Appendix — Smith v. Vasquez
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) ‘) 091328 — APR28 2019
\Q NQFFACE OF THE CLERK
In the Supreme Court of the Anited States
KEITH SMITH, Warden,
Petitioner,
V
ROBERT S. VASQUEZ,
Respondent
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
APPENDIX
RICHARD CORDRAY
Attorney General of Ohio
BENJAMIN C. MIZER*
Solicitor General
*Counsel of Record
BRANDON LESTER
Deputy Solicitor
M. SCOTT CRISS
Assistant Attorney General
30 East Broad St., 17th FI.
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax
benjamin.mizer@®
ohioattorneygeneral.gov
Counsel for Petitioner
TABLE OF CONTENTS
Appendix A: Order denying rehearing en
banc, United States Court of Appeals for the
Sixth Circuit, January 28, 2010
Appendix B: Opinion, United States Court of
Appeals for the Sixth Circuit, September 2
2009
Appendix C: Memorandum of Opinion and
Order, United States District Court for the
Northern District of Ohio, Eastern Division
October 3, 2007.
Appendix 1): Journal Entry and Opinion,
Mighth District Court of Appeals, Cuyahoga
County, January 20, 2004..
Appendix OF Findings — of act and
Conclusions of Law, Cuyahoga County Court
of Common Pleas, Criminal Division,
December 6, 2002
la
APPENDIX A
No. 07-4466
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT VASQU IZ,
Petitioner-Appellee,
\
MARGARET BRADSHAW, Warden
Respondent Appellant,
Killed: danuary 28, 2010
Before: MERRITT. BOGGS. and GRIFFIN. Circuit
Judge
ORDER
The court having received a_ petition for
rehearing en banc, which was circulated to all active
judges of this court, none of whom requested a vote
on the suggestion for rehearing en banc, the petition
for rehearing has been referred to the original panel.
The panel has further reviewed the petition
for rehearing and concludes that the issues raised in
the petition were fully considered upon the original
submission and decision of the case. Accordingly, the
petition is denied Judge Griffin would grant
).
aac
rehearing for the reasons stated in his dissent.
further, the panel revises its opinion by adding a
footnote, referenced at the end of the sentence at
page 11, line 15 as follows:
This statement, standing alone, would not
have been constitutional error, as new
testimony that “could not” have affected the
outcome could not “undermine confidence in
the outcome.” However, the statement was far
from alone and, indeed, was secondary to the
direct misstatement of the applicable Supreme
Court standard.
ENTERED BY ORDER OF THE COURT
s/Leonard Green
Cley k
APPENDIX B
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION
hile Name: 09a0625n.06
No. 07-4466
UNITED STATES COURT OF APPEALS
POR THE SIXTH CIRCUIT
ROBERT S. VASQUEZ,
Petitioner-Appellee,
y
MARGARET BRADSHAW,
Respondent-Appellant.
()n Appeal from the United States District Court
for the Northern District of Ohio
Kiled: September 2, 2009
Leonard Green, Clerk
sSefore: MERRITT, BOGGS, and GRIFFIN; Cireuit
Judges.
BOGGS, Circuit Judge. Robert Vasquez,
serving a life sentence for the rape of a child under
the age of thirteen, petitioned the district court for a
writ of habeas corpus. He argued that he received
constitutionally ineffective assistance of counsel
because his attorney failed to interview or locate
several potential witnesses whose testimony would
4a
have cast doubt on the credibility of the victim, the
state’s lone witness establishing Vasquez’s guilt.
The district court conditionally granted the writ,
holding that the Ohio courts unreasonably applied
federal law in denying his ineffective assistance of
counsel claim. Warden Margaret Bradshaw now
appeals from this decision, charging the district court
with failing to accord the state courts deference
under the Anti-Terrorism and_ Effective Death
Penalty Act and with misapplying Sixth Amendment
law to the atltorney’s actions. While we agree with
the warden that the district court improperly
disregarded the factual findings of the Ohio courts,
we affirm the district court’s decision. The Ohio
courts apphed law contrary to clearly established
federal law, stating and applying an overly exacting
standard for prejudice as a result of deficient counsel
performance. On our own review of the record, even
in hight of the state courts’ factual conclusions, we
hold that Vasquez received — constitutionally
ineffective assistance of counsel and is entitled to
habeas relief.
|
A
Vasquez was tried for the rape and kidnapping
of nine-year-old A.L. On direct appeal, the Ohio
courts summarized the facts of the crime, as
established by the evidence at trial, as follows:
On July 28, 2000, the nine-year-old victim and
her father [S.l.], who is a Cleveland police
officer, went to Don Shaffer’s house. Shaffer is
the victim’s father’s best friend. The father
and the victim met Shaffer and his fiancee
secky [gbertson [now Becky Shaffer] and
secky’s sister, Karra Vasquez, earlier in the
F
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5a
evening. ‘hey decided that Shaffer would pick
up some fast food and they would ZO to
Shaffer’s house to eat. The victim’s father first
returned home to drop off his boat.
By the time the victim and her father
arrived at Shaffer's house, it was late and
Shaffer and Becky had retired for the night.
However, staying with Shaffer was Becky’s
sister, Karra Vasquez and her husband, the
defendant, Robert Vasquez, and their two
small children. ...
After they finished |feating], the victim’s
father went outside with Kara Vasquez,
leaving the victim with Robert Vasquez.
Vasquez invited the victim to go downstairs
into the basement to watch television and to
help him with his two small chiidren. In the
hasement was a_ bunk bed The victim
testified that she climbed onto the top bunk
and that Vasquez also climbed onto the top
bunk after removing the bunk — ladder.
According to the victim, he then pushed her
down with his arm and, while holding his
hand over her mouth, he pulled down her
pants and underwear and began licking her
“private spot.” As he was doing this, his two
infant children were crawling around on the
bottom bunk. He continued the assault until
the victim’s father called to her from the top of
the stairs. The victim then put her clothes
back on and went home.
The victim did not say anything about
the assault to her father at that time. The
next day, the father took the victim and her
sister to spend a week with their grandparents
When the girls returned, the father took
6a
them to Shaffer’s house to babysit. Sometime
later, Robert Vasquez and Don_ Shaffer
returned from work. Robert Vasquez asked
the victim several times to go down into the
basement with him, but she refused. She then
told Don Shaffer that she needed to talk to
him. She told Shaffer that Robert Vasquez
had sexually assaulted her.
When the victim’s father returned,
Shaffer informed the victim’s father what she
had told him. The father called his partner at
the police department to request that he come
over to the house. He and his partner then
talked with his daughter to explain the serious
nature of the charges and to assure she was
telling the truth. He then called 911. During
this entire time, Vasquez remained in the
basement until he was arrested later that
night.
The victim was taken by ambulance to
Metro Hospital where she was interviewed by
a social worker and a physical exam was
performed.
State v. Vasquez, 2001 W.L. 13852781 at *1-*2 (Ohio
Ct. App. 2001).
At trial, A.L.’s testimony was the only
evidence presented by the state to demonstrate that
the crime occurred or that Vasquez committed it.
The state also offered testimony from A.L.’s father,
Don Shaffer, the investigating police officer, and the
social worker who interviewed A.L. Their testimony
tended to provide circumstantial evidence of her
credibility: that her story remained consistent
throughout the investigation and that she acted out
of the ordinary, including being fearful for her safety
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and calling her father daily from school. The defense
put on no evidence. Vasquez himself did not testify
and no other witnesses were subpoenaed or called.
Instead, Vasquez’s attorney, Don Butler, pursued a
strategy of highlighting the internal inconsistencies
in A.I..’s testimony and casting doubt on her
truthfulness.
The jury found Vasquez guilty. Ile was
sentenced to life imprisonment for the rape of a
minor under the age of thirteen and nine years on
the kidnapping charge.
[3
In addition to his unsuccessful direct appeal,
Vasquez filed a petition for post-conviction relief in
the Ohio Court of Common Pleas, alleging he
received ineffective assistance of counsel. Because
the resulting opinion is not clear as to which of its
statements were factual findings and which were
descriptions of testimony without — credibility
determinations, we recount the arguments and
evidence presented in more detail than a habeas
court ordinarily would.
Vasquezs petition argued, among other
things, that his counsel failed to investigate
adequately the circumstances surrounding the crime
and A.L.’s accusation. This alleged failure resulted
in his defense lacking several willing witnesses who
could have cast doubt on A.I..’s version of events and
on her credibility.
Specifically, Vasquez claimed that Butler, who
was assigned to the case by the court after Vasquez’s
original court-appointed attorney asked to be
relieved, never prepared a defense. The two men
sa
met only three times prior to the trial. Vasquez
alleges that he indicated to his attorney that his
wife, Karra Vasquez, and his mother-in-law, JoAnn
Kitchen, could provide helpful information but
admitted that he did not know where his wife was
staying during the trial. Vasquez also claimed that
in addition to the face-to-face discussions, he sent
Butler two ten-page letters detailing his version of
events, but that Butler never mentioned the letters
or followed up on the suggestions in them.
Vasquez also argued that Butler failed to
locate available evidence and witnesses who would
have challenged A.L.’s story and credibility. For
instance, the KMS run-sheet produced by the
responding EMT on the night that A.L. first accused
Vasquez contained statements from A.L. that appear
to be at odds with the state’s theory of the crime.
The run-sheet indicates that she told the EMT that
Vasquez “put it in me” and that she had immediately
showered on the night of the assault. At tnal, on the
other hand, she testified that Vasquez used only his
tongue and indicated that she slept through the
night on the couch with her father. Vasquez argued
that these discrepancies from the initial revelation of
the attack would have been a powerful impeachment
of her trial story.
Vasquez also identified five witnesses who
indicated they would have testified on Vasquez’s
behalf had Butler approached them. First, Karra
Vasquez said that she called Butler twice but never
received a return phone call. Vasquez argued that
his wife could have testified to facts that would have
made the attack less plausible: her presence in the
small house, the basement door being open, the
relatively shorue duration that A.L. was in the
basement, and A.L.’s undisturbed clothes and normal
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demeanor upon returning from the basement. She
also would have testified to the circumstances
related to the accusation, specifically that she
overheard A.L.’s father coach A.L.. about her story
prior to telling the police.
Second, Becky Shaffer also indicated that she
had not been contacted by Vasquez’s attorney.
Vasquez claimed that she had information about the
evening of A.L.’s accusation that could cast doubt on
its credibility. She rode to the hospital in the
ambulance with A.L. that night. She would have
testified that A.L. did not appear upset and was
excited by the attention, even hoping that her
accusation might get her on TV. She also would
have testified that A.L.’s father was prompting his
daughter’s answers.
Third, Vasquez proffered the testimony of
JoAnn Kitchen, Karra and Becky’s mother. Kitchen
had no direct knowledge of the crime or of A.I..’s
accusation, but said that she was willing to testify as
to A.L.’s truthfulness. As a family friend (in addition
to the connection between her son-in-law Don
Shaffer and A.L.’s father, Kitchen was familiar with
A.|.. and her family because A.L.’s father had dated a
third daughter), Kitchen had frequently babysat for
A.L. and interacted with her at family events. In her
opinion, A.L. craved attention so much that she could
not be trusted to tell the truth. Vasquez also argued
that Kitchen was important to his ineffectiveness
claim because she was the only family member who
actually spoke with Butler. She claimed that in her
conversation with Butler, she told him that she could
not help, but denies that she refused Butler access to
her daughter or indicated that the family was
unwilling to help.
10a
Kinally, Vasquez offered two additional
witnesses: Tammy Salopek and her daughter, Ashley
snyder. Salopek is a family friend to both A.L.’s
family and the Shaffers. Vasquez claimed that she
was thus easily identified and located by Butler if he
had spoken with Becky Shaffer about mutual
acquaintances. Both Salopek and her daughter had
extensive social contact with A.L.. They indicated
they would have testified to A.L.’s_ lack of
truthfulness — specifically her willingness to lie to
get attention. They also could have testified to A.L.’s
demeanor immediately after the accusation, as A.L.
slept over at Salopek’s home the following week.
