant
to a criminal defendant’s ineffective assistance claim
based on undisputed allegations that his lead defense
counsel was sleeping during trial. Id. at 579. The dissenting judge, citing Andrew, argued that the following general principle articulated by this Court should
have applied to the case: “‘when a defendant is deprived of the presence and assistance of his attorney,
2 The Tenth Circuit continues to enforce this view. See Larson v.
Stucker, No. 25-1233, 2026 WL 861682, at *2 (10th Cir. Mar. 30,
2026) (stating that “[h]oldings that speak only at a high level of
generality do not supply clearly established federal law under
AEDPA”) (quoting Martinez, 134 F.4th 1064).
19
either throughout the prosecution or during a critical
stage in, at least, the prosecution of a capital case,’ the
Sixth Amendment is violated.” Id. at 595 (Richman,
J., dissenting) (quoting Holloway v. Arkansas, 435
U.S. 475, 489 (1978)). But the majority disagreed, reasoning that Andrew’s holding is limited both to its
“facts and the precise legal issue” it presented. Id. at
579 (majority opinion).
Similarly demonstrating the Fifth Circuit’s division over this issue, in Holberg v. Guerrero, an
equally divided en banc court vacated a panel opinion
holding that the State’s intentional nondisclosure of a
witness’s confidential informant status violated
clearly established law under Brady v. Maryland. 130
F.4th 493, rev’d en banc, ___ F.4th ___, No. 21-70010,
2026 WL 2364671 (5th Cir. 2025) (mem). In so doing,
the concurring judges opined that this was the correct
result because, when granting habeas relief, the panel
majority “did not identify any case, let alone a Supreme Court case, that ever extended the State’s disclosure obligations to information about a witness’s
providing aid to an officer whose affairs were entirely
disconnected from the defendant’s case.” Holberg v.
Guerrero, ___ F.4th ___, No. 21-70010, 2026 WL
2364671 (5th Cir. 2026). In other words, nine judges
on the Fifth Circuit concluded that the panel had not
identified a specific enough legal principle that was
applicable to Holberg’s case.
These decisions evince how some circuits, following Brown and its doctrinal antecedents, demand
20
from petitioners a level of specificity that will be
nearly impossible to meet. Under their approach, a legal principle expressly announced by this Court does
not constitute clearly established federal law unless
this Court has previously applied that principle to
materially similar facts. That approach effectively
transforms AEDPA’s demanding standard into a requirement that a petitioner identify a Supreme Court
case virtually on all fours with his own—a requirement this Court has repeatedly disclaimed.
Indeed, in the face of lower courts construing
its AEDPA precedents so stingily, this Court reiterated in Andrew that courts of appeals are not “constrained by AEDPA to limit” a case from this Court
“to its facts.” 604 U.S. at 94; see Panetti, 551 U.S. at
953. Yet the above circuits leave little room for (or outright ignore) Andrew’s instruction that general legal
principles can themselves constitute clearly established law and courts can apply previously articulated
legal principles to “new factual permutations.” 604
U.S. at 95 (quoting Yarborough, 541 U.S. at 666).
B. Three jurisdictions hold—in line with
Andrew—that general legal principles
articulated by this Court can constitute clearly established federal law.
By contrast, three circuits have held that general legal principles can constitute clearly established
21
law under AEDPA, following this Court’s reminder in
Andrew v. White, 604 U.S. 86 (2025).
The Ninth Circuit relied on Andrew’s holding
that “[g]eneral legal principles can constitute clearly
established federal law for purposes of AEDPA” to
hold that Arizona’s statutory scheme for child molestation offenses violated the Due Process Clause’s prohibition on burden-shifting. Bieganski v. Shinn, 149
F.4th 1055, 1060, 1069 (9th Cir. 2025) (quoting Andrew, 145 U.S. at 94). The statutory scheme in question defined any “knowing or intentional touching” of
a child as child molestation, requiring a criminal defendant to prove lack of sexual motivation as an affirmative defense by a preponderance of the evidence.
Id. at 1074-75. While noting that the Court’s precedents were “necessarily general prescriptions,” the
Ninth Circuit recognized and applied these general
due process principles as clearly established federal
law. Id. at 1069 (citing Andrew, 145 U.S. at 94).
Even before Andrew confirmed that general legal principles can constitute clearly established federal law, some circuits had already recognized and applied that principle.
For example, the Third Circuit has held that
this Court can state clearly established law “‘in general terms,’” and AEDPA does not require “the full
scope of all clearly established laws to be precisely defined.” Garrus v. Sec’y of Penn. Dep’t of Corr., 694 F.3d
394, 404 (3d Cir. 2012) (quoting Panetti, 551 U.S. at
22
953). In Garrus, the Third Circuit identified the governing clearly established legal principle as Apprendi
v. New Jersey’s holding that any fact “other than the
fact of a prior conviction” must be submitted to a jury
and proved beyond a reasonable doubt if it will increase the penalty beyond the statutory maximum.
530 U.S. 466, 490 (2000); Garrus, 694 F.3d at 405. The
Third Circuit found that the state court had unreasonably applied Apprendi when it permitted the trial
court to determine that Garrus’s prior conviction involved burglarizing an occupied building. Garrus, 694
F.3d at 412. In fact, Garrus had pleaded guilty to second-degree burglary, which requires that the burglarized building was unoccupied. Id. at 404. The Third
Circuit thereby rejected the State’s argument that the
state court’s application of Apprendi cannot be unreasonable just because this Court has never “explicitly
defined the scope of ‘the fact of a prior conviction’ exception.” Id. In other words, the absence of a Supreme
Court holding defining the precise contours of its rule
did not preclude the Third Circuit from applying this
general rule to petitioner’s case. 3
3 In another case, the Third Circuit held that a state court’s de-
cision was an unreasonable application of clearly established
federal law when the state court applied a “more specific standard” used by Pennsylvania courts than the “general principles”
under Strickland. Gregg v. Rockview, 596 F. App’x 72, 76 n.4 (3d
Cir. 2015). This decision again reveals an understanding that
state court decisions can be contrary to or an unreasonable application of general legal principles articulated by this Court—
23
The Eighth Circuit has also affirmed that general principles can constitute clearly established law.
In Marcrum v. Luebbers, the Eighth Circuit applied
the “general principle” of Strickland v. Washington’s
ineffective assistance standard to petitioner’s claim.
509 F.3d 489, 504 (8th Cir. 2007) (citing Strickland v.
Washington, 466 U.S. 668, 688 (1984)). Noting that
this Court has held that “‘even a general standard
may be applied in an unreasonable manner,’” the
Eighth Circuit applied Strickland and the three cases
in which this Court has held that state courts’ application of Strickland were unreasonable to “scrutinize”
trial counsel’s failure to call witnesses and introduce
medical records establishing that petitioner was in a
psychotic state on the night he killed the victim. Id.
at 504-05 (quoting Panetti, 551 U.S. at 953). The
Eighth Circuit thus applied this Court’s clearly established—but broadly articulated—principles under
Strickland to a new context. 4
in that case, the general principles announced in Strickland. Id.
at 76-77.
4 Similarly, in Storey v. Roper, the Eighth Circuit applied general
legal principles to petitioner’s claim that the late disclosure of
victim impact evidence violated his Sixth Amendment rights.
603 F.3d 507, 516 (8th Cir. 2010). Specifically, this Court held in
Apprendi that a defendant is entitled to have a jury decide that
he “is guilty of every element of the crime with which he is
charged, beyond a reasonable doubt,” and that any evidence that
increases a penalty beyond the statutory maximum must be submitted to a jury. Apprendi, 530 U.S. at 490. The Eighth Circuit
then applied this general principle to a factually distinct scenario, holding that under Apprendi, the petitioner had a Sixth
24
These decisions reflect the other side of the divide. Following Andrew and its doctrinal antecedents,
these courts recognize that AEDPA does not require a
petitioner to identify a decision from this Court applying the governing rule to materially similar facts, or
that a legal principle must be articulated with such
specificity that it applies neatly to the facts at hand.
Rather, a principle may be clearly established even
when articulated at a general level, and federal courts
may apply that principle to factual circumstances this
Court has never confronted. See Andrew, 604 U.S. at
94. Thus, unlike the Sixth, Tenth, and Fifth Circuits,
these courts do not treat the absence of a factually
analogous decision from this Court as dispositive. Instead, consistent with Andrew, Panetti, and Yarborough, they ask whether this Court has announced
a governing legal principle that is sufficiently established to apply to a petitioner’s claim.
II.
The question is enormously consequential.
The question presented is enormously consequential. The level of specificity at which this Court
must articulate a legal principle in order for it to constitute clearly established federal law is relevant to
nearly every habeas petition filed in federal court.
And given that Congress specified that only this
Court can clearly established federal law under
Amendment right to notice of victim impact evidence. Storey, 603
F.3d at 516.
25
AEDPA, only this Court can resolve the question of
how clearly its precedents must speak. See 28 U.S.C.
§ 2254(d)(1).
Further militating in favor of review, in addition to the lower courts, this Court has recognized
that this question lacks clarity. Over a decade ago,
this Court conceded that “the difference between applying a rule and extending it is not always clear.”
Yarborough, 541 U.S. at 666. Yet despite this admission, it still has not crystalized how to distinguish between applying a general legal principle to a new context and improperly extending it. And the tension between the conflicting statements in Andrew and
Brown has only further “confuse[d] lower courts.” Andrew, 604 U.S. at 107 (Thomas, J., dissenting).
This petition provides the Court with an excellent vehicle for clarifying the level of specificity necessary to clearly establish federal law under AEDPA.
The question is cleanly presented. Below, Mr.
DeBruyn argued that in Harrington, this Court
clearly established the following legal principle:
“Criminal cases will arise where the only reasonable
and available defense strategy requires consultation
with experts or introduction of expert evidence.” 562
U.S. at 106; App. 23a. And he argued that the Michigan Court of Appeals decision failing to apply this
principle was contrary to or an unreasonable application of clearly established federal law (indeed, the
26
Michigan Court of Appeals ignored the principle altogether). See App. 28a; People v. DeBruyn, No. 352274,
2022 WL 981281 (Mich. Ct. App. Mar. 31, 2022) (per
curiam).
Tellingly, Michigan did not argue below that
the principle announced in Harrington was not specific enough to constitute clearly established federal
law, 5 but the Sixth Circuit rejected Mr. DeBruyn’s petition on that ground anyway. See App. 14a. According to the Sixth Circuit, Mr. DeBruyn had to identify
a decision from this Court that applied precisely to the
facts of his case: “when a prosecution’s case involves
a ‘technical’ issue, defense counsel must consult a ‘relevant’ defense expert before trial to prepare possible
defenses.” App. 17a. Because he did not, the Sixth
Circuit rejected Mr. DeBruyn’s petition as he, in its
view, failed to “take care to describe the principle at
an appropriate level of specificity.” App. 14a.
But therein lies the rub. This Court has given
conflicting advice on the “appropriate level of specificity” needed to satisfy AEDPA. And the answer could
differ depending on whether a court last read Andrew
or Brown. Here, the Sixth Circuit followed its pattern
5 Michigan
instead cited Harrington for a different principle:
that “[i]n many instances cross-examination will be sufficient to
expose defects in an expert’s presentation,” and “[w]hen defense
counsel does not have a solid case, the best strategy can be to say
that there is too much doubt about the State’s theory for a jury
to convict.” 562 U.S. at 111.
27
of choosing to rely on Brown while completely ignoring Andrew. See App. 14a. If the Sixth Circuit had instead followed Andrew and applied the general rule
announced in Harrington to the facts of the case, it
would have been clear that the Michigan Court of Appeals’ disposition was contrary to or an unreasonable
application of clearly established federal law. As explained in more detail below, see infra Section III, the
entire case turned on expert evidence regarding medical cause of death, where Mr. DeBruyn had to rebut
the army of experts the State called to prove its case.
Because the Sixth Circuit’s decision rose and fell on
the level of specificity at which Mr. DeBruyn was able
to articulate clearly established federal law, this case
provides the perfect opportunity for the Court to clarify this long vexing standard.
III.
The Sixth Circuit’s decision is wrong.
The Sixth Circuit’s decision is also wrong. The
court of appeals not only ignored Andrew, which itself
makes it a candidate for summary reversal. It also
disregarded the rule announced in Harrington that
this Court already applied to a novel factual context
in Hinton, proving that the rule announced in Harrington was in fact articulated at “an appropriate
level of specificity” to constitute clearly established
federal law. App. 14a.
Harrington involved an ineffective-assistanceof-counsel claim based on defense counsel’s failure to
28
consult with a forensics expert or introduce expert forensic evidence. 562 U.S. at 106. This Court rejected
the claim, holding that defense counsel made a reasonable strategic decision in pursuing another defense strategy. Id. at 106-07. Along the way, however,
Harrington took pains to observe that in certain criminal cases, “the only reasonable and available defense
strategy requires consultation with experts or introduction of expert evidence.” Id at 106 (emphasis
added). The petitioner’s case in Harrington was just
not one of these cases. See id. at 111.
Then, in Hinton, this Court applied this principle from Harrington to hold that Hinton’s trial attorney performed deficiently. 571 U.S. at 274. In Hinton,
the “State’s case turned on whether its expert witnesses could convince the jury” that the bullets recovered at the crime scenes had come from a revolver belonging to petitioner’s mother. Id. at 264-65. Drawing
from Harrington, Hinton explained that given that
“the core of the prosecution’s case was the state experts’ conclusion” about the ballistics evidence, “effectively rebutting that case required a competent expert
on the defense side.” Id. at 273 (citing Harrington, 562
U.S. at 106).
Hinton is a blueprint for how habeas courts
should apply previously articulated legal principles to
new factual contexts. The facts of Harrington and
Hinton are undoubtedly distinct. Still, Hinton discerned that “[t]his was such a case” where the princi-
29
ple announced in Harrington applied. Id. at 273. Indeed, the unanimous Court in Hinton understood itself as doing nothing more than conducting “a
straightforward application of [its] ineffective-assistance-of-counsel precedents.” Id. at 272.
In addition to refusing to apply Harrington, the
Sixth Circuit articulated a cramped reading of Hinton
that unduly cabins what counts as clearly established
law. The court of appeals interpreted Hinton as standing for the narrow principle that it is “unreasonable
for an attorney not to seek funding for an expert witness where that failure was based not on a strategic
choice but on a mistaken belief about the availability
of funds.” App. 27a. Yet the fact that a defense attorney’s failure to request additional funds was constitutionally deficient in Hinton does not mean that this is
the only scenario in which the Harrington principle
applies. This narrow reading of this Court’s precedent
ignores the fact that Hinton was “such a case” in
which the broader legal principle articulated in Harrington governed. Hinton, 571 U.S. at 273. In fact, the
Court’s application of Harrington’s principle to a factually distinct context indicates the generally applicable nature of the rule.