Contrary to the evidence at trial, neither mother or
daughter observed any strange or out-of-the-ordinary
behavior in A.L.. Further, Vasquez argued that
Salopek and her daughter would have provided more
substance to a defense theory that A.L. fabricated
the story because Ashley Snyder had, earlier in the
summer of 2000, been the victim of sexual
molestation and had shared her story with A.L.
Together, Vasquez argued that these
witnesses demonstrated that his attorney failed to
locate evidence and witnesses that) could have
undermined the plausibility of the case and A.L.’s
credibility. Vasquez pointed out that this testimony
tended to show that the layout of the house made the
attack unlikely and the fact that she changed her
story from the KMS report and received coaching
from her father. Moreover, a competent attorney
could have put on a defense that explained how a
nine-year-old would be familiar enough with sexual
assaults to manufacture a story (months earlier she
heard details of Ashley Snyder’s own sexual
molestation) and why she might do so (she has a
history of lying for attention; she even hoped to be on
lla
TV after accusing Vasquez). Accordingly, Vasquez
asked for a new trial.
"7
“4
The Ohio court held an evidentiary hearing on
Vasquez’s claims of ineffective representation. ‘The
court took testimony from the five’ witnesses
recounted above who’ supposedly would have
participated in Vasquez’s defense but for Butler’s
failure to locate them during his investigation.
Vasquez and Butler also testified.
The five witnesses each testified consistently
with their affidavits and Vasquez’s petition described
above, outside of a few concessions on Cros:
examination. (For instance, Becky Shaffer admitted
that A.L.’s laughing in the ambulance was in
response to the EM'l’s joking.)
Vasquez testified that prior to trial he had
difficulty even learning the identity of his attorney.
Once he did discover h's attorney’s name and contact
information, he met with him only three times, and
none of those meetings lasted longer than a few
minutes and involved little substantive discussion of
his case. He asserted that he identified at least his
wife and JoAnn Kitchen as people to contact. He
repeated that he sent letters to Butler and that
claimed that it appeared Butler ignored them, asking
basic questions in their meetings that had been
answered in the letters.
Butler denied Vasquez’s characterization of
his defense. He admitted that he met with Vasquez
only three times, but argued that he discussed the
case at length with his client, but that Vasquez
provided no helpful information. When Butler did
find Karra Vasquez at her mother’s home, he claimed
that JoAnn Kitchen refused to speak with him except
12a
to indicate that Karra (and the rest of the family)
would not help the defense. As to Becky Shaffer,
Butler indicated that Don Shaffer’s friendship with
A.L..’s father and the fact that he was a state’s
witness made him believe it unlikely that she would
help the defense. He also indicated that he did
research into child sex abuse cases generally and
that he concluded that the best strategy was to
attack A.L.’s testimony.
After rehearsing this testimony in detail, the
court denied Vasquez’s petition. The court explained
that “Butler’s testimony not only showed no failure
in his obligation to prepare the case for trial in
general, but specifically concerning the subpoenaing
of witnesses, his testimony and of others showed that
the defendant’s family members refused to cooperate
with the defense.” Jbid. The court continued:
“perhaps most importantly, not one of the witnesses
who testified .. . offered any testimony that could
have changed the outcome of defendant’s trial.”
Reviewing for abuse of discretion, the Ohio
Court of Appeals affirmed the denial of Vasquez’s
petition. The Supreme Court of Ohio denied
discretionary review.
:
Vasquez filed his petition for a writ of habeas
corpus with the district court in June 2005. His
listed grounds for rehef included, inter alia, his
assertion that his attorney’s limited investigation
was unreasonable and therefore denied him effective
assistance of counsel.
The district court first acknowledged that it
“must generally defer to the factual finding of the
state courts,” but declined to do so here because “[a]
comprehensive review of the 800-plus pages of
Isa
transcript in the record, in addition to the rest of the
documents contained in the record, provides clear
and convincing evidence that the facts as found in
the Direct Appeal Opinion and_ Post-conviction
Hlearing Findings ... are inaccurate in numerous
places.” ‘The district court, now feeling freed of its
usual deference, thereafter undertook A
comprehensive discussion of all of the postconviction
testimony, complete with citations to the record
Turning to the legal question, the district
court concluded that “the state court application of
Strickland in this Case was objectively
unreasonable.” Specifically, “Butler's performance as
a whole was deficient. ... Butler simply failed in his
duty to conduct an objectively reasonable
investigation on which to base his conclusions about
trial strategy... .” ‘The court highlighted Butler's
failure to identify or interview several potential
defense witnesses and the short amount of attention
given directly to Vasquez as evidence of the
deficiency. And this “deficient performance
prejudiced the defense sufficiently to undermine the
reliability of the trial, and thus the state appeals
court’s findings to the contrary were an objectively
unreasonable application of Strickland’s prejudice
element.” Accordingly, the district court granted his
petition.
The Anti-Terrorism and [Effective Death
Penalty Act (AKDPA), 28 U.S.C. § 2244 et seq.,
requires us, when adjudicating a petition for habeas
corpus challenging the legality of a state court
conviction, to defer to a final decision on the merits
of fact or law — of the state court that first decided
the claims raised. The same Congressionally
supphed standards governed the district court's
lda
consideration of Vasquez s petition and, accordingly,
our focus 1s not on the errors that the warden
charges to the district court, but on the state court
record and whether it warrants the relief Vasquez
requests. See Parker v. Renico, 506 F.3d 444, 447
(6th Cir. 2007) (We review de novo the district
court's decision to grant or deny habeas relief.”)
A
AKEDPA requires that the writ shall not issue
unless we determine that the state court’
adjudication
(1) resulted in a decision that was contrary to
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in livht of
the evidence presented in the State court proceeding
28 U.S.C. § 2254(d)
Kor an allegation of constitutionally ineffective
assistance of counsel, the relevant = “clearly
established federal law” is Strickland v. Washington
466 U.S. 668 (1984). A counsel’s performance ts a
deprivation of a defendant's Sixth Amendment right
to counsel where a defendant shows his counsel’:
assistance was both deficient and that the deficiency
prejudiced the defendant. A performance is deficient
only if it “fell below an objective standard of
reasonableness’ in light of the “prevailing
professional norms.” /d. at 687-88. And a deficient
performance 1s prejudicial if “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the preceeding would have been
different. A reasonable probability is a probability
15a
sufficient to undermine confidence in the outcome.’
Id. at 694
The Ohio trial court did not follow this clearly
established law To be sure, the court cited
Strickland and identified a two-part test, measuring
for deficiency and prejudice But the court stated
that prejudice occurs only when “the result of
petitioner's trial or legal proceeding would have been
different had defense counsel provided proper
representation . (emphasis added). After reviewing
both Ohio and federal law, the court repeated itself,
explaining that “|ijJn order to demonstrate a claim of
trial counsel's ineffectiveness according to the United
States Supreme Court, a postconviction petitioner 1:
required to demonstrate that (1) the performance ol
defense counsel was seriously flawed . and (2) the
result of petitioner's tnal or legal proceeding would
have been different had defense counsel provided
proper representation.” (citing Strickland (without
providing a pin cite)). This was not a slp of the pen
during a rote repetition of a rule corrected upon
application of law to fact. In analyzing Vasquez's
claim as to the failure to interview and call potential
defense witnesses, the court relied directly on its
version of the ineffectiveness standard as crucial to
ILS decision against relief “perhaps most
importantly, not one of the witnesses who testified
lat the post conviction hearing] offered any
testimony that could have changed the outcome of
defencant’s trial.” The court repeated, in the context
of a different claim of ineffectiveness, that “even if
the Court found that Butler’s question demonstrated
a defierency . defendant has shown no resulting
prejudice As demonstrated above, neither the
testimony of Mrs. Vasquez or Becky Shaffer would
not [sic] have changed the outcome of the trial.”
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The Ohio Court of Appeals, reviewing for
abuse of discretion,! repeated the error. It framed its
1 The Ohio appellate courts review a trial court’s decision as to
a post-conviction petition for relief under an abuse of discretion
standard. See, e., State v. Gondor, 860 N.1.2d 77, 86 (Ohio
2006). ‘This raises an apparently unresolved question about the
state decision a federal court should defer to under AKDPA.
Where an appellate court reviews under an “abuse of
discretion” standard, it is not adjudicating the merits of the
Claim so much as the merits of the decision under review. The
question is only whether it fell into what is presumably a broad
band of discretion AEDPA, however, is meant to secure
deference to the application of federal law by a state court in its
“adjudicate[ion| on the merits” of a petitioner’s claim. 28 U.S.C
§& 2254(d) Accordingly, AKDPA perhaps does not have
anything to say about a state court’s decision that another state
court did not abuse its discretion -- it is concerned only with
whether the actual adjudication of the merits of petitioner's
Claim was contrary to, or an unreasonable application of,
federal law. On this view, we should focus our analysis on the
lower court's adjudication and not the appellate court. Thi:
approach finds analoyical support in our court’s refusal to give
AKDPA deference to a state appellate court review for plain
error. See Benge v. dohnson, 474 F.3d 236, 246 (6th Cir. 2007)
(“Because Benge could have met his burden under Strickland
despite not being able to demonstrate plain error, this analysis
did not constitute an ‘adjudication on the merits’ of Benge’:
ineflective-assistance-of-counse! claim.”) (quoting 28 U.S.C. &
2254(d)). Other cases, however, have focused on the reasoning
actually followed by the state court and not the standard of
review applied. See kleming v. Metrish, 556 ¥.3d 520, 530-82
(6th Cir. ZOO9) (distinguishing Benge and holding a review for
plain error is an adjudication on the merits where the state
appellate court first determined the merits of the claimed error
before holding that it did not effect substantial rights).
Nevertheless, we do not find it necessary to resolve th.
issue here because we hold that the appellate court also applied
law contrary to the Strickland standard by asking whether the
outcome would have been different. We note that it is plausible
17a
rejection of Vasquez’s appeal in terms of a changed
outcome: “defendant presented numerous witnesses
who did not testify at his trial. Their absence
does not demonstrate his counsel was ineffective and
that the outcome of his trial would have been
different had they been witnesses ....” (emphasis
added). In analyzing the argument, the appeals
court expressly adopted the trial court’s reasoning:
“[wle agree with the trial court’s conclusion that ‘not
one of the witnesses who testified .. . offered any
testimony that could have changed the outcome of
defendant’s trial.”
This is not a casual error. <A “reasonable
probability” of difference does not. mean “would have
been different.” The latter formulation puts a
greater burden on the petitioner. ‘To prevail on his
claim as it was adjudicated, Vasquez was required
not only to show that his counsel’s” deficiency
“undermine|d| confidence — in the outcome,”
Strickland 466 U.S. at 694, but to prove that a trial
with «ompetent counsel actually would have resulted
in his acquittal. Jn interpreting what Congress
meant in §& 2254(d), the Supreme Court used a
similar mistake as the paradigmatic example of en
appheation of law “contrary to clearly established
federal law” that deserves no deference under the
statute. The Court explained
“
A state court decision will certainly be
contrary to our clearly established precedent if
the state court applies a rule that contradicts
the governing law.... Take, for example, our
decision in Strickland . lf a state court
that a state appellate court might, without repeating the
mistake of a lower court, still affirm because it is applying a
deferential standard of review
l&a
were to reject a prisoner’s claim of ineffective
assistance of counsel on the grounds that the
prisoner had not established by a
preponderance of the evidence that the result
of his criminal proceeding would have been
different, that decision would be ‘diametrically
different, ‘opposite in character or nature,’
and ‘mutually opposed’ to [the Court’s} clearly
established precedent because [fit] held in
Strickland that the prisoner need only
demonstrate a ‘reasonable probability that. . .
the result of the proceeding would have been
different.’