Had the Sixth Circuit faithfully followed Harrington and Hinton, it would have found the Michigan
Court of Appeals’ disposition of Mr. DeBruyn’s ineffective-assistance-claim to be an unreasonable application of clearly established federal law. Yet the Sixth
30
Circuit did not even recognize the principle in Harrington as clearly established law, let alone analyze
whether the state court’s application of it was unreasonable.
Just as in Hinton, the “core of the prosecution’s
case was state experts’ conclusions.” 506 U.S. at 273.
Yet, as in Hinton, trial counsel “failed to make even
the cursory investigation” required to “present an effective defense.” Id. at 274. And like in Hinton, trial
counsel recognized that Mr. DeBruyn’s “defense
called for an effective rebuttal of the State’s expert
witnesses,” Id. at 266, and thus “required a competent
expert on the defense side.” Id. at 273. Indeed, the
need for a competent defense expert was even clearer
because in Hinton, the State called only two experts,
id. at 268; here, the State called four. See App. 40a.
The only differences were that in Hinton, the
experts were opining on ballistics, whereas here, they
were opining on toxicology. And in Hinton, trial counsel’s expert’s inadequate investigation led him to
make an “inexcusable mistake of law” regarding how
much funding he could obtain. Id. at 275. But here,
Mr. DeBruyn’s trial counsel’s inadequate investigation was the failure to pick up the phone to speak with
an appropriate expert, resulting in the failure to consult or retain an expert they were actively seeking out
whom they knew would be necessary to present an adequate defense.
31
In fact, what happened here is more egregious
than Hinton. In Hinton, defense counsel at least
called an expert to meet the force of the state’s experts,
but defense counsel knew that expert was inadequate.
Id. at 274-75. By contrast here, defense counsel called
no experts to meet the force of the State’s four experts
who opined on Ms. Gesiakowski’s cause of death.
App. 53a-54a. And this was despite the fact that trial
counsel’s strategy was to dispute the State’s experts’
conclusions and affirmatively suggest alternative
causes of death. While Hinton’s counsel failed to present an adequate expert due to his mistake of law, Mr.
DeBruyn’s counsel failed to conduct an adequate investigation and thus failed to consult, retain, or call
any qualified expert for no good reason at all.
Finally, just as in Hinton, it is clear that competent defense experts would have made a difference.
In Hinton, three experts testified in post-conviction
proceedings, and each challenged the State’s experts’
conclusions. See id. at 271. Here, two experts did the
same, except they testified in more emphatic terms—
not only did they disagree with the State’s experts,
they testified that the State’s experts’ conclusions
were contrary both to the evidence and to science. See
App. 46a.
Hinton is thus identical to Mr. DeBruyn’s case
in all material respects. This case is the epitome of
one “where the only reasonable . . . defense strategy
require[d] consultation with experts or introduction of
expert evidence.” Harrington, 571 U.S. at 273. But by
32
unduly heightening the standard for clearly established law under § 2254(d)(1), the Sixth Circuit failed
to see this.
The Sixth Circuit’s decision is also impossible
to square with this Court’s analysis in Andrew.
In Andrew, this Court held that at the time of
the Oklahoma state court’s decision, “clearly established law provided that the Due Process Clause forbids the introduction of evidence so unduly prejudicial
as to render a criminal trial fundamentally unfair,”
citing the general legal principle it had articulated in
Payne v. Tennessee, 501 U.S. 808, 825 (1991). Andrew,
604 U.S. at 96. Payne concerned whether the Eighth
Amendment prohibits a capital sentencing jury from
considering victim impact evidence. 501 U.S. at 817.
The question was whether this legal principle applied
in the factually distinct context raised by Andrew,
namely the admissibility of evidence about Andrew’s
sex life and characteristics as a wife and mother. See
Andrew, 604 U.S. at 87-88. This Court held that the
Tenth Circuit “erred by refusing to even consider
whether the [state court] unreasonably applied established due process principles to Andrew’s case,” and
that it was mistaken in “limit[ing] Payne to its facts.”
Id. at 94-95.
The Sixth Circuit committed similar errors. It,
too, mistakenly limited Harrington and Hinton to
their facts, and “erred by refusing to consider whether”
the Michigan Court of Appeals unreasonably applied
33
the Sixth Amendment principles established by those
cases to the facts here. Andrew, 604 U.S. at 95. Because the Sixth Circuit “never considered whether the
state court’s application of that law was unreasonable,” id. at 95-96, and in fact, failed to consider Andrew at all, at a minimum, this Court should grant
the petition, vacate the judgment of Sixth Circuit, and
remand for the Sixth Circuit to “conduct that inquiry
in the first instance.” Id.
***
Due to Mr. DeBruyn’s counsel’s deficient performance, the jury never heard defense experts testify
that Michigan’s theory of the case was not only improbable, but impossible. This exculpatory evidence
posed far more than the “[u]ncertainty” of guilt that
“cannot be squared with the beyond-a-reasonabledoubt standard applicable in criminal trials.” Burrage
v. United States, 571 U.S. 204, 218 (2014) (Scalia, J.).
It means that the jury never heard from experts who
would have explained that Mr. DeBruyn is innocent
of the crime the State charged him with committing.
This Court has repeatedly recognized “the injustice that results from the conviction of an innocent
person,” Schlup v. Delo, 513 U.S. 298, 324-25 (1995),
and has stated that innocence claims lie “‘close to the
core of habeas corpus.’” Fernandez v. United States,
608 U.S. 411 (2026) (quoting Preiser v. Rodriguez, 411
U.S. 475, 489 (1973); see also Lefkowitz v. Newsome,
420 U.S. 283, 303 (1975) (Powell, J., dissenting) (“The
34
historic and honored purpose of habeas corpus, and
indeed its only justification, is to provide the added
assurance to a free society that no innocent person
will suffer an unconstitutional deprivation of liberty.”). But because of the Sixth Circuit’s erroneous
view of what constitutes clearly established federal
law under AEDPA, no federal court has decided the
merits of Mr. DeBruyn’s constitutional claim.
Allowing lower courts to refuse to apply legal
principles announced by this Court would flout
AEDPA’s text, which makes this Court the sole source
of “clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). Without further guidance from this
Court about what constitutes clearly established law,
lower courts will continue to uphold state-court decisions even when a petitioner has suffered a constitutional violation, not because the state court’s reasoning survives AEDPA deference, but because the lower
court failed to identify the correct governing legal
principle in the first place.
CONCLUSION
For the foregoing reasons, this Court should
grant the petition for a writ of certiorari to clarify the
level of specificity at which its precedents must speak
to clearly establish federal law under AEDPA. Alternatively, it should grant the petition, vacate the Sixth
Circuit’s decision, and remand for the Sixth Circuit to
consider how this Court’s decision in Andrew v. White
impacts its analysis of this case.
35
Respectfully submitted,
Daniel S. Harawa
Counsel of Record
NEW YORK UNIVERSITY
SCHOOL OF LAW
FEDERAL APPELLATE CLINIC
245 Sullivan Street
Fifth Floor
New York, NY 10012
daniel.harawa@nyu.edu
(212) 998-6420
Counsel for Petitioner
September 17, 2026
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — AMENDED OPINION OF
T H E U N I T ED S TAT E S C OU RT OF
A PPEALS FOR THE SIXTH CIRCUIT,
FILED MARCH 5, 2026 . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — AMENDED JUDGMENT OF
T H E U N I T ED S TAT E S C OU RT OF
A PPEALS FOR THE SIXTH CIRCUIT,
FILED MARCH 5, 2026 . . . . . . . . . . . . . . . . . . . . . 34a
APPENDIX C — OPINION AND ORDER OF
T H E U N I T E D S T A T E S DI S T R IC T
COURT FOR THE EASTERN DISTRICT
OF MICHIGAN, SOUTHERN DIVISION,
FILED JUNE 28, 2024 . . . . . . . . . . . . . . . . . . . . . . 36a
APPENDIX D — DENIAL OF REHEARING
EN BA NC OF THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT, FILED MAY 4, 2026 . . . . . . . . . . . . . . . 70a
1a
APPENDIX A — AMENDED
Appendix AOPINION OF THE
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED MARCH 5, 2026
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 24-1905
SCOTT ALLEN DEBRUYN,
Petitioner-Appellant,
v.
ADAM DOUGLAS, WARDEN,
Respondent-Appellee.
Appeal from the United States District Court for the
Eastern District of Michigan at Flint.
No. 4:23-cv-10219—Shalina D. Kumar, District Judge.
Argued: June 12, 2025
Decided and Filed: March 5, 2026
Before: THAPAR, READLER, and BLOOMEKATZ,
Circuit Judges.
AMENDED OPINION
READLER, Circuit Judge. A Michigan state jury
convicted Scott Allen DeBruyn of delivering oxycodone
to his friend, causing her death. Following the verdict,
DeBruyn filed a motion for a new trial claiming that
2a
Appendix A
he received ineffective assistance of counsel. The state
courts denied his claims on the merits. He then petitioned
for a writ of habeas corpus in federal court, renewing
the same claims. The district court denied his petition.
Because DeBruyn cannot surmount the requirements
in the Antiterrorism and Effective Death Penalty Act of
1996, we affirm.
I.
A. On April 12, 2017, upon waking up in his hotel
room after a night of drinking, Scott DeBruyn found his
friend Camille Gesiakowski slumped over the edge of her
bed, her eyes open. He left the room and walked to the
hotel’s front desk, where he said to an employee, “I think
we’re going to need an ambulance.” Jury Trial Tr., R.7-9,
PageID 894-95. When medical personnel arrived, they
confirmed that Gesiakowski was dead, having experienced
a drug overdose.
An ensuing investigation by law enforcement revealed
the following. DeBruyn had known Gesiakowski since she
was a teenager; she used to date his son. Then, sometime
in 2015, DeBruyn began having sex with her. According to
one of DeBruyn’s trial lawyers, the two may not have had
“the healthiest” relationship. Jury Trial Tr., R.7-7, PageID
473. DeBruyn was in his fifties, had no job, and lived at
his mom’s house. Gesiakowski was in her twenties and
struggled with drug addiction—oxycodone in particular.
DeBruyn fueled her habit, providing her drugs and telling
her they would make her feel better.
3a
Appendix A
Gesiakowski did a stint in county jail from August
25, 2016, until April 7, 2017. She died five days after she
was released, again, in a hotel room with DeBruyn. This
case centers on what happened in the days leading up to
her passing.
Between April 1 and April 6, Gesiakowski had
seven phone calls with DeBruyn from jail. During these
recorded calls, DeBruyn asked Gesiakowski to “hang out”
after she was released, promising her that they would “be
partners in crime” “like old times.” Jury Trial Tr., R.7-8,
PageID 726, 734, 736. He also told her he would get her
the “good stuff” once she returned home, which prompted
several discussions about oxycodone. Id. at PageID 730.
During one call, for example, Gesiakowski told
Debruyn, “I wish I . . . could take an oxy right now. I’ve
got the worst headache ever”; “I can’t wait to do some
oxy”; “I just wish I could take a fricking oxy.” Jury Trial
Tr., R.7-9, PageID 1033-34. DeBruyn replied, “I’ve got
some. There’s [just] no way I can get them to ya [now].”
Id. at PageID 1034. During another call, Gesiakowski told
DeBruyn that she could not “wait to take some oxys.” Jury
Trial Tr., R.7-8, PageID 730. DeBruyn replied, “Yeah, . . .
I’ve got some.” Id. And in a third call, Gesiakowski said to
DeBruyn that she wanted “to take an oxy so bad.” Jury
Trial Tr., R.7-9, PageID 1090. DeBruyn replied, “Yeah,
I’ve got some of them . . . we’ll hook up [when you get home]
and do some partying.” Id.
In the morning on April 7, DeBruyn picked Gesiakowski
up from jail. He took her to a Walmart, bought cans of air
4a
Appendix A
duster, and then took her to his home. Air duster, it bears
noting, contains the chemical difluoroethane. While air
duster is commonly used to clean computer keyboards,
people can abuse the product by inhaling difluoroethane,
which gives off a “euphoric affect.” Jury Trial Tr., R.7-7,
PageID 500.
Later in the day, Gesiakowski’s sister, Celia, came to
believe that her sister had gone home with DeBruyn. So
she went to DeBruyn’s home to find her. When she arrived,
Celia discovered Gesiakowski sleeping. Alcohol, empty
pill bottles, and air duster cans covered the ground. Celia
shook her sister awake. Gesiakowski woke up “delirious”
and asked Celia, “Where am I[?]” Jury Trial Tr., R.7-9,
PageID 902-03. Celia rushed her sister home and begged
her not to see DeBruyn again.
For the next two nights, Gesiakowski stayed with her
family. Yet she exchanged several messages with DeBruyn
over Facebook. Gesiakowski asked DeBruyn if he could
get her “oxys.” Jury Trial Tr., R.7-8, PageID 754. She
even called him a “sugar coating liar” because he had not
yet made good on his promise to get her the drug. Id. at
PageID 763. DeBruyn reassured Gesiakowski, telling her
that his friend, Lona Daniels, was “bringing” him “oxys.”
Id. at PageID 754. So, he said, he would soon have “all the
stuff,” the “good pills.” Id. at PageID 765.
Gesiakowski reunited with DeBruyn at his home on
April 9. The following afternoon, DeBruyn bought 40
Percocet pills from Daniels. Percocet has two ingredients:
oxycodone (an opioid) and acetaminophen (Tylenol). Less
5a
Appendix A
than one hour after he purchased the Percocet pills,
DeBruyn took a picture on his phone of a pill with the
inscription “A333.” A333 can refer to a drug (usually,
Percocet) containing oxycodone and acetaminophen.
The next day, April 11, DeBruyn and Gesiakowski took
a taxi to a Walmart, where they bought several cans of air
duster. They then rented a room at a Baymont Inn. The
following morning, DeBruyn woke and found Gesiakowski
dead. She had oxycodone in her blood and acetaminophen
in her urine, the ingredients of Percocet.
When officers arrived on scene, DeBruyn told them
what had happened. Gesiakowski inhaled a lot of air duster
on April 11. They went to bed at around eight o’clock that
night. Throughout the night, Gesiakowski “kept getting up
and laying back down.” Jury Trial Tr., R.7-8, PageID 628.
She complained of being “hot” and had “turned down” the
temperature in the room to “almost zero.” Id. at PageID
634-35. She even stripped off most of her clothes because
she was so hot. The last time DeBruyn saw Gesiakowski
awake was three o’clock in the morning, on April 12. When
asked if Gesiakowski had a history of using any drugs,
including “[p]ills,” DeBruyn said, “Not that I know of.”
Id. at PageID 631.
B. Michigan charged DeBruyn with delivering
Gesiakowski a controlled substance, causing her death.
Mich. Comp. Laws Ann. § 750.317a. To convict on this
charge, the State had to show two things: One, that
DeBruyn gave Gesiakowski oxycodone (a controlled
substance); and two, that the oxycodone was a “substantial
6a
Appendix A
factor” in her death. People v. DeBruyn, No. 352274, 2022
Mich. App. LEXIS 1798, 2022 WL 981281, at *5 (Mich.
Ct. App. Mar. 31, 2022) (per curiam).
At trial, the State sought to show that DeBruyn gave
Gesiakowski oxycodone in the form of Percocet. In the
days leading up to, and after, her April 7 release from
jail, Gesiakowski asked DeBruyn for oxycodone several
times. Then, on April 10, DeBruyn purchased 40 Percocet
pills, which contains oxycodone and acetaminophen. Less
than an hour later, DeBruyn took a picture on his phone
of a pill with the inscription “A333,” which can refer
to oxycodone and acetaminophen. The next day, April
11, DeBruyn and Gesiakowski went to a hotel room for
the night. Gesiakowski was found dead the following
morning. Medical personnel confirmed that she died
from a drug overdose. She had oxycodone in her blood
and acetaminophen in her urine, the two ingredients of
Percocet. Taken together, these uncontradicted facts,
the State argued, showed that DeBruyn gave oxycodone
to Gesiakowski, who died after consuming the drug.
As the State described these events during closing
arguments, “[t]here is simply no other explanation as
to how [Gesiakowski] could have gotten her hands on
any [oxycodone] independent of Scott DeBruyn” and his
Percocet. Jury Trial Tr., R.7-11, PageID 1545.
Next, the State presented expert witness testimony
to demonstrate that the oxycodone found in Gesiakowski’s
blood was a substantial factor in her death. Gesiakowski
died from a “mixed-drug” overdose caused by four
drugs/chemicals in her blood: (1) oxycodone (an opioid),
7a
Appendix A
(2) tramadol (an opioid), (3) fluoxetine (Prozac), and
(4) dif luoroethane (a chemical). Was the oxycodone
a substantial factor in her death? Yes, two experts
explained. To begin with, Gesiakowski probably had little,
if any, tolerance to oxycodone at the time of her death,
as she had not had access to the drug from August 2016
(when she went to jail) until April 10 (the day DeBruyn
bought her Percocet pills). Gesiakowski also had 180
nanograms per milliliter of oxycodone in her blood, an
amount approximately five times the therapeutic range.
From this record, the experts said, oxycodone was easily
a substantial factor in Gesiakowski’s death; in fact, the
drug alone could have killed Gesiakowski by causing
respiratory failure. The prosecution summed up the
expert testimony this way during closing arguments:
“[W]e know . . . that oxycodone was a contributing cause
and a substantial cause and could have, in and of itself,
all alone, killed her.” Jury Trial Tr., R.7-11, PageID 1544.
DeBruyn’s lawyers countered that the State had
failed to prove beyond a reasonable doubt that oxycodone
was a substantial factor in Gesiakowski’s death. Counsel
presented this defense via cross-examination of the State’s
experts. They began by getting one of the experts to
acknowledge that it is “difficult” (if not impossible) “to tease
out, exactly” the extent to which oxycodone contributed to
Gesiakowski’s death. Jury Trial Tr., R.7-7, PageID 532.
They then presented evidence that Gesiakowski could have
died from something unrelated to oxycodone. Specifically,
counsel suggested that Gesiakowski could have died from
either serotonin syndrome (i.e., high body temperature
due to the combined effect of the tramadol and fluoxetine
8a
Appendix A
in her blood) or an arrhythmia (i.e., a fatal heart problem
caused by inhaling too much difluoroethane). DeBruyn’s
lawyers, in short, argued that (1) nothing in the record
conclusively proved that oxycodone was a substantial
factor in Gesiakowski’s death and (2) Gesiakowski could
have died from something unrelated to oxycodone.
“Causation,” DeBruyn’s lawyers emphasized, “is a very
important thing” that the State failed to prove “beyond
a reasonable doubt.” Jury Trial Tr., 7-11, PageID 1559.
DeBruyn’s defense, however, failed to convince his
jury, which convicted him of delivering Gesiakowski a
controlled substance causing her death. The trial court
later sentenced him to at least 198 months (16.5 years)
in prison.
C. DeBruyn appealed his conviction and requested
a Ginther hearing—the Michigan vehicle for developing
facts to support an ineffective assistance claim. See People
v. Ginther, 390 Mich. 436, 212 N.W.2d 922, 925 (Mich.
1973). The state court of appeals granted his request and
remanded the case to the trial court.
The trial court held a two-day Ginther hearing.
DeBruyn presented two expert witnesses and examined
the State’s trial experts. Based on the evidence presented
at the hearing, DeBruyn constructed two ineffective
assistance of counsel claims, which he later raised in a
motion for a new trial.
First, DeBruyn claimed, his lawyers performed
ineffectively by failing to investigate before trial what he
9a
Appendix A
calls “an acetaminophen-based defense.” Appellant Br.
31. At its core, this defense maintains that Gesiakowski
did not consume oxycodone in the form of Percocet,
as the State had alleged at trial, because she had no
acetaminophen (an ingredient of Percocet) in her blood
at the time of her death. The State responded that the
absence of acetaminophen in Gesiakowski’s blood was
consistent with the prosecution’s theory of the case:
Gesiakowski consumed Percocet on April 10/11 and
excreted the drug’s acetaminophen into her urine by the
time of her April 12 death.
Second, DeBruyn claimed, his lawyers performed
ineffectively by failing to call an expert at trial to enhance
his defense that oxycodone was not a substantial factor in
Gesiakowski’s death. In response, the State argued that
DeBruyn’s trial did not require the use of experts by the
defense; rather, the State said, DeBruyn’s lawyers were
able to effectively present their arguments through crossexamination of the State’s experts.
The trial court rejected DeBruyn’s claims. The
Michigan Court of Appeals affirmed. DeBruyn, 2022
Mich. App. LEXIS 1798, 2022 WL 981281, at *10. And the
Michigan Supreme Court denied leave to appeal. People
v. DeBruyn, 510 Mich. 877, 978 N.W.2d 836 (Mich. 2022)
(mem.). Falling short in state court, DeBruyn petitioned
for a writ of habeas corpus in federal court. The district
court denied his petition. Debruyn v. Douglas, No. 2310219, 2024 U.S. Dist. LEXIS 114870, 2024 WL 3236306,
at *12 (E.D. Mich. June 28, 2024). That decision prompted
this appeal.
10a
Appendix A
II.
DeBruyn renews the same ineffective assistance
claims here: His lawyers wrongly failed to investigate an
acetaminophen-based defense before trial, and wrongly
failed to call an expert witness at trial. To prevail in this
habeas setting, DeBruyn faces a steep climb. Start with
the challenge in proving a Sixth Amendment violation.
DeBruyn must show that his lawyers performed so
incompetently that they in effect deprived him of his
right “to have the Assistance of Counsel for his defen[s]e.”
U.S. CONST. amend. VI. Making that showing requires
DeBruyn to prove both that his lawyers performed
deficiently, and that their performance prejudiced the
outcome of his trial. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To
demonstrate deficient performance, DeBruyn must show
that his lawyers made objectively unreasonable decisions,
considered under all the circumstances. Id. at 688. This
is a high standard. We start with “a strong presumption”
that his lawyers gave “reasonable professional assistance.”
Id. at 689. We then engage in a “highly deferential” review
of their actual performance, asking only whether they
made objectively reasonable decisions. Id. If DeBruyn
can satisfy the performance element, he must also show
that he suffered prejudice as a result of his lawyers’
performance. To do so, he must prove a “substantial,” (not
“just [a] conceivable,”) likelihood that, but for his lawyers’
performance, he would not have been convicted at trial.
Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011). In short, Strickland demands
that DeBruyn show that he suffered prejudice as a result
of his counsel’s deficient performance.
11a
Appendix A
Yet DeBruyn’s burden is increased further still,
for he must satisfy these Strickland elements against
the backdrop of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Through AEDPA, Congress
imposed strict limitations on federal courts considering
habeas petitions from state prisoners. AEDPA constrains
our review of “any claim that was adjudicated on the
merits in state court.” 28 U.S.C. § 2254(d). Here, the
state courts denied DeBruyn’s claims on the merits,
so AEDPA applies. As a result, to surmount AEDPA,
DeBruyn must fit his claims into one of the statute’s
narrow paths to federal habeas relief. He can try to show
that the state court’s adjudication of the relevant claim
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1). Or he can try to show that the state court’s
decision was “based on an unreasonable determination of
the facts.” Id. § 2254(d)(2).
Before reaching those issues, we pause to consider
a preliminary matter. DeBruyn argues that AEDPA’s
standard of review violates Article III of the Constitution
because it transfers federal judicial power to state
courts. DeBruyn also contends that AEDPA’s standard
of review violates the Supreme Court’s decision in Loper
Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S.
Ct. 2244, 219 L. Ed. 2d 832 (2024). But binding cases in
our Circuit have already considered these arguments
and rejected them. Section 2254(d) limits the power of
federal courts to issue the writ of habeas corpus to state
prisoners. The statute instructs federal courts that they
may issue the writ to prisoners held under a state court
12a
Appendix A
judgment only in limited circumstances: relevant here,
when a state court adjudication of a claim on the merits
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Supreme
Court precedent, or was based on an unreasonable
determination of the facts. 28 U.S.C. § 2254(d). Article
III does not prevent Congress from allowing state courts
to adjudicate constitutional claims. Sanders v. Plappert,
168 F.4th 837, 2026 U.S. App. LEXIS 6233, 2026 WL
593932, at *8-9 (6th Cir. Mar. 3, 2026); Bowling v. Parker,
882 F. Supp. 2d 891, 898-900 (E.D. Ky. 2012) (Thapar, J.).
Nor does § 2254(d) authorize state courts to perform any
judicial function, let alone a federal one. See Sanders, 2026
U.S. App. LEXIS 6233, 2026 WL 593932, at *7-8. For
these reasons, it is difficult to see how AEDPA transfers
federal judicial power to state courts.
Loper Bright does not change matters. There, the
Supreme Court held that the Administrative Procedure
Act, a federal law governing the basic contours of federal
agency action, requires federal courts to exercise
independent judgement in determining whether a federal
agency has acted within its statutory authority. Id. at 2273.
We will not dwell on DeBruyn’s argument that Loper
Bright requires us to strike down AEDPA’s standard of
review. We have held that it clearly does not. Sanders,
2026 U.S. App. LEXIS 6233, 2026 WL 593932, at *7-8,
10 (explaining why AEDPA is constitutional after Loper
Bright); see also Miles v. Floyd, No. 24-1096, 2025 U.S.
App. LEXIS 7146, 2025 WL 902800, at *3 (6th Cir. Mar.
25, 2025) (making similar arguments). We will instead
repeat what was said above: Neither Loper Bright nor
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Appendix A
DeBruyn’s argument about transferring federal judicial
power to state courts prohibit Congress from setting
standards for when federal courts may issue the writ of
habeas corpus to state prisoners.
A. Turn now to the merits, starting with DeBruyn’s
claim that his attorneys performed ineffectively by failing
to investigate an “acetaminophen-based defense” before
trial. Appellant Br. 31. The state court of appeals denied
this claim both for lack of deficient performance and
prejudice, so AEDPA’s highly deferential standard of
review applies. Rayner v. Mills, 685 F.3d 631, 638 (6th
Cir. 2012). And DeBruyn’s claim fails under AEDPA, as he
has not shown that the state court decision unreasonably
applied Supreme Court precedent or turned on an
unreasonable determination of the facts.
Performance. The state court of appeals held that
DeBruyn’s lawyers were not constitutionally ineffective
in foregoing any investigation into an acetaminophenbased defense before trial. The court reasoned that
counsel’s “determination of trial strategy”—including
“decisions about which defenses and arguments to
present” at trial—”did not fall below an objective standard
of reasonableness.” DeBruyn, 2022 Mich. App. LEXIS
1798, 2022 WL 981281, at *5, *7. Disagreeing with that
conclusion, DeBruyn contends that the state court’s
decision “involved an unreasonable application of[]
clearly established Federal law,” entitling him to relief
under AEDPA. 28 U.S.C. § 2254(d)(1). To succeed on that
claim, DeBruyn must follow a well-trodden path. He must
initially identify a legal principle “clearly established” by
14a
Appendix A
a decision of the Supreme Court. For a legal principle to
be “clearly established,” it must originate from a Supreme
Court holding, and not from its dicta. White v. Woodall,
572 U.S. 415, 419, 134 S. Ct. 1697, 188 L. Ed. 2d 698 (2014).
And in identifying the “clearly established” legal principle
on which he relies, DeBruyn must take care to describe
the principle at an appropriate level of specificity. Brown
v. Davenport, 596 U.S. 118, 142 S. Ct. 1510, 1525, 212 L.
Ed. 2d 463 (2022).
DeBruyn characterizes the relevant legal principle as
follows: Defense counsel “has a constitutional obligation
to reasonably investigate possible defenses” before trial.
Appellant Br. 31. That purported principle is helpful
only insofar as it goes. True, counsel must undertake
a “thorough investigation of law and facts relevant
to plausible options” for the defense. Strickland, 466
U.S. at 690. But Strickland does not require counsel
to investigate every conceivable defense. Id. at 690-91.
Instead, counsel’s defense strategy must be supported
by a “reasonable professional judgment[],” measured
by “all the circumstances.” Id. at 691. Where, as here, a
petitioner argues that his counsel failed to investigate
a defense before trial, we ask only whether counsel
made a “reasonable” defense “decision,” one that made
“particular investigations unnecessary.” Id. If a counsel’s
“choices” about defense strategy are reasonable “based on
predictions of how . . . trial [might] proceed,” we may not
second guess those “choices.” Premo v. Moore, 562 U.S.