(Terry) Williams v. Taylor, 529 U.S. 362, 405-06
(20061) Gnternal citations omitted).
, the error there, picked by the
Supreme Court for its clarity in illustrating
application of contrary law, precisely defined the
quantum of proof. ‘The Ohio courts left it at “would
Qf course
have been different,’ unadorned by the truly
offending words “preponderance of the evidence.” It
could be argued that, in the spirit of the deference
demanded by AI DPA, we should give the Ohio trial
court's statement the benefit of the doubt and
assume that the court implied the words “reasonable
probability.” See Holland v. Jackson, 542 U.S. 649,
654-55 (2004) (reversing a decision that the state
court decision was “contrary to” Strickland because
“use of the unadorned word ‘probably’ is permissible
shorthand when the complete Strickland standard is
elsewhere recited.”). After all, as the warden argues,
the appellate court, consistent with Supreme Court
precedent, stated the correct standard once.
We are not persuaded. Different standards
make for different outcomes. Even where a state
court “explicitly delineated the Strickland test,” its
19a
decision is “contrary to” federal law where the court
applied an “incorrect burden of proof.” West v. Bell,
550 F.3d 542, 552 (6th Cir. 2008). Indeed, our court
has already held that a state’s court use of a “would
have compelled acquittal” formulation is “contrary
to” federal law. Tinsley v. Million, 399 F.3d 796, 807
(6th Cir. 2005). While the appellate court did say
“reasonable probability” once, the use of the incorrect
words cannot be regarded as anodyne “shorthand,”
e.g. Woodford v. Visctotti, 537 U.S. 19, 23 (2002),
because they actually describe and apply a different
standard. The court of appeals emphasized the
inability to meet the prejudice prong, underscoring
whether the trial “would have been different,” and
expressly adopted the erroneous legal reasoning of
the court below. Accordingly, we hold that the Ohio
courts applied law that was contrary to clearly
established federal Jaw and we are therefore
“unconstramed by § 2254(d)(1) . . . and de novo
review is appropriate.” Fulcher v. Motley, 444 F.3d
791, 799 (6th Cir. 2006) (citing Williams, 529 U.S. at
A407)
13
AKDPA also supplhes our’ standard for
reviewing a factual record. The statute provides that
“a determination of a factual issue made by a State
court shall be presumed to be correct.” 28 U.S.C.
Only aif Vasquez “rebut{s] the
presumption of correctness by clear and convincing
evidence’ may we disregard those determinations.
bid. ‘The district court held that this burden was
carried Vasquez agrees; the warden = argues
strenuously that the district court erred
Before resolving this dispute, its necessary to
Clarify what the issue is. The Ohio trial court’s
decision was opaque about its findings of fact. Its
20a
opinion, to be sure, contained a_ section labeled
“Findings of Fact.” Sut the section gives no
definitive statement of “the facts”. Nor does it
resolve any of the testimonial inconsistencies
discussed. Instead, it provides the background to its
decision: a statement of the applicable legal rules, a
summary of the factual testimony given by each
witness at the post-conviction hearing, and portions
of trial transcript relevant to certain post-conviction
issues. None of this is the sort of “determination of a
factual issue” that § 2254(e)(1) requires us to accept.
The court’s “Conclusions of Law’ section,
however, does make a series of statements, which
reveal some of the facts that it evidently found
essential to its decision. The dispute over whether
the district court accorded the proper deference is
limited to only these statements, where the district
court’s “determination of a factual issue” are actually
discernable from its decision. Those statements are:
e “|The defendant’s family members refused
Lo cooperate with the defense.”
Specifically, “Butler explained, and the
witnesses themselves corroborated, that
Mrs. Vasquez, Becky Shaffer and Mrs.
Kitchen refused to cooperate in his
defense”
“Butler’s explanation concerning his efforts
to contact these family members and their
uncooperativeness was corroborated by
detective Chappelle”
“Since Tammy Salopek was a friend of
Becky's, had Becky been cooperative with
Butler, he could have possible [sic] learned
of her, and her daughter’s availability.”
Zia
In hght of the number of witnesses and the
relative complexity of the fact situation, this lack of
detail is both surprising and frustrating to a federal
court attempting to reconstruct the trial and the
post-conviction hearing to decide if habeas relief is
warranted. This frustration likely explains the
district court’s decision to conduct its own
“comprehensive review’ of the record — and,
ultimately, to rely wholesale on that review in place
«* he Ohio court’s findings, without demonstrating
which, if any, findings are specifically rebutted by
clear and convincing evidence. But, whether or not
understandable, the district court did not do what
AEDPA required of it.
~~
Under § 2254(e)(1), a proper comparison of
these limited findings of fact to the record asks
whether they are contradicted by clear and
convincing evidence. ‘The state court’s findings as to
Karra Vasquez and Kitchen are not. First, the state
court’s conclusion that Kitchen was not cooperative
resolves the credibility dispute between Butler (who
insisted she refused to help and said no one would)
and Kitchen (who denied that she refused to help) in
favor of the attorney. A reviewing court, relying on
cold transcripts, 1s not in position to displace such a
resolution. See Anderson v. City of Bessemer City,
A770 U.S. 564, 574 (1985). Second, the state court’s
reference to the corroboration of Butler’s efforts to
contact Karra Vasquez means that Butler’s only
means of contacting Karra Vasquez was through
JoAnn Kitchen. (Detective Chappelle testified to the
same difficulty in contacting Karra Vasquez.) If
Builer is to be believed over Kitchen, as the state
court's opinion requires, Kitchen’s” refusal also
blocked his access to Karra Vasquez.
In contrast, the court’s discussions regarding
Becky Shaffer is not a determination of fact that
forecloses Vasquez’s argument. It is true that the
court grouped her with Karra and Kitchen as
someone that “refused to cooperate.” But it is
dubious that this statement, contained in a summary
statement listing Karra Vasquez and_ Kitchen,
reflects a factual determination by the court. See
Wiggins v. Smith, 539 U.S. 510, 530-31 (2005)
(evaluating a state court’s conclusory factual finding
in light of its explanation and denying it deference
under § 2254(e)(1)). Unlike Kitchen (and Karra
Vasquez, who was known to be living with Kitchen at
the time Butler called her), Butler never contacted or
even attempted to contact Becky Shaffer. There was
therefore no opportunity for her to “refuse to
cooperate” and the court could not have so
determined. Instead, its reasoning that “Butler’s
professional opinion that Becky Shaffer would not be
of assistance since her husband was a State's
witness, and because of Mrs. Kitchen’s
representations that no one in the family would help,
is a decision that is solely within defense counsel’s
discretion” 1s a better reflection of the court’s holding
as to Becky Shaffer. ‘To the extent that the court
relied on her “refusal,” it appears from this
statement that 1t was actually deciding that Butler’s
conclusion that she would have refused was
reasonable. That was a legal conclusion and we
review it as such below.
The trial court’s conclusions about the KMS
run-sheet also do not merit § 2254(e)(1) deference.
The court concluded that the informacion _ it
contained actually corroborates A.L.’s trial
testimony. While credibility determinations as
between counsel and potential witnesses regarding
what happened pretrial must be deferred to as a
202
factual determination, this conclusion is different.
The court decided that one interpretation of the
evidence (the EMS run-sheet corroborated A.\L..’s
testimony) was better than another (that it
contradicted both A.L.’s and her father’s testimony).
Sut both would have been permissible
interpretations for the jury to draw had the KMS
run-sheet been presented to the jury in the first
instance, and so this reasoning 1s actually a holding
that Vasquez has not carned his burden to show
prejudice resulting from his attorney’s failure to
identify the run-sheet as useful impeachment
vidence. See Ramonez v. Berghuis, 490 F.3d 482,
490 (6th Cir. 2007) ([W]hat the state court has
really done is to state its view that there is not a
reasonable probability that the jury would beleve
the testimony and thus change its” verdict.”)
Accordingly, we review it de novo below.
To reiterate, on the facts as we must take
them, based on the implications of the state court's
decision and the operation of AEKDPA deference,
Vasquez cannot base his ineffective assistance of
counsel argument on the failure to investigate Karra
Vasquez or JoAnn Kitchen. They refused to
cooperate and any amount of investigation by Butler
would not have made a difference. But Vasquez may
base his claim on the failure to investigate and put in
the record the EMS run sheet and Becky Shaffer's
account of A.L.’s credibility. By extension, Vasquez
may also rely on the testimony of Salopek and
Snyder, who (by admission of the trial court) likely
would have been found through an interview with
Shaffer, in making his claim.
The ultimate issue, then, is whether the
failure by Vasquez’s counsel to uncover’ the
24a
impeachment evidence from the EMS _ run-sheet,
Becky Shaffer, Tammy Salopek, and Ashley Snyder
resulted from deficient performance and, if so,
whether it prejudiced the outcome of the trial.
A
Constitutional competence is not a high bar
for an attorney to reach. The question is whether the
representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. In
determinating whether a performance was
reasonable, we give a healthy amount of deference to
counsel's tactical and litigation decisions; they are
“virtually unchallengeable” in the ordinary case. Id
at 690. But this deference to strategic choices has
always been tempered by a requirement that the
choices themselves he informed: “strategic choices
made after less than complete investigation are
reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation.” Jd. at 691 Accordingly, “a particular
decision not to investigate must be directly assessed
for reasonableness.” /bid. Our circuit has expressed
this principle with more color: “the investigation
leading to the choice of a so-called trial strategy must
itself have been reasonably conducted lest the
‘strategic’ choice erected upon it rest on a_ rotten
foundation.” Ramonez, 490 F.3d at 488.
The law as developed so far has not settled on
a definitive statement of what a “reasonable
investigation” entails. But well established
principles suggest that Vasquez's claim that his
attorney failed to identify key evidence and failed to
locate and interview critical witnesses is within the
known contours of the duty. See, e.g., Towns ov.
Smith, 395 F.3d 251, 258 (6th Cir. 2005) (noting that
the duty on counsel to investigate “includes the
CoRR «
20a
obligation to investigate all witnesses who may have
information concerning his or her chent’s guilt or
innocence.”); see also Clinkscale v. Carter, 375 F.3d
430, 443 (6th Cir. 2004) (collecting cases for the
proposition that failing to investigate or call
potential defense witnesses constitutes
constitutionally deficient representation). That the
missing evidence alleged here is impeachment
evidence and not, as in some ineffective assistance
cases, direct evidence of innocence does not reduce
the apphcability of ths principle. See Tucker vu
Qzmint, 350 F.3d 4383, 444 (4th Cir. 2003) (“Trial
counsel have an obligation to investigate possible
methods for impeaching a prosecution witness, and
failure to do so may constitute ineffective assistance
of counsel.”). ‘This is because we are assessing the
reasonableness of the representation and_ the
defenses available to the attorney change what 1s
reasonable: where there are no direct witnesses to
the alleged crime beyond the perpetrator and the
victim, impeachment evidence is at a premium.
The circumstances ordinarily surrounding an
accusation of child sexual abuse underscore this
concern for developing impeachment evidence. As
the Second Circuit has explained, “these cases
frequently hinge on judgments about credibility in
which jurors must choose between contradictory
stories proffered by the defendants and_ the
complainants” because “third-party witnesses [are]
often unavailable ” Kze v. Senkowskt, 321 F.3d
110, 112 (2d Cir. 2003). Thus, that court adopted a
rule that “defense counsel is obliged, wherever
possible, to elucidate any inconsistences in the
complainant’s testimony, protect the defendant’s
credibility, and attack vigorously the reliability of
any physical evidence of sexual contact between the
defendant and the complainant.” Ibid. While
26a
adopting a unique standard of care for sexual abuse
cases is unnecessary at this time, the Second
Circuit’s admonition is compelling here, in light of
what Butler knew as he was undertaking his
investigation and defense of Vasquez.
Prior to tral, Butler must have known there
was no plausible defense of Vasquez other than
attacking A.L.’s credibility. The only witnesses to
the crime were A... and Vasquez, so producing a
witness with a different account was impossible.