115, 132, 131 S. Ct. 733, 178 L. Ed. 2d 649 (2011). Through it
all, we must “affirmatively entertain the range of possible
reasons” defense counsel “may have had for proceeding
15a
Appendix A
as [she] did.” Cullen v. Pinholster, 563 U.S. 170, 196, 131
S. Ct. 1388, 179 L. Ed. 2d 557 (2011) (citation modified).
On top of that, AEDPA requires DeBruyn to show that
the state court unreasonably applied these principles to
the facts underlying his claim. 28 U.S.C. § 2254(d)(1). To
do that, he must demonstrate that the state court decision
was “so obviously wrong that its error lies beyond any
possibility for fairminded disagreement.” Shinn v. Kayer,
592 U.S. 111, 141 S. Ct. 517, 523, 208 L. Ed. 2d 353 (2020)
(per curiam) (citation modified). So if “disagreement is
possible,” DeBruyn’s “claim must be denied.” Sexton v.
Beaudreaux, 585 U.S. 961, 965, 138 S. Ct. 2555, 201 L. Ed.
2d 986 (2018) (per curiam). In other words, DeBruyn must
show that “every fairminded jurist would agree that” his
lawyers performed deficiently. Dunn v. Reeves, 594 U.S.
731, 141 S. Ct. 2405, 2411, 210 L. Ed. 2d 812 (2021) (per
curiam) (citation modified). In making that assessment, we
must remember that, under AEDPA, “the more general
the rule, the more leeway state courts have” when applying
the rule to a defendant’s specific facts. Sexton, 585 U.S. at
968 (citation modified). And as Strickland’s performance
standard is generally defined, the state court had wide
“latitude” in holding that DeBruyn’s lawyers performed
competently. Knowles v. Mirzayance, 556 U.S. 111, 123,
129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009).
DeBruyn’s claim fails. A fairminded jurist could
conclude that his trial attorneys, based on a reasonable
prediction of how trial might proceed, pursued a reasonable
defense strategy, one that made any investigation into
an acetaminophen-based defense unnecessary. That
16a
Appendix A
defense would have challenged a key premise of the
State’s case, namely, that Gesiakowski took oxycodone
in the form of Percocet. Gesiakowski, the theory goes,
could not have consumed Percocet because she had no
acetaminophen in her blood. Yet DeBruyn’s lawyers had
good reason to presume that Gesiakowski consumed
Percocet. The uncontradicted facts show why. Before
and after her release from jail, Gesiakowski repeatedly
asked DeBruyn for oxycodone. Each time, DeBruyn
reassured Gesiakowski that he would get her the drug.
Then, on April 10, DeBruyn purchased 40 Percocet pills.
Percocet contains oxycodone and acetaminophen. Less
than an hour after the purchase, DeBruyn took a picture
on his phone of a pill with the inscription “A333,” which
can refer to oxycodone and acetaminophen. The next day,
DeBruyn and Gesiakowski went to a motel room for the
night. Gesiakowski was found dead the following morning.
She had oxycodone in her blood and acetaminophen in her
urine—Percocet’s two ingredients.
On this record, a fairminded jurist could conclude
that DeBruyn’s lawyers made a “reasonable []calculation”
about “how the trial would proceed”: The jury would find
that Gesiakowski consumed oxycodone in the form of
Percocet before her death. Harrington, 562 U.S. at 110;
Premo, 562 U.S. at 132 (citing Harrington, 562 U.S. at
107-08).
In light of the strong evidence that Gesiakowski
took Percocet, a fairminded jurist could conclude that
DeBruyn’s lawyers “ma[de] a reasonable decision” about
how to defend their client. Strickland, 466 U.S. at 691.
17a
Appendix A
DeBruyn’s lawyers challenged the second premise of the
State’s case—that oxycodone was a substantial factor in
Gesiakowski’s death. From information gathered from
the State’s experts before trial, DeBruyn’s counsel made
the following arguments. One, nothing in the record
conclusively proved that oxycodone was a substantial factor
in Gesiakowski’s death. Two, Gesiakowski could have died
from either serotonin syndrome (i.e., increased body
temperature due to the combined effect of tramadol and
fluoxetine in her blood), or an arrhythmia (i.e., an irregular
heartbeat caused by inhaling too much difluoroethane).
In short, the theory goes, because Gesiakowski’s cause
of death could have been unrelated to oxycodone, the
State had failed to prove beyond a reasonable doubt that
oxycodone was a substantial factor in her death. Defense
lawyers do not perform incompetently by choosing to
train their efforts on a reasonable defense challenging a
necessary premise of the prosecution’s case. Cf. Cullen,
563 U.S. at 196 (citation modified) (instructing that we
must entertain any possible reason DeBruyn’s lawyers
may have had for not investigating a potential defense).
Thus, DeBruyn has not shown that the state court of
appeals unreasonably applied clearly established federal
law.
DeBruyn’s counterarguments do not change matters.
Start with the “clearly established” legal principle
he urges—that when a prosecution’s case involves
a “technical” issue, defense counsel must consult a
“relevant” defense expert before trial to prepare possible
defenses. Appellant Br. 31, 36. Had his lawyers consulted
a relevant defense expert (here, a toxicologist), he says,
18a
Appendix A
they would have discovered his preferred acetaminophenbased defense. (For purposes of resolving this argument,
we will assume that DeBruyn’s lawyers did not consult
a defense toxicologist before trial.) DeBruyn’s argument
fails because he has not identified a Supreme Court
holding that clearly establishes his rule. No such precedent
plainly establishes that a lawyer must consult a “relevant”
defense expert before trial in a “technical” case. To be
sure, “[c]riminal cases will arise where the only reasonable
. . . defense strategy requires consultation with experts”
before trial. Harrington, 562 U.S. at 788. But because
there are “countless ways to provide effective assistance
in any given case,” counsel’s failure to “consult” an
“expert” may be ineffective only “in some cases.” Id. at
788-89 (citation modified). That “formulation is sufficiently
general that state courts . . . have wide latitude in applying
it.” Id. at 789. In short, the Supreme Court has not adopted
the hard and fast legal rule DeBruyn advances. See Dunn,
141 S. Ct. at 2410 (quoting Harrington, 562 U.S. at 104,
106-08).
No more availing is DeBruyn’s reliance on Richey v.
Bradshaw, 498 F.3d 344 (6th Cir. 2007). There, a state jury
convicted Kenneth Richey of murder by arson. Id. at 346.
In state court post-conviction proceedings, Richey argued
that he received ineffective assistance of trial counsel
because his attorney failed to investigate whether the fire
was actually caused by arson. Id. at 357. The state courts
rejected the claim on the merits. Id. at 358. Richey then
filed a habeas petition in federal court, renewing the same
claim. We held under AEDPA that the state courts had
unreasonably applied Strickland’s performance element.
19a
Appendix A
Why? Because “Richey’s counsel did not conduct the
investigation that a reasonably competent lawyer would
have conducted into an available defense—that the fire
was not caused by arson.” Id. at 362.
Richey’s AEDPA holding, however, has been overtaken
by subsequent Supreme Court decisions. In Kendrick v.
Parris, 989 F.3d 459 (6th Cir. 2021), we explained that
Richey “predates the Supreme Court’s guidance in
Harrington, which held that a federal court misapplied
AEDPA by finding that an [ineffective assistance claim]
had merit under de novo review and then declaring
without further explanation that the state court’s contrary
ruling was unreasonable.” Id. at 476 (citation modified). As
“Richey engaged in that type of now-outdated review and
barely referenced AEDPA’s deferential standards when
granting relief,” its holding that relief was warranted
under AEDPA is no longer a viable precedent. Id.
In sum, a fairminded jurist could conclude that
DeBruyn’s law yers chose to pursue a reasonable
defense strategy that made any investigation into an
acetaminophen-based defense unnecessary. Thus,
DeBruyn cannot show that the state court’s performance
ruling amounted to an unreasonable application of clearly
established Supreme Court precedent.
Prejudice. Even if DeBruyn could show that the
state court of appeals unreasonably applied Strickland’s
performance element, he also must demonstrate that
the court made a similarly egregious application of
Strickland’s prejudice element. The state court of appeals
20a
Appendix A
held that DeBruyn suffered no prejudice from his lawyers’
failure to investigate an acetaminophen-based defense,
DeBruyn, 2022 Mich. App. LEXIS 1798, 2022 WL
981281, at *9, so AEDPA applies. Rayner, 685 F.3d at 638.
Recognizing as much, DeBruyn paints the state court’s
decision as an unreasonable determination of the facts and
an unreasonable application of clearly established federal
law. 28 U.S.C. § 2254(d). We disagree.
To demonstrate that the state court decision was
based on an unreasonable determination of the facts,
DeBruyn must show that the underlying facts found by
the state court were not just debatable or incorrect but
“unreasonable—a substantially higher threshold” for
obtaining relief. Shoop v. Twyford, 596 U.S. 811, 142 S.
Ct. 2037, 2043, 213 L. Ed. 2d 318 (2022) (citation modified).
Factual findings of the state court are presumed correct
and can be rebutted only by “clear and convincing”
evidence. 28 U.S.C. § 2254(e)(1). The state court’s prejudice
ruling turned on the following. The fact that Gesiakowski
had no acetaminophen in her blood at the time of her death
was consistent with the State’s theory of the case: She
consumed oxycodone in the form of Percocet on April 10
or 11 and then excreted the Percocet’s acetaminophen into
her urine by the time of her death on April 12. DeBruyn,
2022 Mich. App. LEXIS 1798, 2022 WL 981281, at *7.
The state court of appeals’ factual determination
was not unreasonable. The Ginther hearing showed
that Percocet has two ingredients: oxycodone (an opioid)
and acetaminophen (Tylenol). When a person consumes
Percocet, oxycodone and acetaminophen enter the blood
21a
Appendix A
and then begin to “metabolize.” Ginther Hr’g, R.7-17,
PageID 1961. Through this process, the two are excreted
“by the kidney into the urine.” Id. But acetaminophen
metabolizes faster than oxycodone, even up to twice as
fast in some individuals. Against this backdrop, one of
the State’s experts testified that the State’s theory of the
case—Gesiakowski consumed oxycodone in the form of
Percocet—was “absolutely” “consistent” with the fact that
Gesiakowski had no acetaminophen in her blood because
her body could have excreted the acetaminophen into
her urine by the time of her death. Id. at PageID 1997.
In adopting the expert’s conclusion, the state court did
not unreasonably interpret the evidence. DeBruyn, 2022
Mich. App. LEXIS 1798, 2022 WL 981281, at *7.
Resisting this conclusion, DeBruyn argues that the
state court erred in determining the facts because it
adopted the State’s interpretation of the evidence. For
example, he asserts that the court “ignored” his expert’s
testimony that Gesiakowski could not have consumed
Percocet, because she had no acetaminophen in her blood.
Appellant Br. 54-55. We recognize the conflicting expert
evidence. That said, DeBruyn has not offered clear and
convincing evidence that the state court unreasonably
erred in choosing to credit the State’s expert testimony
over DeBruyn’s. For one thing, as already described, the
court, after reviewing the Ginther record, determined
that Gesiakowski’s blood/urine tests were consistent
with the State’s theory of the case. DeBruyn, 2022 Mich.
App. LEXIS 1798, 2022 WL 981281, at *7. A state court
does not make a clear and convincing factual error when
it chooses to credit a permissible view of the evidence.
22a
Appendix A
Anderson v. City of Bessemer City, 470 U.S. 564, 574,
105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985); Hill v. Shoop, 11
F.4th 373, 389 (6th Cir. 2021) (en banc) (“[F]aced with two
reasonable interpretations of evidence, we cannot say that
the state court’s decision to go with one over the other
was unreasonable.”).
For another thing, DeBruyn’s expert appears to have
based his conclusion that Gesiakowski could not have
consumed Percocet on his representation that “oxycodone
and acetaminophen are metabolized at the same rate.”
Ginther Hr’g, R.7-16, PageID 1834-35. Again, ample
evidence from the Ginther hearing said otherwise.
For these reasons, a fairminded jurist could conclude
that no juror would have been swayed by DeBruyn’s
acetaminophen-based defense. The prosecution, as the
state court of appeals concluded, had a strong case that
Gesiakowski consumed Percocet. DeBruyn, 2022 Mich.
App. LEXIS 1798, 2022 WL 981281, at *7. Remember,
Gesiakowski repeatedly asked DeBruyn for oxycodone,
and he then purchased 40 Percocet pills for Gesiakowski
from his friend. A few days later, Gesiakowski overdosed
and had Percocet’s two ingredients in her blood and urine.
Based on these facts, it was reasonable for the state court
to conclude that it was not substantially likely that the jury
would have been moved by the argument that Gesiakowski
did not take Percocet.
All in all, DeBruyn’s failure-to-investigate claim
comes up short.
23a
Appendix A
B. We now consider DeBruyn’s claim that his
lawyers performed ineffectively because they failed to call
an expert at trial to support their defense that oxycodone
was not a substantial factor in Gesiakowski’s death. Here
too, the state court of appeals denied this claim for lack
of both deficient performance and prejudice, so AEDPA’s
highly deferential standards (again) apply. Rayner, 685
F.3d at 638. And DeBruyn’s claim (again) fails under
AEDPA, because he has not shown that the state court
decision unreasonably applied Supreme Court precedent
or turned on an unreasonable determination of the facts.
Performance. The state court of appeals found no
deficiency in DeBruyn’s lawyers’ decision to not call an
expert witness at trial. Counsel’s “strategy to present
the defense theories through cross-examination of the
prosecution’s experts,” the court explained, was not
“objectively unreasonable.” DeBruyn, 2022 Mich. App.
LEXIS 1798, 2022 WL 981281, at *7. DeBruyn counters
that the state court’s ruling amounted to an “unreasonable
application of[] clearly established Federal law[] as
determined by the Supreme Court.” 28 U.S.C. § 2254(d)
(1). We disagree.
DeBruyn carries a familiar burden: He must first
identify the “clearly established” legal principle on which
he relies. On that note, he is correct that “[c]riminal cases
will arise where the only reasonable and available defense
strategy requires” the “introduction of expert evidence.”
Harrington, 562 U.S. at 106. But with “countless ways to
provide effective assistance in any given case,” counsel
typically has “wide latitude” in deciding whether to
24a
Appendix A
call an expert. Id. (citation modified); see also id. at 111
(noting that Strickland “does not enact Newton’s third
law for the presentation of evidence, requiring for every
prosecution expert an equal and opposite expert from
the defense”). Indeed, in presenting a defendant’s case,
cross-examination is “sufficient” in “many instances,”
especially where counsel’s “overall performance indicates
active and capable advocacy.” Id. at 111. And counsel
need not be “exemplary” during cross. Dunn, 141 S. Ct.
at 2410 (citation modified). Rather, she needs to exercise
“such skill and knowledge as will render the trial a
reliable adversarial testing process,” considering all
the circumstances. Strickland, 466 U.S. at 688. In the
end, so long as counsel did not take “an approach that no
competent lawyer would have chosen,” her decision not
to hire an expert is reasonable. Dunn, 141 S. Ct. at 2410
(citing Burt v. Titlow, 571 U.S. 12, 23-24, 134 S. Ct. 10,
187 L. Ed. 2d 348 (2013)).
Next, DeBruyn must show that the state court
unreasonably applied these principles to the specific
facts of his claim. 28 U.S.C. § 2254(d)(1). The state court’s
ruling must be “so lacking in justification that there was
an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103.
DeBruyn’s claim fails twice over. First, a fairminded
jurist could conclude that at least one competent lawyer
would have chosen to present DeBruyn’s defense through
cross examination of the State’s experts. See Dunn, 141
S. Ct. at 2411. When “defense counsel does not have a
25a
Appendix A
solid case, the best strategy can be to say that there is
too much doubt about the State’s theory for the jury to
convict.” Harrington, 562 U.S. at 111. Here, as explained,
the prosecution had a strong case that DeBruyn gave
Gesiakowski Percocet and that she died after consuming
the drug; it was reasonable for the state court to determine
that his lawyers decided to use cross-examination to
expose flaws in the State’s theory and, at the same time,
present alternative theories of Gesiakowski’s death.
Second, a fairminded jurist could conclude that
DeBruyn’s lawyers did not perform deficiently in
presenting their defense through cross-examination of
the State’s experts. See Harrington, 562 U.S. at 111.
In fact, as the state court of appeals explained, the
record “supports” that DeBruyn’s lawyers conducted “a
thorough and knowledgeable cross-examination of the
[State’s] experts.” DeBruyn, 2022 Mich. App. LEXIS
1798, 2022 WL 981281, at *7. Consider, for example,
their serotonin syndrome defense. At trial, Debruyn’s
attorney pressed the State’s experts on how tramadol
and fluoxetine can combine in dangerous ways to produce
serotonin syndrome, a “potentially fatal” condition where
a person’s body cannot absorb serotonin. Jury Trial
Tr., R.7-7, PageID 604. Oxycodone plays no role in the
syndrome’s onset. With increased serotonin in the body,
a person can die from “an extremely high temperature.”
Id. at PageID 531. Common symptoms of serotonin
syndrome include increased body temperature, agitation,
and restlessness. For these reasons, DeBruyn’s lawyers
argued, Gesiakowski could have died from serotonin
syndrome. She had tramadol and fluoxetine in her blood
26a
Appendix A
at the time of her death. And she had classic symptoms
of the syndrome in the hours before her death: She was
hot, had turned down the air, had stripped almost naked,
and was pacing back and forth.
DeBruyn’s counterarguments come up short. He
draws a purported “clearly established” legal principle
from Stermer v. Warren, 959 F.3d 704 (6th Cir. 2020),
namely, that when the State offers expert testimony, a
lawyer acts incompetently by failing to “retain someone
to help respond to the state’s expert testimony.” Id. at
739. But our precedent, it bears emphasizing, does not
“constitute clearly established Federal law, as determined
by the Supreme Court.” Glebe v. Frost, 574 U.S. 21, 24, 135
S. Ct. 429, 190 L. Ed. 2d 317 (2014) (per curiam) (citation
modified). Nor may we use our decisions to “sharpen a
general principle” from the Supreme Court “into a specific
legal rule” the Supreme Court has not clearly established.
Marshall v. Rodgers, 569 U.S. 58, 64, 133 S. Ct. 1446,
185 L. Ed. 2d 540 (2013) (per curiam). Equally true,
because Stermer expressly refused to base its decision
on the expert-witness claim at issue, any discussion
there regarding a lawyer’s failure to present an expert
was dicta. Kendrick, 989 F.3d at 476. And, at all events,
the Supreme Court has rejected the precise legal rule
DeBruyn derives from Stermer. Harrington, for instance,
confirms that defense lawyers have “wide latitude” in
deciding whether to call an expert at trial. Harrington,
562 U.S. at 111 (quoting Strickland, 466 U.S. at 689).
Not so fast, DeBruyn responds. Hinton v. Alabama,
571 U.S. 263, 134 S. Ct. 1081, 188 L. Ed. 2d 1 (2014) (per
27a
Appendix A
curiam), he says, held that “‘the introduction of expert
evidence’ is essential when the state’s case turn[s] on . . .
expert testimony.” Appellant Br. 43 (quoting Hinton, 571
U.S. at 273). Hinton’s holding, however, is not so sweeping.
There, the Supreme Court deemed it unreasonable for an
attorney not to seek funding for an expert witness where
that failure was based not on a strategic choice but on a
mistaken belief about the availability of funds. Hinton, 571
U.S. at 273. But unlike Hinton, DeBruyn’s lawyers made a
strategic decision to present their defense through crossexamination of the State’s experts. Cf. Clardy v. Pounds,
126 F.4th 1201, 1211 (6th Cir. 2025) (holding that counsel
did not commit legal error when the failure to procure an
expert was not based on a mistake of state law).
Even then, says DeBruyn, defense attorneys perform
incompetently whenever they use cross-examination to
“affirmatively present[] defense theories.” Appellant Br.
41. No Supreme Court precedent clearly establishes this
rule, however. In fact, as already explained, the Supreme
Court’s holdings cut the other way. See Harrington, 562
U.S. at 111; see also Dunn, 141 S. Ct. at 2411 (discussing
the manifold ways in which counsel may choose to present
a theory).
Lastly, DeBruyn argues that his lawyers performed
incompetently because his “jury” “never” heard “evidence”
that Gesiakowski could have died from something “other
than oxycodone.” Appellant Br. 41. The trial transcript
indicates otherwise. The jury heard plenty of evidence that
Gesiakowski could have died from something unrelated to
oxycodone—serotonin syndrome, as one example.
28a
Appendix A
In sum, the state court of appeals reasonably
det er m i ned that DeBr uy n’s law yers per for med
competently in presenting their defense through crossexamination of the prosecution’s experts.
Prejudice. In state court (and here), DeBruyn
argued that expert testimony would have enhanced his
arguments on four medical topics, each of which would
have strengthened his defense that oxycodone did not
play a substantial role in Gesiakowski’s death. After
reviewing the proposed testimony, the state court of
appeals concluded that the jury likely would not have
been swayed, meaning no prejudice occurred. Because
DeBruyn’s proposed expert testimony was “largely
speculative,” the court reasoned, “there would” not “have
been a reasonable probability of a different outcome” had
his lawyers presented the expert “at trial.” DeBruyn, 2022
Mich. App. LEXIS 1798, 2022 WL 981281, at *9. DeBruyn
paints the state court’s decision as both an unreasonable
determination of the facts as well as an unreasonable
application of clearly established law. Again, we disagree.
Topic one: opioid residual tolerance and retolerance. DeBruyn first focuses on his experts’ proposed
testimony about opioid residual tolerance and re-tolerance.
At the Ginther hearing, DeBruyn’s experts said that
opioid users can have “some degree of residual tolerance”
to oxycodone even if they do not use the drug for some
period of time. Ginther Hr’g, R.7-16, PageID 1896. They
added that former opioid users can redevelop a tolerance
to oxycodone “very quickly.” Ginther Hr’g, R.7-17, PageID
2017. But beyond those general statements, the experts did
29a
Appendix A
not opine on Gesiakowski’s specific tolerance. Nonetheless,
this testimony, according to DeBruyn, likely would have
changed the outcome of his trial because it “could have
precluded oxycodone from being a substantial factor in”
Gesiakowski’s death. Reply Br. 19. Why? Because, he says,
the jury could have found that Gesiakowski had a residual
tolerance (or developed a tolerance) to oxycodone by the
time of her death on April 12.
To beg in, the state cour t did not commit an
unreasonable mistake in finding that “Gesiakowski’s
potential for opioid tolerance was not” adequately
“supported.” DeBruyn, 2022 Mich. App. LEXIS 1798,
2022 WL 981281, at *7. Nothing in the record shows that
Gesiakowski had a residual tolerance to 180 nanograms
of oxycodone (the amount in her blood) by the time of her
death. Nor does the record reveal that Gesiakowski had
developed a tolerance to that amount of oxycodone over
the five days between her release from jail and her death.
Based on this finding, it was reasonable for the state
court to conclude that it was not substantially likely that
testimony about opioid residual tolerance and re-tolerance
would have changed the jury’s verdict. A fairminded
jurist could conclude that the “theoretical possibility”
that Gesiakowski had been tolerant enough to the 180
nanograms of oxycodone in her blood would not convince
any juror that oxycodone was not a substantial factor in
her death. Harrington, 562 U.S. at 112.
Topic two: serotonin syndrome. DeBruyn next
maintains that expert testimony would have enhanced
30a
Appendix A
his trial defense that Gesiakowski died from serotonin
syndrome. But a fairminded jurist could conclude that
expert testimony about serotonin syndrome would not
have likely changed the outcome of his trial, as it would
have been cumulative of evidence already presented by
his lawyers. See Cullen, 563 U.S. at 200.
Through cross-examination, DeBruyn’s lawyers made
the case that Gesiakowski could have died from serotonin
syndrome. Tramadol and fluoxetine, they said, can combine
in dangerous ways and produce serotonin syndrome, a
“potentially fatal” condition where a person’s body cannot
absorb serotonin. Jury Trial Tr., R.7-7, PageID 604. In
that instance, a person can die from “an extremely high
temperature, with increased body temperature, agitation,
and restlessness as the common symptoms. Id. at PageID
531. And Gesiakowski, DeBruyn’s lawyers argued, showed
the signs of serotonin syndrome. Her behavior in the hotel
room suggested she was hot and agitated—hallmark
symptoms of serotonin syndrome. Coupled with the
tramadol and fluoxetine in her blood at the time of her
death, these facts pointed toward serotonin syndrome as
the cause of death.
What more information could DeBruyn’s expert
witness have told the jury about serotonin syndrome?
Something important, DeBruyn says. He points out
that one of the prosecution’s experts wrongly testified
at trial that oxycodone can lead to serotonin syndrome.
That, he says, left the jury with the mistaken impression
that, even if Gesiakowski died from serotonin syndrome,
oxycodone still played a substantial role in her death.
The problem for DeBruyn, however, is that his lawyers
31a
Appendix A
did challenge the State’s expert on this point at trial.
After the State’s expert testified that oxycodone can
lead to increased serotonin levels, DeBruyn’s lawyers
confronted him with two international studies concluding
that oxycodone “does not affect serotonin levels.” Jury
Trial Tr., R.7-7, PageID 578. Faced with these studies, the
State’s expert conceded that if the studies were true, he
would “certainly . . . change” his “opinion.” Id. at PageID
579. But even when apprised of those studies, the jury
still found DeBruyn guilty. All in all, because DeBruyn’s
proposed expert testimony on serotonin syndrome would
have been cumulative, a fairminded jurist could conclude
it would not have likely changed the outcome of his trial.
See Cullen, 563 U.S. at 200.
Topic three: difluoroethane. DeBruyn next maintains
that an expert would have enhanced his argument at trial
that Gesiakowski died from difluoroethane. At trial,
recall, the defense argued that Gesiakowski could have
died from a heart problem caused by inhaling too much
difluoroethane. One of the State’s experts, however,
testified that Gesiakowski had only 2.2 micrograms per
milliliter of difluoroethane in her blood at the time of
her autopsy. That is a small amount, he said, especially
considering that people have died from difluoroethane with
“concentrations [of the chemical around] 29 micrograms.”
Jury Trial Tr., R.7-7, PageID 512. The defense countered
this point at trial by arguing that Gesiakowski could have
had a much higher concentration of difluoroethane in
her blood at the time of her death (even 29 micrograms)
because the chemical is volatile and easily escapes from
the blood.
32a
Appendix A
Turn, then, to the Ginther hearing. There, DeBruyn
presented evidence that 5.3 micrograms per milliliter
of dif luoroethane can cause someone to die from a
lethal heart problem. This evidence, DeBruyn argues,
“would have made it significantly more plausible that”
Gesiakowski “died from huffing [difluoroethane] alone.”
Reply Br. 20.
Maybe so. But DeBruyn’s argument fails under
AEDPA. At trial, the State’s experts said that it is
impossible to know with certainty how much difluoroethane
Gesiakowski had in her blood when she died. She could have
had 2.2 micrograms (the amount in her blood at the time of
her autopsy). Or she could have had a higher amount. Thus,
because DeBruyn cannot show that Gesiakowski had more
than 5.3 micrograms of difluoroethane in her blood when
she died, the amount he presented as potentially lethal, a
fairminded jurist could find that his new evidence would
not have moved the jury. After all, it established nothing
more than a “theoretical possibility” that Gesiakowski
died from difluoroethane. Harrington, 562 U.S. at 112.
Topic four: seizure. DeBruyn, lastly, emphasizes
his experts’ testimony that Gesiakowski could have died
from a seizure. At the Ginther hearing, DeBruyn’s experts
pointed out that Gesiakowski had been prescribed antiseizure medication (Keppra) in jail and that she had no such
medication in her blood at the time of her death. And, they
added, if a person “receiving anti-seizure treatment for a
seizure condition[] abruptly” stops taking her medication,
she could be prone to having a seizure. Ginther Hr’g, R.717, PageID 2069. DeBruyn takes this testimony and runs
33a
Appendix A
with it. Because Gesiakowski “abruptly stopp[ed]” taking
anti-seizure medication, and because she had a seizure
condition, DeBruyn says, she had an “increased risk of a
fatal seizure,” allowing the jury to find that she died from
a seizure, not oxycodone. Reply Br. 22.
A fairminded jurist, however, could find that
DeBruyn’s testimony about anti-seizure medication
established “nothing more than a theoretical possibility”
that Gesiakowski died from a seizure. Harrington, 562
U.S. at 112. That theory, in turn, rests on several factual
assumptions. One is that Gesiakowski had abruptly
stopped taking her medication, a point for which DeBruyn
offered no supporting evidence. Yet it is similarly possible
that she had stopped taking the medication well before
her release from jail. Another is that Gesiakowski had
been prescribed anti-seizure medication in jail for a
seizure condition. But what if she had been prescribed that
medication, as one of the State’s experts pointed out at the
Ginther hearing, to help her cope with opioid withdrawal?