There was no physical evidence for him to counter, or
to demonstrate that a different person was involved,
There was no possibility of an alibi; Vasquez was
undeniably in the basement with A.L. And in fact,
Sutler identified no defense witnesses and called
none at trial.”
“ The warden attributes this failure to Vasquez. It is true that
Vasquez only told Butler to contact his wife and mother-in-law
and, apparently, did not mention Becky Shaffer or anyone else
as a potential witness. This might be a persuasive rejoinder to
Vasquez’s allegations if Becky Shaffer were not such an obviou
person to contact because: (1) she is Vasquez’s sister-in-law (at
the very least, Butler may have contacted her to pet in touch
with Karra Vasquez); (2) the crime took place in her home; (3)
she was present in the home at the time it occurred; and (4) she
was present immediately after A.L,.’s accusation
This attribution is part of a strategy, on the part of both
the warden and the state court, to place the attorney’s failure to
investigate at Vasquez’s feet. While we are sympathetic to the
defense attorney who has a client that will not help, we do not
belleve our cases to support the proposition that a defendant
gets only the defense that he is capable of providing personally
(They hold only that it ts not unreasonable for an attorney to
limit investigation once her client has frustrated her otherwise
reasonable efforts. See, e.g., Lorraine v. Coyle, 291 F.3d 416,
135 (6th Cir. 2002)) The Sixth Amendment guarantees
minimally effective representation because the adversarial
e)'7
ITA
< t¢«
Indeed, viewing the situation (as we must)
“from counsel’s perspective at the time,” Strickland,
466 U.S. at 689, four facts were clear and should
have pointed him toward the investigation necessary
to put on a stronger defense. First, A.L.’s story was
never crystal clear, suggesting that perhaps a well
informed cross-examination and a contradicting
defense witness could have raised a reasonable doubt
as to its veracity. Second, all of the people involved
in the crime and its revelation were extremely
interrelated, suggesting that there 1s a convoluted
back-story that could have provided context for the
jurors to understand the accusation and _ resolve
testimonial inconsistencies. ‘Third, Becky Shaffer
was the sister-in-law of Vasquez, at the place of the
attack on the might it occurred, and with A.IL,
immediately her accusation, all suggesting that she
may have had information useful to the first two
facts. Fourth, he had discovery materials from the
contained the KMS
report and the names and centact information of the
state that, among other things,
people the police investigated, including Becky
Shafter
testing of the state’s case, a cornerstone of our criminal justice
ystem, 1s very difficult without counsel. See Atmmelman '
Morrison, 477 U.S. 365, 384 (1986) (ln making the competency
determination, the court should keep in mind that counsel's
function is to make the adversarial testing process work
~) GQnternal quotation marks omitted). An attorney (especially
an expenenced one like Don Butler) has skills and knowledge
beyond the ken of an average criminal defendant. He should be
expected to take a sober account of the case he is presented
with and proceed to put together the best challenge to the
prosecution's proof This is true even if he must use
information gleaned from discovery and investigation instead of
the defendant's mouth
ORa
It 1s against this background that Butler's
decisions ayvainst investigation are unreasonable
Our recent decision in Brown v. Smith illustrates
how the thinness of the prosecution’s case affects our
judgment regarding an attorney’s decisions against
investigation. 551 F.3d 424 (6th Cir. 2008). In that
case the petitioner, also convicted of child sexual
abuse, alleged that his attorneys were ineffective for
failing to interview the psychiatrist who had treated
the accuser and lone witness. We explained that
because the “entire case hinged on the credibility of
lthe accuser], and defense counsel were aware that
lthe psychiatrist] . had treated her near the time
of the alleged assault,” it was “negligent indeed,
constitutionally deficient — for Brown's attorneys not
to seck in camera review of the counseling records
" Id. at 431. Similar reasoning applies here
sutler knew that Becky Shatter was ideally situated
to provide information on the only avenue of defense
available to Vasquez and that the EMS report
contained information contradicting the version of
events that the state was alleging at trial. Hle was
therefore deficient by declining to pursue these leads
Perhaps if Butler knew of other witnesses
certain to be cooperative or physical evidence tending
i show innocence, It would have been reasonable for
him to focus his limited time and resources on
developing a different defense based on_ that
evidence But he did not and so it was _ not
reasonabie to interview no potential witnesses and
develop no defense. See Williams v. Washington, 59
K.3d 673, 681 (7th Cir. 1995) (“Because investigation
lof the witnesses] might have revealed evidence
bearing upon credibility (which counsel believed was
the sole issue in the case), the failure to investigate
was not objectively reasonable.”); see also Bigelow v
Williams, 367 F.3d 562, 572 (6th Cir. 2004) (holding
vA Fs
counsel's representation deficient because he failed
to investigate a possible alibi witne once the
witness's identity was discovered)
The state court held that Butler's decision wa
reasonable as to Becky Shaffer because of Kitchen’s
statement and because Becky's husband was. a
state's witne: Kitchen’s statement makes sense a
a basis to discount Karra Vasquez Butler had to vO
through Kitchen to contact he but less so for
Becky Shafter Becky could be contacted
independently and, while she was a member of the
family (Vasquez’s sister-in-law) and may have had
reasons not to cooperate, it is ine redible for Butler to
base a decision against interviewing her on a single
statement from the witness's mother. As to Becky:
husband Don Shafter being a state’s witness, that
could explain a decision not to call Becky but not why
he did not attempt to talk with her in the first
instance. Cf. Brown, 551 F.3d at 482 (|O}ur quarrel
is not with trial counsels’ decision to forgo calling
a witness per se, but rather with the lack of any
reasonable, timely investigation into what she might
have offered the defense.’) Moreover, neither
argument takes into account that Butler knew that
Becky Shatter wa likely LO have relevant
information and talking with her could help a
develop an otherwise non-existent defense
Using the KMS run-sheet to impeach A.L. and
the other government witnesses (and as a basis for
further investigation) should have been an even
more straightlorward decision for Butler. ‘Through
discovery, Butler had direct knowledge of the EMS
report, which contained information demonstrating
inconsistencies in A.L.’s story: she described the
attack then as “he put 1t in me” and not as Vasquez
licking her Vaftiha, and she claimed that she had
taken a shower on the night of the attack (which
contradicts her father’s testimony that she fell asleep
on the couch with her father).
The state court reasoned that there was no
contradiction between the EMS report and the
testimony because its possible that (1) the “it” in the
KMS description was Vasquez’s tongue and (2) that
A.L.. showered after her father went to sleep. This
post hoc harmonization is not impossible as a matter
of logic but does not explain Butler’s indifference to
the potential inconsistency (the disharmonious
explanation is probably more plausible). He did not
try to find out whether or not the testimony of A.L.
and her father would stand up to impeachment on
the basis of the EMS report. Moreover, Butler
should have identified the report as particularly
probative because it was made so close to the original
report of the attack, so its inconsistency would
sharply undercut the corroborative testimony based
on interviews with A.LL. that took place much later.
Kor instance, penetration and licking are much
different acts and the fact that A.L. may have
changed her story between the two should have been
recognized as premium impeachment evidence. The
report further signals an opportunity to track down
and interview the IEMS respondent, who would have
been in a position to testify as to A.L.’s demeanor in
the ambulance on the way to her exam, possibly
corroborating Becky Shaffer's testimony that A-I..
was at case in the ambulance and more concerned
with the attention she was receiving than disturbed
by the abuse she reported.
The warden argues that this line of argument
is an impermissible second-guessing of Butler's
stratepic decision making. Accepting the patently
debatable premise that the omissions discussed in
‘
2 ‘
«J a
this opinion were the result of a conscious strategy
on Butler’s part, the foregoing account of what Butler
knew (and what the prospects for Vasquez’s defense
were) when he decided against continued
investigation demonstrates that decision was
“objectively unreasonable because 1t was a decision
made without undertaking a full investigation” and
therefore not due deference. Jowns, 395 F.3d at 259
(internal quotations omitted); see also Workman uv.
Tate, 957 F.2d 13839, 1345 (6th Cir. 1990) (“Where
counsel fails to investigate and interview promising
witnesses, and therefore has no reason to beheve
they would not be valuable in securing defendant's
release, counsel’s inaction constitutes negligence, not
trial strategy.”) Gnternal quotations omitted). To
this, we add only that the pretrial investigation
actually admitted to by Butler — his legal research on
sex abuse and child rape cases ~ should have pointed
him toward the investigation he failed to undertake.
ft is well known in the hterature (and the cases cited
above) that the credibility of the child witness 1s
often central to the success of child sex abuse
prosecutions and that the circumstances surrounding
the initial accusation of the abuse are important
indicia of credibility. See generally, e.g., Kamela
London et al., Disclosure of Child Sexual Abuse:
What Does Research Tell Us About the Ways that
Children Tell@, 11 PSYCH. PUB. POL. & L. 194
(2005) (discussing various psychological models of
children’s accusations of child sexual abuse and their
importance to understanding the accuracy of
testimony in child) sexual abuse trials). This
suggests that, even without knowing what Butler
knew about the available evidence, Becky Shaffer
and the {MS run-sheet would be natural starting
points to an investigation and a defense. — Yet,
Vasquez’s attorney did not pursue these leads. We
do not beheve that this behavior can accurately be
described as a “strategic choice’. Instead, we hold it
to be representation “below an objective standard of
reasonableness’ and constitutionally deficient.
Strickland, 466 U.S. at 688.
1}
This deficient representation only amounts to
a violation of Vasquez’s Sixth Amendment rights if it
resulted in prejudice — a probability of a different
result that is “sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. In
determining whether Vasquez has carried his
burden, we must evaluate the deficiency in light of
the “totality of the evidence before the... jury.” Jd.
at 695. And so, in a case in which the “verdict or
conclusion [is] only weakly supported by the record is
more likely to have been affected by errors... .” Jd.
at 696. Accordingly, in cases like this one, where the
only evidence of the crime or the defendant’s guilt is
the testimony of the victim, our circuit has been
especially willing to find prejudice from deficient
representation because “[t]he lack of physical
evidence confirming sexual activity meant that this
was necessarily a close case at the trial level.” Hodge
v. Hurley, 426 F.8d 368, 386 (6th Cir. 2005).
The missi evidence here undermines our
confidence that had Butler pursued the leads he had
immediately available to him the same outcome
vould have obtained. The IMS report demonstrates
a specific and non-trivial difference im her story over
how the attack took place: the run-sheet implies A.L.
reported that there was penetration by Vasquez’s
penis in contradiction to the evidence at trial.“
The state court’s harmonization that the “it? could” be
VU
Vasquezs tongue is not responsive to our focus about how the
Becky Shaffer's account reveals inconsistences in
A.l.’s timeline; that S.I.. coached A.L. and was
prompting responses to the police; that she acted
relaxed and not in conformity with a girl recently
revealing a traumatic experience; and_— specific
revelations that A.L.’s concern was over attention
(would she get on TV) and not the crime. Speaking
with her would have also Jed Butler to additional
defense witnesses. ‘The testimony from Salopek and
her daughter, in turn, would have provided detailed
reasons that A.I.. is not trustworthy and does not
that she
was not acting out-of-the-ordinary the week after she
revealed the attack; and that A.L. had just learned of
the sexual abuse suffered by Snyder. Together, this
understand the consequences of her lies;
5
evidence challenges the specifics of her story, her
motivations, and her general truthfulness. Moreover
?
and equally important, it undermines — the
corroboration evidence presented by the state — that
A.\..’s story did not change in her retelling of it, that
she acted out of character after the attack, and the
jury would likely have taken it. Coupled with the inconsistency
about the shower, we think it likely a jury would consider the
run sheet evidence of instability in A.I..’s” story Thes 4:
especially so because it is unlikely that the jury would be | ve a
nine-year-old would colloquially describe Vasquez's licking as
“putlting| it in,” whereas she might be likely to use that term
for penetration Moreover, unlike A.L.’s story at trial,
penetration is not consistent with the circumstances of the
attack occurring in a short window of time, with her father’:
presence upstairs, and on the same burk-bed where Vasquez’s
children were sleeping. In any case, the fact that we cannot be
sure about how the jury would take the evidence does not
prevent a finding of prejudice, since Vasquez need only
undermine our confidence in the outcome, not prove that a
different outcome was certain with competent counsel!