In sum, a fairminded jurist could conclude that the
expert medical testimony DeBruyn offered at his Ginther
hearing would not have likely moved his jury. Thus, he
cannot show that the state court of appeals unreasonably
applied Strickland’s prejudice prong.
******
We affirm the district court’s judgment and deny the
writ of habeas corpus.
34a
APPENDIX B — AMENDED
Appendix B JUDGMENT OF
THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT, FILED MARCH 5, 2026
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 24-1905
SCOTT ALLEN DEBRUYN,
Petitioner-Appellant,
v.
ADAM DOUGLAS, WARDEN,
Respondent-Appellee.
Before: THAPAR, READLER, and BLOOMEKATZ,
Circuit Judges.
AMENDED JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED
that the judgment of the district court is AFFIRMED.
35a
Appendix B
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens
Kelly L. Stephens, Clerk
36a
APPENDIX C — Appendix
OPINIONCAND ORDER OF
THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION, FILED JUNE 28, 2024
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 23-10219
Honorable Shalina D. Kumar
Mag. Judge Elizabeth A. Stafford
SCOTT ALLEN DEBRUYN,
Petitioner,
v.
ADAM DOUGLAS,
Respondent.
OPINION AND ORDER DENYING THE PETITION
FOR WRIT OF HABEAS CORPUS AND GRANTING
A CERTIFICATE OF APPEALABILITY
Petitioner Scott A llen DeBruyn (“DeBruyn”),
incarcerated at the Saginaw Correctional Facility in
Freeland, Michigan, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, through his attorneys,
David J. Kramer and Stuart Gary Friedman. DeBruyn
challenges his conviction for delivering a controlled
substance causing death, Mich. Comp Laws § 750.317a.
37a
Appendix C
For the reasons that follow, the petition for writ of habeas
corpus is DENIED WITH PREJUDICE.
I.
Background
The material facts from DeBruyn’s conviction are
gleaned from the Michigan Court of Appeals’ opinion, See
People v. Debruyn, No. 352274, 2022 Mich. App. LEXIS
1798, 2022 WL 981281, at * 1-3 (Mich. Ct. App. Mar.
31, 2022), which is presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1). See Shimel v. Warren,
838 F.3d 685, 688 (6th Cir. 2016).
DeBruyn’s conviction arose from the death of Camille
Gesiakowski (“Gesiakowski”), who was found dead in
DeBruyn’s motel room on the morning of April 12, 2017.
On April 7, 2017, less than one week before she died,
Gesiakowski was released from jail where she had served
roughly 8 ½ months for violating her probation for charges
related to drug use. While incarcerated, Gesiakowski
and DeBruyn communicated with each other. The two
discussed meeting up after Gesiakowski was released
from jail to use “oxy,” a reference to the opioid oxycodone,
as well as other drugs. In several exchanges, Gesiakowski
expressed a desire to use “oxys”, to which DeBruyn
replied that he had some or could buy some. DeBruyn
also told Gesiakowski that he could buy some cans of
compressed air, commonly known as air duster, which
are manufactured for use in cleaning, but are sometimes
used for inhaling or “huffing” to produce a disorienting
or euphoric effect.
38a
Appendix C
When Gesiakowski was released from jail on April 7,
2017, DeBruyn picked her up. The two went to a Walmart
store where DeBruyn purchased two cans of air duster
and two bottles of wine. Gesiakowski’s sister, Celia,
subsequently went to DeBruyn’s house and discovered that
Gesiakowski was unresponsive, lying on a bed surrounded
by pill bottles and a can of air duster. Celia also saw noticed
alcohol bottles and guns standing against the wall. Celia
revived Gesiakowski and took her to their parents’ home.
Gesiakowski and DeBruyn subsequently exchanged
numerous messages in which they discussed meeting to
use drugs. DeBruyn mentioned his efforts to purchase
“pills” and “duster.”
Gesiakowski left her parents’ house on the evening
of April 9, 2017, meeting DeBruyn at his house after
he purchased two cans of air duster. On April 10, 2017,
DeBruyn purchased another four cans of air duster
at Walmart. That same day, DeBruyn purchased 40
Percocet pills, a medication containing oxycodone and
acetaminophen, from Lona Daniels and her boyfriend,
Michael Montgomery.
On April 11, 2017, Gesiakowski’s father Blake called
the police and asked them to check on the welfare of his
daughter at DeBruyn’s house. The police went to the home
but did not retrieve Gesiakowski. The victim’s father then
went to DeBruyn’s house but was unable to convince his
daughter to come outside. When Blake later returned
to DeBruyn’s house he discovered that DeBruyn and
Gesiakowski had left.
39a
Appendix C
After leaving the house on April 11, 2017, DeBruyn
and Gesiakowski took a taxi to a Walmart store, where
DeBruyn purchased additional cans of air duster. The
two then went to the Baymont Inn in Grand Haven, where
DeBruyn rented a room. Blake Gesiakowski went to the
motel and told the desk clerk that his daughter might be
in danger, but the clerk said that there was nothing he
could do. Blake then banged on the door of the motel room
where the couple was staying, but the police arrived and
warned Blake that he would be arrested if he did not leave.
The follow ing morning, on Apr il 12 , 2017, at
approximately 6:00 a.m., DeBruyn went to the front desk of
the Baymont Inn and told the desk clerk to call 911 because
Gesiakowski was not breathing. Although DeBruyn had a
cell phone, he did not call 911. While the desk clerk called
911, DeBruyn returned to his room. When police arrived,
they observed DeBruyn in the parking lot, smoking a
cigarette. Police found Gesiakowski dead in the room. The
room was very cold, and Gesiakowski’s body was cold to
the touch. In the room, police found four empty cans of
air duster, but did not find any pills or empty pill bottles.
DeBruyn informed the police that he and Gesiakowski
arrived at the motel the day before at 4:30 p.m. and that
they “were just hanging out.” He told police that they
went to bed at approximately seven or eight p.m., but that
Gesiakowski said that she did not feel well and went to the
bathroom several times to vomit. At approximately 3:00
a.m., Gesiakowski again vomited in the bathroom and
again said that she did not feel well. When DeBruyn woke
up at approximately 6:00 a.m., he found Gesiakowski was
40a
Appendix C
dead. The victim was found unclothed from the waist up.
DeBruyn told the police that she had worn clothes earlier,
but she had complained that she was very hot and had
turned the air conditioning to a very cold setting.
Prosecutors charged DeBruyn with delivering a
controlled substance causing death, alleging that he
delivered oxycodone, a Schedule 2 controlled substance,
to Gesiakowski, who then died after taking it.
At trial, the prosecution introduced evidence that
Gesiakowski died of mixed-drug toxicity, caused by
a combination of four of the substances found in her
system: oxycodone (a semisynthetic opioid pain reliever),
tramadol (a synthetic opioid pain reliever), fluoxetine (an
antidepressant branded as Prozac), and difluoroethane (a
halogenated hydrocarbon used as an aerosol propellant
in compressed air dusters). As to the issue of the cause
of death, the prosecution called as witnesses toxicologist
Dr. Benedict Kuslikis, toxicologist Dr. Matthew McMullin,
pathologist Dr. Matthew Carr, and forensic pathologist and
chief medical examiner Dr. David Start. The prosecution’s
experts generally agreed that all four substances
contributed to the victim’s death and that oxycodone, a
Schedule 2 controlled substance, was a substantial factor
in the victim’s death. Dr. Start testified that oxycodone
was the most significant factor in her death, while Dr.
Carr testified that, assuming that the victim had not
used oxycodone while incarcerated in jail, the amount of
oxycodone she used on April 11, 2017, was alone enough
to have caused her death.
41a
Appendix C
Defense counsel argued that the prosecution failed to
show that DeBruyn delivered oxycodone to Gesiakowski
and also failed to prove that oxycodone was a substantial
cause of her death. The defense further argued that
serotonin syndrome, which is caused by the interaction
of tramadol and fluoxetine, or the effect of difluoroethane
alone, had not been excluded as causes of death. Defense
counsel did not present an expert witness to support these
causation theories but cross-examined the prosecution’s
experts on the theories that serotonin syndrome or
difluoroethane caused Gesiakowski’s death.
Following DeBruyn’s conviction, the Michigan Court
of Appeals remanded the case to the trial court for a
Ginther 1 hearing on DeBruyn’s ineffective assistance of
counsel claim. During the hearing, the trial judge took
testimony from DeBruyn’s trial attorneys, as well as
defense experts Dr. Gerald Shiener, a psychiatrist, and
Dr. Randall Commissaris, Ph.D., qualified by the trial
court as an expert in the areas of pharmacology and
toxicology, regarding the cause of the victim’s death. The
prosecution again called Dr. Kuslikis, Dr. Start, and Dr.
Carr, who reiterated their opinions offered at trial and
responded to new matters raised by DeBruyn’s experts.
After the hearing, the judge denied DeBruyn’s motion
for a new trial.
DeBruyn’s conviction was affirmed. People v.
Debruyn, No. 352274, 2022 WL 981281 (Mich. Ct. App.
Mar. 31, 2022), lv.den. 978 N.W.2d 836 (2022).
1. People v. Ginther, 390 Mich. 436, 212 N.W. 2d 922 (1973).
42a
Appendix C
DeBruyn now seeks a writ of habeas corpus on the
following ground:
The Defendant should have been granted a
new trial where he demonstrated that trial
counsel seriously erred in failing to properly
investigate or challenge the State’s toxicology
evidence. Counsel never consulted with an
appropriate expert, was not aware of the
relevant literature in the field, and simply hoped
to secure the scientific [sic] he needed through
cross-examination of the state’s witnesses.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA),
imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim(1) re su lt ed i n a dec i sion t hat
was contrar y to, or involved an
unreasonable application of, clearly
established Federal law, as determined
by the Supreme Court of the United
States; or
43a
Appendix C
(2) resu lt ed i n a dec i sion t hat
wa s ba sed on a n u n rea sonable
determination of the facts in light of
the evidence presented in the State
court proceeding.
A decision of a state court is “contrary to” clearly
established federal law if the state court arrives 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. Williams v. Taylor,
529 U.S. 362, 405-06, 120 S. Ct. 1495, 146 L. Ed. 2d 389
(2000). An “unreasonable application” occurs when “a
state court decision unreasonably applies the law of [the
Supreme Court] to the facts of a prisoner’s case.” Id. at
409. A federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment
that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Id.
at 410-11. “[A] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of
the state court’s decision.” Harrington v. Richter, 562
U.S. 86, 101, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)(citing
Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct.
2140, 158 L. Ed. 2d 938 (2004)). To obtain habeas relief in
federal court, a state prisoner is required to show that the
state court’s rejection of his or her claim “was so lacking
in justification that there was an error well understood
and comprehended in existing law beyond any possibility
for fairminded disagreement.” Id., at 103.
44a
Appendix C
III. Discussion
DeBruyn argues he was denied the effective assistance
of trial counsel.
To show that he or she was denied the effective
assistance of counsel under federal constitutional
standards, a defendant must satisfy a two-prong test.
First, the defendant must demonstrate that, considering
all of the circumstances, counsel’s performance was so
deficient that the attorney was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). In so doing, the defendant must overcome a
strong presumption that counsel’s behavior lies within the
wide range of reasonable professional assistance. Id. In
other words, petitioner must overcome the presumption
that, under the circumstances, the challenged action
might be sound trial strategy. Strickland, 466 U.S. at 689.
Second, the defendant must show that such performance
prejudiced his defense. Id. To demonstrate prejudice, the
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.” Strickland,
466 U.S. at 694. “Strickland’s test for prejudice is a
demanding one. ‘The likelihood of a different result must
be substantial, not just conceivable.’” Storey v. Vasbinder,
657 F.3d 372, 379 (6th Cir. 2011)(quoting Harrington, 562
U.S. at 112). The Supreme Court’s holding in Strickland
places the burden on the defendant who raises a claim of
ineffective assistance of counsel, and not the state, to show
a reasonable probability that the result of the proceeding
45a
Appendix C
would have been different, but for counsel’s allegedly
deficient performance. See Wong v. Belmontes, 558 U.S.
15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328 (2009).
More importantly, on habeas review, “the question
‘is not whether a federal court believes the state
court’s determination’ under the Strickland standard
‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.’” Knowles
v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 173 L. Ed.
2d 251 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465,
473, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007)). “The pivotal
question is whether the state court’s application of the
Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard.” Harrington v. Richter, 562
U.S. at 101. Indeed, “because the Strickland standard is
a general standard, a state court has even more latitude
to reasonably determine that a defendant has not
satisfied that standard.” Knowles, 556 U.S. at 123 (citing
Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to
the § 2254(d)(1) standard, a “doubly deferential judicial
review” applies to a Strickland claim brought by a habeas
petitioner. Id. This means that on habeas review of a
state court conviction, “[A] state court must be granted a
deference and latitude that are not in operation when the
case involves review under the Strickland standard itself.”
Harrington, 562 U.S. at 101. “Surmounting Strickland’s
high bar is never an easy task.” Id. at 105 (quoting Padilla
v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 176 L. Ed.
2d 284 (2010)).
46a
Appendix C
DeBruyn first argues that trial counsel was ineffective
for failing to call expert witnesses to refute that DeBruyn
supplied the victim with the oxycodone that was found in her
blood stream. The gist of his argument is that the evidence
shows that DeBruyn purchased and gave the victim
Percocet, which contains oxycodone and acetaminophen.
The autopsy did not find any acetaminophen in the victim’s
blood stream, although acetaminophen was found in her
urine. Nonetheless, DeBruyn’s proposed experts testified
at the Ginther hearing that although acetaminophen
breaks down in the bloodstream quicker than oxycodone,
that nonetheless it should have been found in the victim’s
bloodstream so soon after she had taken the oxycodone
that was found in her bloodstream. DeBruyn argues that
the lack of acetaminophen in the victim’s bloodstream
shows that it was not the Percocet which DeBruyn gave
the victim that led to her death.
The trial judge denied this claim following the
Ginther hearing in her opinion denying the motion for
a new trial: She found the lack of acetaminophen in the
blood to not be a substantial defense for three reasons:
acetaminophen has a shorter half-life than oxycodone,
the rate at which an individual’s particular enzymes
metabolize various substances, and the acetaminophen
may have been below the cut-off for reporting. The judge
found that the evidence collectively presented by Dr.
Sheiner, Dr. Commissaris and Dr. Kuslikis shows that
acetaminophen is metabolized quicker than oxycodone,
sometimes twice as fast. The proofs did not show that
the lab report’s absence of acetaminophen in the blood
was proof that acetaminophen was not in the blood at a
47a
Appendix C
lower level than the oxycodone. The judge also noted that
it was “indisputable” that acetaminophen must have been
in the victim’s blood because it was found in the victim’s
urine. ECF No. 1-2, PageID. 20-21. The judge further
noted that Dr. Commissaris’ and Dr. Sheiner’s opinions
were conditioned on the victim having taken Percocet
shortly before her death. Dr. Commissaris testified that
the victim’s blood contained a “measurable concentration”
of hydromorphone, the metabolite of oxycodone, which
indicates that she did not take the pill(s) containing
oxycodone shortly before her death, but long enough prior
to her death for the acetaminophen to metabolize and the
oxycodone to partially metabolize. Id. at PageID. 21. There
was also evidence that Percocet pills come in different
strengths and although the level of acetaminophen stays
constant at 325 ng, the level of oxycodone varies between
2.5 and 10 ng. Although Dr. Sheiner testified that in a
Percocet overdose one would expect to find high levels of
both oxycodone and acetaminophen in the blood, the judge
found the relevance of that testimony was diminished in
a mixed drug toxicity case, where the prosecution did not
need to show that the victim consumed enough Percocet
to overdose but only she took enough Percocet to be a
substantial contributing factor in her death. Id.
The Michigan Court of Appeals rejected this claim
on appeal:
Defendant also argues that defense counsel
was ineffective by failing to introduce expert
testimony that Gesiakowski could not have
consumed the Percocet defendant allegedly
48a
Appendix C
provided because Gesiakowski’s blood tests did
not indicate the presence of acetaminophen. At
the Ginther hearing, appellate defense counsel
presented as an expert witness Dr. Randall
Commissaris, Ph.D., whom the trial court
qualified as an expert in both pharmacology
and toxicolog y. Dr. Commissaris opined
that although the lab report indicates that
Gesiakowski consumed oxycodone in the hours
before her death, she did not consume it in the
form of Percocet because the toxicology screen
did not indicate the presence of acetaminophen
in her blood.
In response, the prosecution recalled Dr.
Kuslikis who testified that although the
lab report did not indicate the presence of
acetaminophen in Gesiakowski’s blood, the
report indicated that acetaminophen was
present in her urine. He explained that
acetaminophen metabolizes up to twice as fast
as oxycodone and has a shorter “half-life,” and
thus it was not unusual that the lab report did
not indicate acetaminophen in the blood, which
is often present in a level too low to be indicated
in a lab report. He further explained that drugs
in the blood are excreted by the kidneys into
the urine, and that the blood and urine levels of
acetaminophen indicated in the lab report were
“absolutely” consistent with a person having
consumed Percocet. Dr. Start, the chief medical
examiner, similarly testified that the lab report
49a
Appendix C
was not inconsistent with Gesiakowski having
consumed Percocet. Because a review of the
record demonstrates that acetaminophen not
being indicated as present in the blood in the
lab report did not establish that Gesiakowski
did not consume Percocet, it was not a theory
that could have defeated the prosecution’s proof
that Gesiakowski consumed Percocet provided
by defendant. Defense counsel therefore was
not ineffective for failing to present an expert
witness to advance this theory.
People v. Debruyn, 2022 WL 981281, at * 7.
DeBruyn also argues that trial counsel was ineffective
for failing to call an expert to show that the oxycodone
was not a substantial cause of the victim’s death because:
(1) the victim was opioid tolerant and 180 ng of
oxycodone would not have been fatal to her and
applying a Post Mortem Redistribution (PMR)
would show that the oxycodone level of 180 ng
was actually two to three times higher than the
actual amount in the blood,
(2) The elevated level of Prozac combined
with the Tramadol caused serotonin syndrome
leading to a fatal seizure,
(3) huffing DFE lead either to a fatal seizure
or a cardiac arrest,
50a
Appendix C
(4) The lab report did not show the presence of
Keppra, an anti-seizure medication the victim
had been prescribed in jail, leading to the
speculation that she stopped taking the drug
and suffered a seizure.
The trial judge rejected the first theory when denying
the motion for a new trial. The judge concluded that a retolerance theory presumed that the victim was so tolerant
to opioids prior to going to jail that a dose of either 180 ng
or 130 ng of oxycodone would not be fatal. The judge noted
that there had been no evidence that the victim’s opioid
usage approached the level of a daily opioid user, such as
the types of patients described by Dr. Commissaris. There
was also no evidence that the victim acquired or sustained
a tolerance to the 130 ng or 180 ng of oxycodone while
she was in jail. There was thus no evidence to support a
theory that the victim had developed a high tolerance to
oxycodone such that the dosage she took would not be fatal.
ECF No. 1-2, PageID. 24. The judge further noted that
one of DeBruyn’s attorneys, Mr. Christopher Langholz,
consulted with an expert witness, Dr. Daniel Spitz, who
opined that the 180 ng of oxycodone alone was enough to
kill the victim. Counsel thus concluded that a toxicology
expert would not be helpful. Id. Mr. Langholz did argue
in his closing argument that 180 ng of oxycodone was not
fatal, but the jury rejected the argument. Id., PageID. 25.
The judge further concluded that PMR was inapplicable
due to the short time between the death and autopsy. Id.
As to the serotonin syndrome, the judge noted that cocounsel Christine Tober testified at the Ginther hearing
51a
Appendix C
that they were able to bring this defense out through
the cross-examination of the prosecution witnesses by
bringing out that the victim had an elevated level of
Prozac combined with similar acting Tramadol, and that
she was hyperthermic and agitated before she died. Id.,
PageID. 25. During the cross-examination of Dr. Kusliskis
by co-counsel, he admitted that serotonin syndrome can
be a cause of death if it causes too high a heart rate or
arrythmia or if it causes the body temperature to rise too
high. In the latter case, the autopsy would show the body
tissue to have an almost melted texture. Dr. Kusliskis
conceded that the elevated level of Prozac would have to
be considered in the mixed drug toxicity in which other
drugs played a part, although the tramadol was within
the normal range. Id., PageID. 26. Dr. Carr, on crossexamination, admitted that the serotonin syndrome
“might have played some component” although he did not
change his opinion that the combined levels of oxycodone
and tramadol made central nervous suppression and
respiratory suppression the more likely cause of death. Id.
The judge concluded that trial counsel’s decision not to call
an expert on serotonin syndrome was not ineffective. Id.
The judge rejected the claim that huffing DFE or
duster was a significant cause of the victim’s death. At
trial, the prosecution presented a Dr. Matthew McMullin,
who testified that the victim had 2.2 micrograms of duster
in her blood. Dr. McMullin claimed the lowest lethal level
of DFE was 29 micrograms and he opined that the DFE
did not cause the victim’s death. On cross-examination,
defense counsel elicited from McMullin an admission
that the level of DFE in the victim’s blood was likely
52a
Appendix C
higher at the time of her death, Dr. McMullin admitting
that the level of DFE at the time of death is “slippery”
to measure. ECF No. 1-2, PageID. at 27. Dr. Kuslaskis
testified at trial that the DFE could have been a player
in the victim’s death but not a “huge player.” Counsel on
cross-examination got Dr. Kuslaskis to admit that he did
not know how the DFE sample had been treated and he
further conceded that the level at death could have been
higher than 2.2 micrograms. When Dr. Carr testified
that 2.2 micrograms of DFE was not lethal, counsel on
cross-examination obtained an admission from him that
his opinion could change if the level of DFE in the blood
was higher. Counsel attempted to get Dr. Start to change
his opinion that the 2.2 micrograms of DFE in the victim’s
blood was not lethal by confronting him with the fact that
DeBruyn and the victim had purchased 19 cans of DFE in
the days leading to her death, but Dr. Start did not change
his opinion that he believed that oxycodone had been the
main cause of death. Id.
The judge observed that defense counsel had used the
prosecution’s experts to present the theory that cardiac
arrest or a seizure caused by huffing DFE was a major
contributor to the victim’s death and the jury heard and
rejected it. Id., PageID. 27-28. The judge further concluded
that the proofs presented at the Ginther hearing did not
establish that there was additional evidence presented
at trial by which counsel could have educated themselves
or presented expert testimony to establish huffing DFE
as a substantial defense. Although Dr. Commissaris
testified at the Ginther hearing that he had seen death
from a DFE level as low as 5.6 micrograms, and appellate
53a
Appendix C
counsel had presented a treatise showing death as low
as 1.1 micrograms, the judge concluded that not calling
an expert on this issue did not deprive DeBruyn of a
substantial defense that would have changed the outcome
of the case. Id., PageID. at 28.
The judge lastly concluded that counsel was not
ineffective for failing to call an expert to suggest that
the victim had died from a seizure because she had not
taken the anti-seizure drug, Keppra, which she had been
taking at the jail. The judge reasoned that no evidence had
been presented to show that the victim had a medically
documented seizure disorder or that she had suffered a
seizure in the past, nor was any evidence presented to
show that jail personnel had not prescribed Keppra to
prevent the victim from suffering withdrawal symptoms
while she was incarcerated. Id., PageID. 28-29.
The Michigan Court of Appeals rejected this portion
of DeBruyn’s claim:
After investigating the role of oxycodone
in Gesiakowski’s death, defense counsel
determined to cast doubt upon the prosecution’s
theory that oxycodone was a substantial factor
in Gesiakowski’s death by cross-examination
of the prosecution’s witnesses rather than
calling a defense expert on causation. At the
Ginther hearing, defense counsel explained that
through cross-examination, they were able to
use the prosecution’s toxicologist and medical
examiner to present defendant’s theories
54a
Appendix C
that the level of oxycodone in Gesiakowski’s
blood was not extremely high, and that more
significant factors in her death were the
likelihood of serotonin syndrome, caused by
the combination of tramadol and fluoxetine, and
also difluoroethane from huffing air duster. The
record supports that defense counsel at trial
were able to present these theories through a
thorough and knowledgeable cross-examination
of the prosecution’s experts.
The record thus demonstrates that defense
counsel investigated the cause of death
by consulting a forensic pathologist and
interviewing a toxicologist testifying for
the prosecution, both of whom opined that
oxycodone was a contributory cause that
was a substantial factor in Gesiakowski’s
death, and defense counsel demonstrated
command of the topic while cross-examining
the prosecution’s expert witnesses at trial; we
therefore cannot conclude that defense counsel
failed to investigate causation. Similarly, we
cannot conclude that defense counsel’s strategy
to present the defense theories through crossexamination of the prosecution’s experts was
objectively unreasonable. Counsel was not
required to “shop around” until they found
an expert willing to offer them a favorable
opinion. We conclude that the trial court did
not clearly err by determining that defense
counsel’s performance did not fall below an
55a
Appendix C
objective standard of reasonableness in their
investigation of causation and determination
of trial strategy.
People v. Debruyn, 2022 WL 981281, at * 7 (internal
citation omitted).
The Michigan Court of Appeals further ruled:
Defendant further argues that defense counsel
at trial was ineffective for failing to call an
expert witness to testify that Gesiakowski’s
consumption of oxycodone was not a substantial
factor in her death because (1) she was opioid
tolerant from frequent opioid use, (2) the
elevated level of f luoxetine and tramadol
combined to cause serotonin syndrome and a
fatal seizure, (3) huffing difluoroethane caused a
seizure or cardiac arrest resulting in death, (4)
the absence of Gesiakowski’s prescribed antiseizure medication in the lab report indicates
that she had failed to take the medication
and therefore was susceptible to seizure,
and (5) post-mortem redistribution may have
occurred, which may cause more oxycodone to
be observed in the blood after death than was
present in the blood at the time of death. We
disagree that the record supports the viability
of these theories.
With regard to opioid tolerance, Dr. Commissaris
testified that Gesiakowski was unlikely to have
56a
Appendix C
died from consuming oxycodone because it was
likely that she was opioid tolerant from previous
opioid use. He testified that oxycodone will have
less effect on someone with tolerance to the
drug, that tolerance can arise relatively quickly,
and that opioid tolerance will quickly reemerge
in a former opioid user when he or she resumes
use of the drug. Dr. Commissaris conceded,
however, that he had no personal knowledge
of Gesiakowski’s history of drug use, such as
her use of drugs while in jail or following her
release. Because Dr. Commissaris’ speculation
regarding Gesiakowski’s potential for opioid
tolerance was not supported by the facts of
this case, it is unpersuasive, and defendant was
not prejudiced by counsel’s failure to present
a defense expert in toxicology to advance this
theory.
With regard to the possibility of a fatal
seizure, Dr. Commissaris opined that a seizure
appeared probable and could have been caused
by (1) serotonin syndrome, resulting from
the interaction of fluoxetine and tramadol,
(2) huffing difluoroethane, (3) the cessation
of Keppra (antiseizure medication prescribed
for Gesiakowski while in jail), or (4) some
combination of these factors. Dr. Commissaris
noted that there was evidence that Gesiakowski
felt hot on the night of her death, which is a
symptom of serotonin syndrome. Defendant
argues that individually or collectively this
57a
Appendix C
evidence demonstrates a reasonable probability
of a different outcome had defense counsel called
an expert witness to advance the theory that
Gesiakowski died of a seizure caused by factors
other than oxycodone. When questioned about
mixed-drug toxicity, Dr. Commissaris agreed
that “mixed drug intoxication” was “very
likely” the cause of death, but opined that only
tramadol, fluoxetine, and difluoroethane were
related to seizures, and that oxycodone was
the “least likely contributor” to Gesiakowski’s
death.
Dr. Commissaris’ testimony that Gesiakowski
suffered a seizure is purely speculative, however.
Dr. Commissaris testified that Gesiakowski was
at risk for a seizure, but there is no evidence
that she, in fact, suffered a seizure; Dr.
Kuslikis explained that seizures rarely leave
evidence and that there was no evidence in
this case that Gesiakowski suffered a seizure.
Moreover, Dr. Commissaris’ testimony does
not demonstrate that oxycodone was not a
contributory cause that was a substantial
factor in Gesiakowski’s death. Dr. Commissaris
suggested that the other substances combined
to cause Gesiakowski to have a seizure causing
death; however, the evidence would need to
demonstrate that the seizure was the sole
cause of harm to adequately contradict the
prosecutor’s assertion that oxycodone was a
contributing cause that was a substantial factor
58a
Appendix C
in Gesiakowski’s death. See Bailey, 451 Mich at
6772 (An intervening act that causes harm to the
victim will “only serve to cut off the defendant’s
criminal liability when the intervening act is
the sole cause of harm.”). Dr. Carr testified that
even if Gesiakowski suffered a seizure, mixeddrug toxicity caused her death and oxycodone
was a substantial factor in her death. Defense
counsel therefore was not ineffective for failing
to call an expert witness to advance the theory
that Gesiakowski suffered a seizure.