34a
implausibility of a nine-year old making up such a
sexual-molestation story.
The warden makes two arguments against the
prejudicial effect of this missing evidence. Fir. t, the
warden argues that Becky Shaffer may not have in
fact cooperated because she declined to give a
written statement to the investigating police officer.
This fact is not as significant as the warden would
have it. Shaffer did speak with the officer, but chose
not to give a written statement after her husband
had already given one. It is true that she did not, on
her own volition, volunteer facts to the police officer,
but that is not evidence of what she would have said
had she been directly asked. Indeed, legally trained
defense counsel are likely to ask different questions
and bring a different context to the investigation
than the investigating police officer. ‘The police
officer was trying to establish the facts of the attack.
Butler, undertaking his investigation with = an
understanding of the state’s case, would be building
a case specifically against A.L.’s version of events.
He likely would have asked different questions and
placed greater weight on information to present a
jury. for instance, he may have focused on the
ambulance ride (because it would be the best
evidence of how A.L. acted immediately after
accusing Vasquez) and on information about A.I..’s
credibility as a witness, rather than on what
happened the might of the attack. According to
Becky Shaffer's testimony, such questions would
have elicited the answers that now — provide
important impeachment evidence.
Second, the warden argues that the additional!
evidence was cumulative on Butler’s attacks against
A.L.’s credibility. To be sure, “evidence tiat 1s
merely cumulative of that already presented does not
rep
doa
_ establish prejudice.” Getsy v. Mitchell, 495 F.3d
295, 813 (6th Cir. 2007) (en bane) (internal
quotations omitted). Our cases, however, do not tell
us clearly when evidence becomes — sufficiently
different to no longer be “cumulative” or at’ what
level of generality one must compare the evidence.
In our most skeptical formulation, we have said, “in
order to establish prejudice, the new evidence that a
habeas petitioner presents must differ in a
substantial way — in strength and subject matter —
from the evidence actually presented ... .” Full vu.
Mitchell, 400 F.8d 308, 319 (6th Cir. 2005). In Hight
of the weakness of the defense at trial, the missing
evidence here satisfies even this high standard.
Butler used the cross-examination of the
prosecution’s witnesses to attack A.L.’s_ credibility
and to imply that her story changed. For instance,
A.L. admitted that she sometimes hes and that her
father has to punish her for that. A.L.’s father
agreed that he sometimes had to punish her for
lying. He admitted that he repeatedly went over the
accusation with her to make sure she was telling the
truth. He also admitted that during the eleven days
between the incident and her report of it, he did not
hear anything to indicate A.L. (who was visiting
relatives) acted out of the ordinary. further, Butler
used A..’s father to demonstrate differences
between the version of the attack in the police report
and the version recorded as the attack history in the
hospital, where A.L. did not tell the doctor that
Vasquez covered her mouth or that the attack ended
when her father called for her. Similarly, on cross
examination Don Shaffer indicated that those same
details in the hospital report were not in A.L.’s initial
description of the attack to him. Butler relied on this
testimony to create a narrative in closing about
A.L.’s credibility, suggesting that she was caught in
36a
a he by her father, but insisted on the truth of the
accusation to avoid the consequences of having hed
about it to her father.
The missing evidence is not cumulative on
these narrow admissions that’ Butler induced on
cross-examination. The missing evidence is not a
restatement of the general proposition of A.L..’s
untrustworthiness or the inconsistencies already
raised. Cf. Hartman v. Bagley, 492 F.3d 347, 361
(6th Cir. 2007) (holding no- prejudice’ where
petitioner's main argument 1s only “contentions that
counsel failed to expand on or corroborate or fully
develop the factors listed in” his psychologist’s report
that were testified to in front of the jury). Instead,
the evidence provides direct and specific challenges
to her motivations (she wants to be on TV, she wants
attention), her trustworthiness (she hes a lot and her
friends and friends’ parents confirm that she does
not understand consequences of her lies), the
stability of her story (the change in the EMS report,
the prompting from her father), and the origins of
her story (she just recently learned Ashley Snyder
had been molested), each of which was not presented
to the jury via Butler’s cross-examinations. The
inconsistencies elicited between the hospital report
and her initial report also were only sins of omission,
unlike the EMS report, which contains information
possibly contradicting the central fact of the crime.
Moreover, Butler’s attempts at impeachment
all relied on the testimony of the state’s witnesses
and frequently were likely unconvincing because
they rehed only on the state’s witnesses. — For
instance, A.L.’s admission that she “sometimes lies”
is less impressive without corroboration from
additional witnesses that underscore that she hes
specifically to get attention and that she frequently
ola
does not understand the consequences of her hes. Cf
Clinkscale, 3875 F.8d at 445 (holding — that
corroboration evidence to defendant’s alleged alibi
was not cumulative because without “any
corroborating witnesses [the defendant was] left
without any effective defense.”) (internal quotations
omitted). Butler's other attempts at impeachment
were followed by flat rejections of the broader
propositions that he tned to establish. S.L. rejected
the proposition that his daughter “had a tendency to
make things up.” Similarly, Don Shaffer denied on
cross that A.L. frequently made things up beyond
“ordinary, kids fighting.” ‘The missing evidence, on
the other hand, was not subject to immediate denial
and so would have been less vulnerable to being
discounted by the jury. See Bigelow, 367 F.3d at 565
(holding that additional alibi witnesses were not
cumulative because of the vulnerability of the one
alibi witness called).
Where, as here, the evidence that the jury did
not hear provides specific impeachment evidence, we
have not held it to be “cumulative” merely because
other, less convincing evidence that also happened to
be “impeachment evidence” was heard. See, e.f.,
srown 551 F.3d at 4384-35. And this outcome makes
sense, even under the “substantial d:{ference”
standard in //ill: the ultimate question is not the
analytical difference between the actual trial and a
hypothetical one, but whether the fact of missing
evidence “undermine|s] confidence in the outcome.”
Strickland, 466 U.S. at 694
Accordingly, we hold that, in light of centrality
of credibility to the prosecution’s case and the
strength of the missing impeachment evidence,
Vasquez has demonstrated that but for his counsel's
unprofessional errors there was a reasonable
3jsa
probability that his trial would have had a different
outcome; our confidence in the verdict is indeed
undermined.
IV
Kor the reasons explained, Robert Vasquez
received constitutionally ineffective assistance of
counsel. ‘The Ohio courts’ holding decision of no
prejudice was contrary to clearly established
Supreme Court precedent and Vasquez is therefore
entitled to the writ of habeas corpus. ‘The judgment
of the district court is AFFIRMED.
GRIFFIN, Circuit Judge, dissenting.
1 respectfully dissent. I disagree with the
majority’s conclusions that (1) the Ohio courts
applied law contrary to Strickland v. Washington,
466 U.S. 668 (1984), (2) our review is not constrained
by AKDPA and that de novo review is appropriate,
and (8) Vasquez received constitutionally ineffective
assistance of counsel. In my view, the majority and
the district court have engaged in an impermissible
reconstruction of Vasquez’s trial, failed to avoid the
warping effects of hindsight, and declined to afford a
strong presumption that Attorney Butler’s conduct
fell within the wide range of reasonable professional
assistance Accordingly, I would reverse the
judgment of the district court and deny the petition
for a writ of habeas corpus.
As the majority concedes, the district court
erred by not according proper deference to the state
court’s factual findings and conclusions of law under
the Antiterrorism and Effective Death Penalty Act of
1996 (AE DPA) 28 U.S.C. § 2244. The majority
concludes, however, that de novo review. 1s
bere
nonetheless appropriate because the Ohio courts
apphed law that was contrary to Strickland v.
Washington, 466 U.S. at 668; see Fulcher v. Motley,
444 F.3d 791, 799 (6th Cir. 2006) (when a state court
applies law that is “contrary to” clearly established
federal law, a federal court is unconstrained by §
2254(d)(1) and de novo review is appropriate).
At the outset, I take issue with footnote 1 of
the majority’s opimon. In it, the majority elects to
“focus” its Strickland analysis on the Ohno trial
court’s decision instead of the opinion rendered by
the Ohio Court of Appeals. My colleagues base their
decision on what they characterize as “an apparently
unresolved question about the state decision a
federal court should defer to under AKDPAJ,]”
namely, the majority queries whether an appellate
court decision, governed by an abuse-of-discretion
standard, constitutes “an adjudicatfion}] on the
merits” under AEDPA. 28 U.S.C. § 2254(d) (a federal
court shall not grant the writ “with respect to any
claim that was adjudicated on the merits in State
court proceedings unless... .”)
However, it is well-established that a federal
court reviewing a habeas petition should examine
the decision of the last state court “to [render] a
reasoned opinion on the issuel.]” Payne v. Bell, 41&
38d 644, 660 (6th Cir. 2005), cert. denied, 548 U.S.
YO (2006): see Davie v. Mitchell, 547 F.8d 297, 815
(6th Cir. 2008); Joseph v. Coyle, 469 F.8d 441, 450
(6th Cir. 2006). Nonetheless, the majority contends
that:
lwilhere an appellate court reviews under an
“abuse of discretion” standard, it is not
adjudicating the merits of the claim so much
as the merits of the decision under review.
The question is only whether it fell into what
40a
is presumably a broad band of discretion
AEDPA, however, is meant to secure deference
to the application of federal law by a state
court in its “adjudicatiion] on the merits” of a
petitioner's claim. 28 US.C. § 2254(d)
Accordingly, AEDPA perhaps does not have
anything to say about a state court’s decision
that another state court did not abuse its
discretion — it is concerned only with whether
the actual adjudication of the merits of
petitioner's claim was contrary to, or. an
unreasonable appheation of, federal law.
In “focus|ing]” its analysis almost exclusively
on the Ohio trial court opinion, the majority relics on
Benge v. Johnson, 474 F.3d 286 (6th Cir. 2007) a:
authority. In Benge, the Ohio Supreme Court
analyzed the effect of an unobjected-to jury
instruction in the context of plain-error analysis, not
under the governing, and less burdensome
Strickland standard. We held that “[b]ecause Benge
could have met his burden under = Strickland|,|
despite not being able to demonstrate plain error
[tthe Ohio Supreme Court's] analysis did not
constitute an ‘adjudication on the merits’ of Benge’:
ineffective-assistance-of-counsel claim.” Benge, 474
3d at 246 Indeed, the Ohio Supreme Court’
analysis was extremely limited and consisted of only
two sentences, holding that “even if the jury
instruction 1s deemed improper, such an error will
not mandate reversal unless it constitutes plain
error. In other words, we must determine whethe
‘but for the error, the outcome of the tral clearly
would have been otherwise.” State v. Benge, 66)
N.fe.2d 1019, 1025 (Ohio 1996). The Ohio Supreme
Court neither mentioned Strickland nor the Sixth
Amendment when disposing — ol petitioner
ineffective assistance of counsel claim
lla
In Danner v. Motley, 448 F.3d 372 (6th Cir
2006), we reached a similar conclusion ln our
review oft petitioner's asserted Strickland e1 ror, there
was “no indication in the trial court’s comments that
if examined Danner’s Sixth Amendment claim. Nor
[was] there evidence in the Kentucky Supreme
Court's opinion that it considered the Sixth
Amendment at all in ruling on Danner’s claim.’
Danner, 448 F.3d at 376. We noted in Danner that
“lajny consideration of the Sixth Amendment
contained within the state case law upon which the
state courts relied is too attenuated to consider the
Sixth Amendment claim to have been ‘adjudicated on
the merits.’ ld
Mur decision In Benpe and Danner were
primarily concerned with the state court's cursory
treatment of the petitioner's Strickland claims and
are theretore harmonious with the rule stated in
Payne and Dav we must review “the last state
court [decision] to jrender]| a reasoned opinion on the
issue|.|° Payne, 418 F.8d at 660 (emphasis added)
Unhke the state court decisions in Ben; and
Danner th tate appellate court pinion mn thr
present case engaged in reasoned and comprehensive
analysis of Vasquez’s claims under Strickland. Thi
case 1 readily distinguishable from Henge and
Danner because those Gdecis1ol complete ly
overlooked Strickland The CONnCCTYH addr ed 11)
the senge and Danner cit ISlon ir¢ Imply Hot
LiL poite ated he re
Thu | respectfully ft with — the
majority s approach and its characterization of Benge
and Danner 1 would adhere t} rule established
by Payne ati Bell and review the Ohio Court of
url
12a
to [render] a reasoned opinion on the issue.” Payne
418 F.3d at 660 (6th Cir. 2005)
Next, the majority concludes that the Omo
‘ourts appled law contrary to Strickland
Washington by allegedly eclevating the burden of
persuasion necessary to sustain Vasquez's ineffective
ass'stance of counsel claim. ‘The mapyority thereatter
launches into de novo review, reconstructing the
state court trial record analyzing “cold” post
conviction hearing testimony, and eventually holding
that Vasquez is entitled to habeas rehef
In Williams ¢ laylor, 529 U.S. 862, 386
(2000), the Supreme Court emphasized our limited
role under AKDPA in adjudicating claims of state
PrISONCT;
[ljt seems clear that Congress intended federal
udves to attend with the utmost care to state
court decisions, including all of the reason
upporting their decision before concluding
that those proceeding were Infected by
constitutional error ulliciently eriou LO
warrant the l uance of the writ
(iJederal habeas courts must make as. the
larting point ol then analy: the tate
courts’ determinations of fact, including that
aspect ol a mixed question that rest On a
finding of fact AR DPA plainly sought to
€)) ire ih lf Ve Of deference LO at
determinations of state court provided thos
determination did not contlict with ftederal
law or apply federal law in an unreasonablk
Wary Hi.kk. Cont. Rep. No. 104-5 D. B33
( | S$*dt>) (1.0 rr vA hed to curb ade t\ {
rye nt “retrial deral hal (|
1a
rive effect to state convictions to the extent
po sible Unae) law When ic cle rat court:
able to fulfill these goals within the
t tae law, AEDPA instructs them to do
are
bounds of
stl?
The Strickland prejudice standard
the petitioner to “show that there 1:
at
probability that but for counsels
require
ci reasonable
unprofessional
Crrors, the res ult ot the procecaing Wo iid h ive been
different. Strickland. 166 US. at 694 liere,
majority holds that the Olio trial courts
was contrary to Strickland because i
thre
de ISslon)
Opto state
that prejudice occurs When “the result of petitioner:
trial or legal proceeding would have been different
had defense counsel provided proper representation
(lumphasi added.) \ccording to the majority, the
trial courts omission of the word reasonable
probability) in its recitation of the prejudice standard
resulted ain its appheation of a= ditterent, more
demanding measure of proof \lso, the majority
note that thie Ohio Court Ol] \ppeal correctly
articulated the Strickland prejudice standard, but
later omitted the words “reasonable probability ou
il disecu LOT) Niy colleague Cham that eat
appellate COULT accurak recitation of tt) law
neimher ured the tmal court ileged error not
evidenced the cL pre late court mppimcalion of th
proper burden of prool Ll disagrees
In = 6OW ! thi Supreme Court defined
LIDPA's rary t Lhe ord ‘contrary 1
\) t }
i Lie | | al { ) ( rl
ETE a Da MR a a
EPMO IPB MERE, CART I NE YET Ena
AAa
commonly understood to mean ‘diametrically
different, ‘opposite in character or nature, or
‘mutually opposed.” 529 US. at 405 (quoting
Webster's Third New International Dictionary 495
(1976))
that the state court’s decision must be substantially
different from the relevant precedent of this Court.”
Id.; lvory vo. Jackson, 509 F.8d 284, 291 (6th Cir.
2007) (state-court decision is considered ‘contrary to
Clearly established federal law if it) 1s
‘diametrically different, opposite in’ character or
nature, or mutually opposed.”’) (citation omitted).
In interpreting § 2254(d), the Court employed
the following example of an application of law that 1:
“contrary to’ clearly established federal law:
Hoa state court were to reject a prisoner's
Claim of ineffective assistance of counsel on
the yrounds that) the prisoner had not
established by a preponderance of the evidence
that the result of his criminal proceeding
would have been different, that decision would
be “diametrically different,” “opposite in
character or nature,” and “mutua..y opposed”
to our clearly established precedent because
we held in Strickland that the prisoner need
only demonstrate a reasonable probability
that 2... the result of the proceeding would
have been different.”
Williams, 529 U.S. at 405-06 (eiting Strickland, 466
US. at 694) (emphasis added)
In the present case, to accept the majority’
position, a federal judge must conclude that the
4 Ba
omission of the words “reasonable probability’? from
the state courts’ description of Strickland’s prejudice
standard resulted in an applhcation of a
“diametrically different” burden of persuasion. Such
a conclusion is not supported by the facts and the
| aWw.
In Woodford v. Visciottt, 5387 U.S. 19, 28-24
(20°) (per curiam), the Supreme Court held that a
vate Court's “occasional shorthand reference” to the
Strickland prejudice standard “may perhaps’ be
imprecise,” but 101s not a repudiation of the standard
that results in a decision that is contrary to clearly
established federal law. In Viscuolts, the Court
reversed the Ninth Circuit’s decision that had held
that a state court’s use of the word “probable” was a
standard of prejudice contrary to Strickland:
The Court) of Appeals made no effort to
reconcile the state court’s use of the term
“probable”? with its use, elsewhere, 9 of
Strickland’s term “reasonably probable,” nor
did it even acknowledge, much less discuss,
the Cahfornia Supreme Court’s — proper
framing of the question as whether the
evidence “undermines confidence” in the
outcome of the sentencing proceeding. ‘This
readiness to attribute error 1s inconsistent
with the presumption that state courts know
and follow the law. See, e.g., Parker v. Dugger,
49% U.S. 3808, 314-816 (1991); Walton v.
Arizona, 497 U.S. 639, 653 (1990), overruled
on other grounds, ting v. Arizona, 536 U.S.
584 (2002); LaVallee v. Delle Rose, 410 U.S.
As previously noted, the Ohio Court of Appeals recited the
correct Strickland standard, verbatim, at the beginning of its
Op ton
Aoba
90, 694-695 (1973) (per curiam). It 1s also
incompatible with § 2254(d)’s “highly
deferential standard for evaluating state-court
rulings,” Lindh v. Murphy, 521 U.S. 320, 338,
n. 7 (1997), which demands that state-court
decisions be given the benefit of the doubt.
Visciotti, 537 U.S. at 24 (emphasis added). The
Visciolli opinion also suggests that a state court’s
accurate citation of Strickland evidences | its
application of the proper burden of proof. Visciottt,
537 U.S. at 22. Here, both state court decisions
either correctly cite to Strickland or articulate the
proper burden of persuasion standard.
Moreover, the Supreme Court has reversed
our circuit on grounds substantially similar to the
position espoused by the majority. In Jackson ov.
Holland, %O FF. Appx 3892 (6th Cir. 2008
(unpublished), revd 542 U.S. 649 (2004) (per
curiam), we had held that a state court’s use of
language at odds with Strickland evidenced its
application of an elevated burden of proof:
Although the [state] court initially quoted the
“reasonable probability” language of
Strickland, it immediately followed — this
statement with language that “[iJn a_ post-
conviction proceeding, the defendant has the
burden of proving his allegations by = a
preponderance of the evidence.” The [state]
court later stated “it 1s asking too much that
we draw the inference that the jury would not
have believed Hughes at all had Melissa Gooch
testified.” furthermore, the state court
concluded that Jackson “failed to carry his
burden of proving that the outcome of the trial
would probably have been different but for
those errors.©
PRR? MaRS CERRY EEN tp ena Ig GIT IS
"In evaluating [petitioner’s| contention
that the lower court should have reopened the
proof in the collateral proceeding to allow
Melissa Gooch to testify, the Tennessee Court
of Appeals also stated that Gooch’s statement
“does not lead to the conclusion that the jury
would have decided the case differently had it
heard Gooch testify.”
Kven keeping mindful of the deferential gaze
that we must cast upon the ‘Tennessee Court
of Criminal Appeals’s decision, we must
conclude that the state court merely paid hp
service to Strickland’s reasonable probability
tandard before IM po: my an inappropriately
stringent burden upon [petitioner]. © Other
than the initial articulation of the Strickland
standard, there is absolutely no evidence that
the state court analyzed Petitioner's claim
under the proper “reasonable probability”
standard. Indeed, all evidence within. the
opinion is to the contrary.
Jackson, 80 F. Appx at 407, n.6, 409 (emphasis in
onyinal) Qnternal quotation and citation omitted).
The Supreme Court reversed, Holland vu.
Jackson, 542 U.S. 649, 654-55 (2004) (per curiam),
holding that the stace court’s initial recitation of the
correct Strickland standard sufficiently established
that it understood and applied the proper burden of
proof, notwithstanding its “shorthand” references to
,
it throughout the remainder of its opinion:
3
‘
i
Aa
The Sixth Circuit also erred in holding that
the state court acted contrary to federal law by
requiring proof of — prejudice by a
preponderance of the evidence rather than by
a reasonable probability. ‘The state court
began by reciting the correct Strickland
standard:
“IT he defendant must show that there
is a reasonable probability that, but for
counsel’s unprofessional errors, the
result of the proceeding would have
been different. A reasonable probability
is a probability sufficient to undermine
confidence in the outcome.” App. to
Pet. for Cert. 95 (quoting Strickland,
466 U.S., at 694)
The Sixth Circuit nevertheless concluded that
the state court had actually applied a
preponderance standard, based on_ three
subsequent passages from its opinion.
rirst was the statement that “[:]Jn a_post-
conviction proceeding, the defendant has the
burden of proving his” allegations by a
preponderance of the evidence.” App. to Pet.
for Cert. 95. In context, however, this
statement is reasonably read as addressing
the general burden of proof in postconviction
proceedings with regard to factual contentions
for example, those relating to whether
defense counsel’s performance was deficient.
Although it is possible to read it as referring
also to the question whether the deficiency
Was prejudicial, thereby supplanting
Strickland, such a reading would needlessly
create internal inconsistency in the opinion.
£
i
-
3
a Eckley Pet ae cies
Be aa tate he Oa ED ert et ae ea a ee
49a
second was the statement that “it is asking
too much that we draw the inference that the
jury would not have believed Hughes at all
had Melissa Gooch testified.” App. to Pet. for
Cert. 96. Although the Court of Appeals
evidently thought that this passage intimated
a preponderance standard, it 1s difficult to see
why. ‘The quoted language does not imply any
particular standard of probability.
Last was the statement that respondent had
“failed to carry his burden of proving that the
outcome of the trial would probably have been
different but for those errors.” Jd., at 98. We
have held that such use of the unadorned word
“probably” is permissible shorthand when the
complete Strickland standard is clsewhere
recited. See Woodford v. Visctottt, 537 U.S. 19,
23-24 (2002) (per curiam).
As we explained in Visciotti, § 2254(d) requires
that “state-court decisions be given the benefit
of the doubt.” Id. at 24. “[R]jeadiness to
attribute error 1s inconsistent with the
presumption that state courts know and follow
the law.” dbid. The Sixth Circuit ignored
those prescriptions.
The judgment of the Sixth Circuit is reversed,
and the case 1s remanded for further
proceedings consistent with this opinion.