Dr. Commissaris also testified that post-mortem
redistribution may have occurred and as a
result the level of oxycodone in Gesiakowski’s
blood may have tested at a higher level after
death than the level that actually was in her
blood at the time of death. However, Dr. Carr
testified that post-mortem redistribution was
unlikely in this case because the autopsy was
performed very quickly after the victim’s death
and that certain blood samples were taken from
the victim’s vitreous humor (eye), which is not
susceptible to post-mortem redistribution.
Further, Dr. Commissaris’ testimony did not
establish that if post-mortem redistribution
had occurred it would have affected the level
of oxycodone in the blood to the extent that it
was no longer considered a substantial factor
2. People v Bailey, 451 Mich 657, 676; 549 NW2d 325 (1996),
amended 453 Mich 1204 (1996).
59a
Appendix C
in Gesiakowski’s death. Again, defense counsel
was not ineffective for failing to call an expert
witness to advance a theory that would not have
negated the prosecution’s proofs.
People v. Debruyn, 2022 WL 981281, at * 8-9 (additional
citation omitted).
The Michigan Court of Appeals finally concluded that
DeBruyn was not prejudiced by counsel’s failure to call
an expert:
We know certain things from the trial court
record in this case. We know that the 23-yearold victim repeatedly implored defendant to
obtain oxycodone for her use. We know that
defendant obtained oxycodone in the form of 40
Percocet pills and that the next day defendant
and Gesiakowski retreated to the motel room
where she was found dead the follow ing
morning. We know that oxycodone was found
in Gesiakowski’s blood post-mortem. We know
that all of the prosecution’s experts testified
that the level of oxycodone in Gesiakowski’s
blood stream, either alone or in combination
with other drugs, was sufficient to cause her
death. And we know that both of the experts
defense counsel consulted before trial opined
that the level of oxycodone in Gesiakowski’s
blood stream was sufficient to cause her
death either alone or in combination with the
other drugs in her system. We are unable to
60a
Appendix C
conclude that had defendant presented largely
speculative alternate theories of the cause of
Gesiakowski’s death, there would have been a
reasonable probability of a different outcome
at trial.
People v. Debruyn, 2022 WL 981281, at * 9.
Mich. Comp Laws § 750.317a proscribes delivery of a
controlled substance causing death as follows:
A person who delivers a schedule 1 or 2
controlled substance, other than marihuana, to
another person in violation of ... MCL 333.7401,
that is consumed by that person or any other
person and that causes the death of that person
or other person is guilty of a felony punishable
by imprisonment for life or any term of years.
The elements of delivering a controlled substance
causing death under this statute are (1) delivery to a
person, (2) of a schedule 1 or 2 controlled substance other
than marijuana, (3) with intent to deliver a controlled
substance as proscribed by Mich. Comp Laws § 333.7401,
(4) consumption of the controlled substance by a person, (5)
resulting in the death of that person from the consumption
of the controlled substance. People v McBurrows, 504 Mich
308, 319; 934 N.W. 2d 748 (2019). This statute “punishes
an individual’s role in placing the controlled substance
in the stream of commerce, even when that individual
is not directly linked to the resultant death.” People v.
Plunkett, 485 Mich. 50, 60; 780 N.W.2d 280 (2010). Mich.
61a
Appendix C
Comp Laws § 750.317a is a general intent crime. Id. The
Michigan Supreme Court indicated that the statute “does
not require the intent that death occur from the controlled
substance first delivered in violation of Mich. Comp Laws
§ 333.7401. Rather, the general intent required to violate
Mich. Comp Laws § 750.317a is identical to the general
intent required to violate Mich. Comp Laws § 333.7401(2)(a):
the delivery of a schedule 1 or 2 controlled substance.” Id.
With respect to DeBruyn’s claim that trial counsel
was ineffective for failing to call expert witnesses for the
defense, the Supreme Court has noted that a counsel’s
strategic decision as to whether to hire an expert is entitled
to a “‘strong presumption’ of reasonableness.” Dunn v.
Reeves, 594 U.S. 731, 739, 141 S. Ct. 2405, 210 L. Ed. 2d
812 (2021). The strong presumption of the reasonableness
of counsel’s strategic decisions, when a claim of ineffective
assistance of counsel involves a decision on whether to
hire an expert, recognizes that defense lawyers have
limited time and resources, and so must choose from
among a number of strategic options, and such decisions
are particularly difficult because certain tactics run the
risk of harming the defense by undermining credibility
with the jury or distracting from more important issues.
Id. “Strickland does not enact Newton’s third law for the
presentation of evidence, requiring for every prosecution
expert an equal and opposite expert from the defense.”
Harrington v. Richter, 562 U.S. at 111. The selection of an
expert witness by a defense attorney is a “paradigmatic
example” of the type of strategic choice that, when made
after thorough investigation of the law and facts, is
“virtually unchallengeable” under Strickland. Hinton v.
62a
Appendix C
Alabama, 571 U.S. 263, 275, 134 S. Ct. 1081, 188 L. Ed.
2d 1 (2014).
At the outset, this Court notes that defense counsel
did consult with Dr. Daniel Spitz, the Macomb County
Medical Examiner. Dr. Spitz opined that the amount of
oxycodone contained in the victim’s blood stream would
be enough to be fatal. Counsel testified that he decided
not to call Dr. Spitz because he did not believe that his
testimony would be helpful. DeBruyn’s current counsel
argues that trial counsel was ineffective for consulting
Dr. Spitz because he was a pathologist, not a toxicologist,
even though defense counsel had initially consulted with
Dr. Spitz because the State Appellate Defender Office
(SADO) listed him on their site as a toxicologist.
The question for this Court on habeas review is
whether any fairminded jurist could agree with the
Michigan Court of Appeals that counsel’s failure to seek
additional expert witnesses to testify about whether the
oxycodone supplied by DeBruyn was the oxycodone found
in the victim’s blood stream and/or that it contributed
substantially to her death satisfied the reasonableness
standard enunciated in Strickland. Davis v. Carpenter,
798 F.3d 468, 473 (6th Cir. 2015). “That standard is a
general one, governing a great blue-water of attorney
conduct: from pre-trial discovery to plea-bargaining,
from in-court trial tactics to post-verdict motions, from
direct appeals to post-conviction challenges. The Supreme
Court has charted only parts of that expanse.” Id. The
Sixth Circuit in Davis concluded that when faced with
the question of whether trial counsel was ineffective for
63a
Appendix C
failing to seek additional experts to support the defense
theory that the victim in that case had died after being
accidentally dropped, the Tennessee Court of Appeals
found itself in “open water.”:
The Supreme Court has never reached the
specific questions that the Tennessee courts
answered in this case: how many experts
must an attorney contact before proceeding
without one, what kinds of outside advice can
the attorney rely upon, and ultimately how
hard must he try. The only buoy in sight, far
off on the horizon, was the Court’s guidance
in Strickland itself that counsel’s efforts
must be within “the wide range of reasonable
professional assistance [.]” 466 U.S. at 689,
104 S.Ct. 2052. That rule is as general as they
come. And “[t]he more general the rule, the
more leeway courts have in reaching outcomes
in case-by-case determinations.” Yarborough
v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140,
158 L.Ed.2d 938 (2004).
Id., at 473-74.
The Sixth Circuit concluded that the Tennessee Court
of Appeals did not unreasonably apply Strickland by
concluding that trial counsel’s efforts to find a medical
expert to testify at a second murder trial that the
infant’s fatal injuries could have been sustained when
the habeas Petitioner accidentally dropped his child
were professionally reasonable. Id. at 474. Counsel tried
64a
Appendix C
to convince an expert from the first trial to testify at the
second trial and worked side-by-side with the first expert’s
attorney to find another expert when the first expert
refused to testify a second time. Counsel also called one
or two doctors himself. Id. Although the Sixth Circuit
acknowledged that trial counsel could have done more than
he did to find another expert, fairminded jurists could
conclude that counsel’s efforts to find an expert “fell in the
permissible zone between “best practices” and outright
incompetence.” Id.
“Effective assistance does not require counsel to
continue contacting experts until he found one...willing to
testify against the prosecution’s theory of the case.” Flick
v. Warren, 465 F. App’x 461 465 (6th Cir. 2012)(Petitioner’s
counsel in a second-degree murder prosecution was
not ineffective for failing to call an expert to challenge
the science underlying Shaken Baby Syndrome, after
counsel had contacted three doctors seeking help with
the case and had received unfavorable responses from all
three). DeBruyn’s trial counsel did consult with an expert
witness, who informed counsel that he believed that the
amount of oxycodone found in the victim’s blood stream
was sufficient to cause her death.
Secondly, although counsel did not call an expert
witness, counsel were able to elicit favorable testimony
from the prosecution’s witnesses in support of their theory
that that the level of oxycodone in Gesiakowski’s blood
was not extremely high and that more significant factors
in her death were the likelihood of serotonin syndrome,
caused by the combination of tramadol and fluoxetine, and
also difluoroethane from huffing air duster.
65a
Appendix C
“In many instances cross-examination will be sufficient
to expose defects in an expert’s presentation.” Harrington
v. Richter, 562 U.S. at 111. A defense counsel’s decision
to cross-examine a prosecutor’s experts concerning their
findings, instead of calling an expert witness for the
defense to challenge that expert’s conclusions, has at times
been held to be a reasonable trial strategy that defeats a
habeas petitioner’s ineffective assistance of trial counsel
claim. See Tinsley v. Million, 399 F.3d 796, 806 (6th Cir.
2005); See also Jackson v. McQuiggin, 553 F. App’x 575,
580-82 (6th Cir. 2014). Counsels’ decision to cross-examine
the prosecution’s various experts, in lieu of calling an
expert, is a reasonable one that defeats petitioner’s claim.
Finally, as the Michigan Court of Appeals noted,
DeBruyn failed to show that he was prejudiced by
counsels’ failure to call an expert witness in light of the
substantial evidence against him.
In order to establish prejudice from counsel’s failure
to consult with or call an expert witness, a habeas
petitioner must show the “likelihood of a different result”
is “substantial, not just conceivable.” See Maze v. Lester,
564 F. App’x 172, 183 (6th Cir. 2014).
There was no dispute that DeBruyn had supplied
oxycodone to the victim in close proximity to her death
by providing her Percocet pills. Although the medical
examiner did not find any acetaminophen in the victim’s
blood stream, he did find acetaminophen in her urine,
which would tend to buttress the prosecution’s theory
that the Percocet that DeBruyn gave to the victim was
the source of the oxycodone found in her body. The
66a
Appendix C
prosecution’s experts gave valid reasons for why the
acetaminophen might not have been found in the victim’s
blood stream, namely, that it metabolizes at a quicker rate
than oxycodone, as well as the fact that acetaminophen
could have been in the victim’s blood, but at a level below
that for being detected in the bloodwork. In any event,
DeBruyn’s proposed experts could not explain away why
acetaminophen was found in the victim’s urine. Again, this
fact tends to buttress the prosecution’s theory that the
Percocet given by DeBruyn to the victim was the source
of the oxycodone recovered from the victim.
Nor can DeBruyn show that he would have likely
prevailed at trial by calling his proposed experts to
suggest that the oxycodone was not a substantial cause
of the victim’s death. The defense experts’ suggestion
that the amount of oxycodone found in the victim would
not have been fatal because the victim had developed a
tolerance for that level of oxycodone due to her addiction
to oxycodone would have been undercut by the fact that
the victim had been in jail for over eight months where
she presumably had no access to oxycodone or other
opiates. There was certainly no evidence presented to
the state courts or to this Court to suggest that the
victim had been using opiates while incarcerated, nor
was convincing evidence presented that the victim could
have built up a tolerance for oxycodone in the brief time
that she had been released from jail prior to her death.
Indeed, DeBruyn’s expert, Dr. Commissaris, conceded
that he had no personal knowledge of the victim’s history
of drug use, particularly her use of drugs while in jail or
following her release from jail.
67a
Appendix C
With regard to suggestion that the victim’s death
was caused by a fatal seizure, caused by (1) serotonin
syndrome, resulting from the interaction of fluoxetine
and tramadol, (2) huffing difluoroethane, (3) the cessation
of Keppra (antiseizure medication prescribed for the
victim while in jail), or (4) some combination of these
factors, there has been no showing that the victim actually
suffered a seizure or had a history of seizures. Thus,
DeBruyn’s proposed expert’s testimony would have been
purely speculative.
Moreover, as the Michigan Court of Appeals noted, the
evidence would need to demonstrate that the seizure was
the sole cause of harm to the victim to adequately rebut
the prosecutor’s theory that oxycodone was a contributing
cause of death. Under Michigan law, “joint mutual causes
do not excuse culpable behavior.” Danielak v. Brewer, 747
F. App’x 339, 345 (6th Cir. 2018)(Under Michigan law,
sufficient evidence supported jury’s finding that heroin
or combination of heroin and cocaine, rather than solely
cocaine, was cause of victim’s death as required to support
conviction of defendant who delivered heroin to victim for
delivery of a controlled substance, causing death; victim
died of a pulmonary edema, which was more consistent
with a death caused by heroin, and not of a heart attack,
which was more consistent with a death caused by cocaine).
DeBruyn has failed to make this showing.
This Court concludes that the Michigan Court of
Appeals’ rejection of DeBruyn’s ineffective assistance of
counsel claim was reasonable, precluding habeas relief.
68a
Appendix C
IV. Conclusion
Before DeBruyn may appeal this Court’s dispositive
decision, a certificate of appealability must issue. See 28
U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim
on the merits, the substantial showing threshold is met if
the petitioner demonstrates that reasonable jurists would
find the district court’s assessment of the constitutional
claim debatable or wrong. See Slack v. McDaniel, 529 U.S.
473, 484-85, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). “A
petitioner satisfies this standard by demonstrating that ...
jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 154 L. Ed.
2d 931 (2003). In applying that standard, a district court
may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying
merit of the petitioner’s claims. Id. at 336-37. “The district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
A habeas petitioner’s ineffective assistance of counsel
claim must make a substantial showing of the denial of
a constitutional right so as to justify the issuance of a
certificate of appealability. See Skaggs v. Parker, 235 F.
3d 261, 266 (6th Cir. 2000). A habeas court should grant
a certificate of appealability if jurists of reason could find
it debatable that trial co
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