Id.; see also Urban v. Ohio Adult Parole Auth., 116 F.
Appx 617, 627 (6th Cir. 2004) (unpublished)
(discussing Visetotti and Jackson and rejecting
petitioner's argument that a state court’s shorthand
description of Strickland, specifically, its statement
that the “outcome probably would have’ been
BERL MON GLO ES AEB nk EADS Se
5Oa
different,” resulted in its application of an elevated
burden of proof under Strickland).
In the present case, 1t 1s undisputed that the
Oho Court of Appeals began its) opimion— by
articulating the correct Strickland burden of
persuasion standard. In the words of Judge
Karpinski, writing for the Court of Appeals of Ohio,
Kighth District:
A defendant must demonstrate that trial
counsel’s performance fell below the objective
standard of reasonable competence under the
circumstances and that there exists a
reasonable probability that, but for such
deficiency, the outcome of the trial would have
been different. State v. Bradley (1989), 42
Ohio St. 38d 1386, 538 N.E.2d 373.
State v. Vasquez, No. 82156, 2004 WL 385766, at *3
(Ohio Ct. App. Jan. 8, 2004). The court of appeal’s
citation to State v. Bradley is significant because in
it, the Ohio Supreme Court accurately followed and
apphed the “reasonable probability” — prejudice
standard of Strickland. Bradley, 538 N.K.2d at 380.
The concluding paragraphs’ of dudge
Karpinski’s reasoned opinion on this ineffective
assistance of counsel claim are consistent with the
law of Strickland, although the words “reasonable
probability” are not reiterated:
During his post-conviction hearing, defendant
presented numerous witnesses who did not
testify at his tmal. Their absence, however,
does not demonstrate his counsel was
ineffective and that the outcome of his trial
would have been different had they been
witnesses during his trial.
BPA Pig AMO
a eas
OTD
Re ee seem SORTER ei rteR eR es DAT iy
dla
Qn the contrary, the record shows that none of
defendant’s witnesses offered any testimony to
upport defendant's theory of innocence. None
of their testimony challenges the victim’s
account of the events leading to defendant's
convictions. We agree with the trial court’s
conclusion that “not one of the witnesses who
testified neither the defendant, his family or
others—oftered any testimony that could have
changed the outcome of defendant’s trial.”
Trnal Court Findings of Fact and Conclusions
of Law, p. 25
Vasquez, 2004 WI, 85766, at *6
Nonetheless, my colleagues conclude that,
based on shorthand language used in the opinion,
the Ohio Court of Appeals applied law that was
contrary to Strickland v. Washington. | disagree
In reaching this conclusion, the majority
makes no concerted effort to distinguish the present
case from Viscrottt or Jackson. This is untenable
given the substantially similar imprecise or
shorthand language employed by the state court in
Jackson, which arguably misdescribed Strickland’s
burden of proof. Jackson, 80 F. App’x at 407.
Also, the majority reasons that because the
state trial court opinion consistently omits the words
“reasonable probability,’ such an omission creates a
stronger inference of a heightened standard of proof
than an opinion that correctly recites the standard
once and thereafter misdescribes it. However, the
Recuuse the majority focuses its analysis on the state tral
court opinion, it is necessary for me to address the tral court’s
OUMMISS1LON of the words “reasonable probability” instead ot
reviewing only the appellate court’s decision
PEE ES GEE LEE REDE IEE TT PR GES Senge tear tet
state trial court) opimon accurately cites both
Strickland and State v. Bradley; see Visetotti, 537
U.S. at 22 (suggesting that a state court decision’s
accurate citation to Strickland indicates that it
knows the law and the applicable burden of proof)
Under Visctottt and Jackson, the state court
opinions employed permissible shorthand language
describing Strickland’s prejudice standard, which did
not result in their application of a “diametrically
different” burden of proof under Williams See
Visciotti, 5387 U.S. at 24; Jackson, 542 U.S. at 654:
Williams, 529 U.S. at 405-06; Urban, 116 F. App’x at
627. ‘The majority's “readiness to attmbute error 1s
inconsistent with the presumption that state courts
know and follow the law. It is also incompatible with
§ 2254(d)’s ‘highly deferential standard — for
evaluating state-court rulings’... which demands
that state-court decisions be given the benefit of the
doubt.” Visctottt, 537 U.S. at 24 (emphasis added)
(citation omitted).
lor these reasons, I respectfully disagree with
the majoritys conclusion that the Ohio courts
apphed law contrary to Strickland v. Washington.
The majority has made a fundamental error. Our
review of Vasquez’s petition for a writ of habeas
corpus should be constrained by AE DPA deference,
not de novo
Il
The final issue is whether the Ohio Court of
Appeals unreasonably applied Strickland to the
facts. 28 U.S.C. § 2254(da)Q0). | concur with the
majority Opimon insofar as it holds that Vasquez
cannot base his ineffective assistance of counsel
argument on his” failure to investigate Karra
Vasquez and JoAnn Kitchen. Again, pursuant to
PRES eens times. Foshere tay AAD Ay meH Ee
don
Payne and Davie, my analysis focuses on the state
appellate court opmion because it is the last state
court to render a reasoned decision on this claim.
A state court decision unreasonably applies
federal law “if the state court identifies the correct
governing legal principle from the Supreme Court’s
decisions but unreasonably applies that principle to
the facts.” Trick v. Bell, 565 F.8d 315, 820 (6th Cir.
2009) Cnternal quotation omitted) “IA] federal
habeas court may not Issue a writ under the
unreasonable application clause ‘simply because that
court concludes in its independent judgment that the
relevant = state-court decision apphed — clearly
established federal law erroneously or mecorrectly.””
ld. (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)
(nternal quotation and citation omitted)). “[T]}he
question under AEDPA 1s not whether a federal
court beheves the state court’s determination was
incorrect|,J but whether that determination was
unreasonable a substantially higher threshold.”
lrick, 565 F.8d at 820 (quoting Owens v. Guida, 549
8d 399, 404 (6th Cir. 2008) (internal quotation and
Citation omitted)). After assuming my proper role, |
would hold that the QOmo courts did not
unreasonably apply Strickland
For Vasquez to succeed on a claim for
Ineffective assistance of counsel, he must satisfy the
well-rehearsed two-prong Strickland test:
lirst, the defendant must show that counsel's
performance was defiment. ‘This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
sixth Amendment Second, the defendant
must show that the defiment performance
preyudiced the defense. ‘This requires showing
Re PPR GEL OA RES OT EF OR IEEE RIES ay CTR ARIE RED Ee PE as eet
b4da
that counsel's errors were so serious as. to
deprive the defendant of a tam trial a tmal
whose result us reliable
A66 U.S. at 687
Moreover:
Judimial scrutiny of counsel's” performance
must be highly deferential, lt as all too
tempting for a defendant to second-ues:
counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court,
examining counsel's defense after it ha:
proved unsuccessful, to conclude that a
particular act or omission of counsel was
unreasonable .... Because of the difficulties
inherent in making the evaluation, a court
must imdulge a_-strong presumption that
counsel’s conduct falls within the wide range
of reasonable professional assistance; that 1s
the defendant must overcome the presumption
that, under the circumstances, the challenged
action might be considered sound | trial
strategy. There are countless ways to provide
effective assistance in any given case. Even
the best criminal defense attorneys would not
defend a particular client in the same way
fd. at 689 Qnternal quotation and citation omitted:
emphasis added).
This high level of deference means that “|wle
address not what is prudent or appropriate, but only
what is constitutionally compelled.” United States '
Cronic, 466 U.S. 648, 665, n.88 (1984) (emphasis
added). In addition, “[s]trategic choices made atte
thorough investigation of law and tacts relevant to
plausible options are virtually unchallengeable; and
strategic choices made atter less than complete
investigation are reasonable precisely to the extent
that reasonable professional judgement Uupport thre
hmitations on wnvestigation Harnes bel Pet
Pho38d 1025, 1029 (6th Cir. 2000) (quoting Strickland
166 U.S. at 691)
\t the state court level, Va (pute MeTLeCliVve
il istTANCE Ol COUT C| claim challenged Butler
exclusion of certain tamily member: il potential
delense witnesses Because | CUE Tere with = thi
majority that Vasquez cannot base his inettective
assistance of counsel claim on the exclusion of Karra
Vasquez and JoAnn Kitchen, my analysis focuse
solely on Butlers performance regarding Becky
Shafter. ‘Thus, if Butler’s decision to exclude Becky
Shatter from his potential defense witnesses was, a
+} {
ie Ohio COUPTLS concluded ba ed Olli Fea oned trial
strategy and judgement, the issue is resolved
Che Ohio Court of Appeal concluded that “thi
record shows that none of defendants witness
offered any testimony to support defendant's theory
of innocence. None of their testimony challenges the
victims account of the events leading to detendant
convictions. We avree with the tmal court {1
reaching its conclusion, the appellate court rehed on
the following tindineg Ol tact et forth iam the ite
trial court decision
butler testified that atter he wa i ined to
the case about six weeks atter arraignment, he
reviewed the Courts file mal Clerk 3 Ollie
docket, met with tn chent ascertained that
his chent would not sign a speedy trial waive)
pursuant to the Court's concern about time
ma proceeded 11) mediately to a) duct
research and prepare tor tral, Butler tiled the
appropriate discovery motions [and} met wath
his chent at subsequent scheduled pre-trial
butles Cxplamed that he didnt
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other a Lion Ol CAL 1)
membe would =] war Oo}
legation by Vial ylit Ou? ‘ }
Ccatitornia
ihe delendant t hed that whit
hal even he could not react an
ter-in-law Becky IShatter] or |
law, doAnn Kitchen: none of the
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petitioner oll bea cl ¢ ihe
reodbuttin thi Prestuunptlrol Set War
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ln fact, the district court: Opin mn challenged
only one finding of fact upon which the. state
appellate court rehed pecitically thre fact that
“IBecky Shatter] suspected or was concerned that
Va QuULeZ had sexually abused Lhe Ut) Phe ai trict
court found that “Becky Shatter factually] testified
that she took he) mn Aaron to the hospital on thi
might of August 4, 2000, because Steve Loomis and
listrict court further noted that
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ppellate reliance upon thi tual finding by
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THE COURT: — of rape and you wanted to see
whether or not your son had been abused?
BECKY SHAFFER: Yes.
VASQUEZS COUNSEL: I’m sorry, What was
your answer?
THE COURT: She said yes.
VASQUEZ’S COUNSEL: Thank you very
much.
kkk
VASQUEZ’S COUNSEL: You said this ts an
emotional situation, correct?
BECKY SHAFFER: Yes.
VASQUEZ’S COUNSEL: So obviously this is a
very serious situation?
BECKY SHAFFER: Very.
VASQUEZS COUNSEL: And you suspected
that the same thing might have happened to
your son, that’s how serious it was.
BECKY SHAFFER: I didn’t know. Yes.
Mereover, the remaining factual findings
relied upon by the state appellate court remained
uncontroverted by the district court.4 Specifically,
4 Attorney Butler was appointed to represent Vasquez
approximately six weeks before his trial. On the same day that
he was appointed, Butler met with Vasquez and asked him to
execute a speedy trial waiver. Vasquez refused. Butler filed
appropriate discovery requests, researched and prepared for
trial, and met with Vasquez on several occasions. Butler
decided to exclude Becky Shaffer because she was not present
at the time the alleged rape occurred (she was asleep in a
separate apartment, two floors above the basement level, which
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there 1s ample evidence supporting the appellate
court’s decision to affirm the state trial court’s ruling
that Vasquez’s family members, including Becky
Shaffer, were uncooperative and unsympathetic to
his defense. Butler’s decision to forgo contacting
Becky Shaffer is not so “incredible” amid swirling
family-based allegations of spousal abuse and
separate family-based allegations of sexual
molestation. In addition, Becky Shaffer was slated
to testify for the prosecution. Moreover, during the
post-conviction hearing, Becky Shaffer admitted that
she suspected that Vasquez had sexually abused her
son, a damning accusation if revealed during his
‘ape trial, and arguably evidencing’ Butler’s
reasonable fears about Vasquez’s family’s proclivity
for damaging and harmful testimony.
‘The majority claims that Butler knew that
“Becky Shaffer was ideally situated to provide
information on the only avenue of defense available
to Vasquez” and that she was likely to have “relevant
information.” The majority also asserts that Butler
could have contacted Becky Shaffer independently.
These statements are speculative. Furthermore,
was the alleged crime scene), she was a close family member
(Vasquez was married to her sister), and that Butler was
concerned that Vasquez’s family members would testify or
reveal details about the separate molestation allegations levied
by Vasquez’s mece in Cahfornia. When Butler eventually
reached JoAnn Kitchen, she informed him that the family
“wias] not going to cooperate [] [] in any way” with his defense,
and that she had recently learned that Vasquez had been
abusing her daughter (Vasquez’s wife, Karra) for “an extended
period of time.” During this same six-week period, Vasquez
testified that he had been “abandoned by his family,” including
the same family members the majority now contends could have
aided in his defense. Vasquez made several attempts to contact
Becky Shaffer, but she never responded.
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according to Vasquez’s own testimony, credited by
the state trial court, he had been “abandoned by his
family” during the six weeks before his trial and had
made several attempts to contact Becky Shaffer, but
to no avail. Vasquez’s concern regarding his family’s
abandonment appropriately influenced Butler’s
reasoned and strategic decision not to pursue certain
defense witnesses, including Becky Shaffer.
As the Supreme Court has stated:
(t]he reasonableness of counsel’s actions may
be determined or substantially influenced by
the defendant’s own statements or actions.
Counsel’s actions are usually based, quite
properly, on informed strategic choices made
by the defendant and on information supplied
by the defendant. In particular, what
investigation decisions are reasonable depends
critically on such information. For example,
when the facts that support a certain potential
line of defense are generally known to counsel
because of what the defendant has said, the
need for further investigation may be
considerably diminished’ or _— eliminated
altogether. And when a defendant has given
counsel reason to believe that pursuing certain
investigations would be fruitless or even
harmful, counsel’s failure to pursue those
investigations may not later be challenged as
unreasonable.
Strickland, 466 U.S. at 69) (emphasis added).
The district court and majority rely heavily on
Ramonez v. Berghuis, 490 F.3d 482, 484 (6th Cir.
2007) in support of their conclusion that in making
his decision regarding Becky Shaffer, Butler was not
functioning as the counsel guaranteed by the Sixth
E
=
=.
Ola
Amendment. In Ramonez, however, the excluded
defense witnesses actually witnessed the altercation
that gave rise to the defendant’s conviction.
Ramonez, 490 F.3d at 488 (concluding that attorney’s
decision to exclude defense witnesses was
constitutionally deficient because defendant insisted
“months before trial” that the three witnesses at
issue could testify to what they saw when they
witnessed the altercation, and that each witness
could testify that defendant did not force his way
into the victim’s home). Here, however, Becky
Shaffer did not witness the crime. In fact, there
were no witnesses to the alleged crime other than
A.L. and Vasquez. Becky Shaffer’s favorable
testimony, if any, would be limited to impeachment,
only. Thus, Ramonez is easily distinguishable from
the present case.
The majority also holds that Butler was
ineffective in failing to pursue potential
impeachment evidence contained in an Emergency
Medical Services report form (EMS run sheet). The
hearsay evidence contained in the EMS report can be
summarized as follows: When A.L. described the
attack to the paramedics, she allegedly stated that
“he put it in.” The EMS run sheet also reports that
A.L. “took a shower later that day.”
The state appellate court did not rule on this
issue, and the record does not reveal whether this
claim was abandoned on appeal. Nonetheless, the
state trial court decision (the last state court to
render a reasoned decision on this matter) ruled that
Butler's failure to impeach A.L. with the EMS run
sheet did not prejudice Vasquez’s defense because “it
was consistent with her trial testimony.” In its
finding of facts, the state trial court found as follows:
SOreihy
Be ce os ai aka ane set ane LRA i Ak RR AS a a i
62a
(3B) Claim that Counsel Did Not Cross-
examine Victim Regarding EMS “Run Sheet”:
At the hearing, Butler was presented
with an unauthenticated copy of an
Kmergency Medical Services “run
report” of the evening that [A.]lL.] was
transported to the hospital. The
defendant asked questions of Butler
concerning the fact that an unidentified
person wrote thereon: “pt. st. he put it
in her.” Apparently defendant was
attempting to show, as he claimed via
his Investigator’s affidavit in his
Supplement, that this notation “is in
complete contradiction to [A.L.’s] trial
testimony”. Tom Pavlish’s Affidavit at
para. 4. Butler testified that his
understanding of this case was that it
was oral sex, more specifically, that
[A.L..] accused the defendant of putting
his tongue in her — he had_= no
information that it was anything else.
The majority contends, however, that this
conclusion is not a factual finding entitled to
deference under § 2254(e)(1) because “this {|
reasoning is actually a holding that Vasquez has not
carried his burden to show prejudice resulting from
his attorney's failure to identify the run sheet as
useful impeachment evidence.” | disagree. The trial
court's finding was based in- part on_ its
determination that A.L.’s_ trial testimony was
consistent with her EMS run sheet statements. At
the very least, it is a mixed question that rests on a
finding of fact, which is entitled to AEDPA deference.
See Williams, 529 U.S. at 389.
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63a
To establish prejudice, Vasquez “must show
that there is a reasonable probability that, but for
[Butlers failure to discover this impeachment
evidence], the result of the proceeding would have
been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In addition,
AEDVPA deference requires that we review the state
trial court’s decision for “unreasonable|[ness] — a
substantially higher threshold.” Jrick, 565 F.3d at
320 (quoting Owens, 549 F.3d at 404) (nternal
quotation and citation omitted).
I disagree with the majority's holding that
Butler’s failure to impeach A.L. with the information
contained in the EMS run sheet creates a reasonable
probability that but for his failure to do so, the result
of his tral would have been different. See
Strickland, 466 U.S. at 694. A.L.’s statements, as
reflected in the EMS run sheet, do not contradict her
trial testimony. A.L. testified at trial that Vasquez
“lick{ed] [her] private spot... [with] his tongue,” and
answered “both” when asked on direct examination
whether he had touched her on “the inside or outside
or both.” Thus, her statement that “he put it in” 1s
consistent with her trial testimony.®
’ Vasquez also argues that Attorney Butler was constitutionally
ineffective for failing to cross-examine A.L. regarding an
ambiguous notation in the IMS run sheet, that she “took a
shower later that day.” In its finding of facts, the state trial
court found as follows:
Mr. Pavlish states in his affidavit that information in
the EMS report also states “pt. st. she took a shower
later that day” is inconsistent with Stephen Loomis’s
testimony that “immediately after the incident [A.L.]
fell asleep in his truck during the drive home and that
Pee esc ai bee dsc HORS Sak AL A delice RRA a eae ie ee a as ERT ea oe
64a
As we have explained, “in order to establish
prejudice, the [] evidence . . . must differ in a
substantial way — in strength and subject matter —
from the evidence actually presented... .” Hill v.
Mitchell, 400 F.3d 308, 319 (6th Cir. 2005). As the
majority concedes, Butler repeatedly impeached A.L.
and other’ state witnesses concerning A.L.’s
trustworthiness and ability to tell the truth.
Most importantly, after according proper
AKDPA deference, I do not agree that the Ohio
courts unreasonably applied Strickland to the facts.
Butler's conduct regarding Becky Shaffer was
“reasonable precisely to the extent that [his]
reasonable professional judgment|| support{ed] th[at]
limitation[] on [his] investigation|,]” Strickland, 466
U.S. at 691, and the EMS run sheet does not contain
impeachment evidence that is substantially different
in strength and subject matter from the
impeachment evidence presented at trial. Hill, 400
F.3d at 318-19.
“The question under AEDPA is not whether a
federal court believes the state court’s determination
he carried her into his home as she slept.” Tom Pavlish
Affidavit at para. 6. At the hearing, counsel asked
Butler questions concerning this notation, to which
Butler replied that the night [A.L.] was transported, she
had reported an incident that took place two weeks
prior.
The potential impeachment of A.L. regarding this collateral
matter is only marginally relevant to the issue of whether the
sexual molestation occurred. For this reason, it is not
“reasonably probable” that the outcome of the trial would have
been different had this collateral impeachment occurred. Most
importantly, the more demanding standard of an unreasonable
application of Strickland is clearly not met.
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was incorrect but whether that determination was
unreasonable — a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Here, the Ohio state court decisions were not
unreasonable.
In conclusion, the following comments by the
Ohio trial court judge to Vasquez regarding the
performance of his attorney are illuminating:
Based upon the fact that I had to sit through
this trial just like everybody else did, it’s
probably one of the most depressing things I
had to do in the last eight years, quite frankly.
I’m not looking forward to saying that my last
trial was probably my worst, but I think you[r]
attorney did everything he could to try to
convince the jury that you weren't guilty as
charged. | think Mr. Butler didn’t have a lot
to work with.
IV.
lor these reasons, | respectfully dissent. I
would reverse the judgment of the district court and
deny the petition for a writ of habeas corpus.
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66a
APPENDIX C
No. 1:05 CV 1684
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
KASTERN DIVISION
ROBERTS. VASQUEZ,
etittoner,
Vv.
MARGARET BRADSHAW, Warden
Respondent,
Filed: October 3, 2007
Judge Dan Aaron Polster
MEMORANDUM OF OPINION
AND ORDER
sefore the Court is the Report = and
Recommendation of Magistrate Judge George J.
Limbert (“R&R”) (ECF No. 35). Pending is the
Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus By A Person In State Custody, filed by
Petitioner Robert S. Vasquez! (the “Petition”) (ECF
No. 1). For the following reasons, the Court declines
to adopt the R&R and CONDITIONALLY GRANTS
the writ.
I. PROCEDURAL BACKGROUND
| Petitioner shall be referred to as “Vasquez” or “Petitioner”
throughout this Opinion.
67a
On December 18, 2000, Vasquez was
sentenced to life imprisonment for his conviction on a
rape charge. (KCF No. 31-4, Ex. 3, Judgment Entry.)
Iie was also sentenced to nine years’ imprisonment,
to run concurrently, for his conviction on a
kidnapping charge. (/d.) Vasquez was represented
at trial and at sentencing by attorney Donald Butler.
On March 7, 2000, more than one month after the
expiration of his time for filing a direct appeal,
Vasquez filed a pro se notice of appeal of his
conviction. (KCF No. 31-5, Ex. 4, Notice of Appeal.)
On March 21, 2001, newly-appointed appellate
counsel Norm Incze filed a motion for leave to file a
delayed direct appeal. (CF No. 31-6, Ex. 5, Motion
for Leave to File Delayed Appeal.) On April 6, 2001,
attorneys Mark Marein and Steven Bradley (new
counsel retained by Vasquez’s family) filed another
motion for leave to file delayed direct appeal. (ECF
No. 31-7, kx. 6, Motion for Order Granting Leave of
Court File Delayed Appeal Instanter.) The Ohio
Court of Appeals granted Vasquez leave to file a
delayed direct appeal on April 12, 2001. (ECF No.
31-8, Ix. 7, Journal Entry.) After receiving the
parties’ briefs, the appellate court affirmed the
convictions in a decision issued November 1, 2001.
(ECF No. 31-12, Ex. 10, Journal Entry and Opinion.
See also, State v. Vasquez, No. 79319, 2001 WL
1352781, 2001 Ohio App. LEXIS 4910 (Ohio Ct. App.
Nov. 1, 2001).) Vasquez did not appeal this decision
to the Ohio Supreme Court.
On July 23, 2001, while his direct appeal was
pending in the Ohio Court of Appeals, attorneys
Marein and Bradley filed a motion for leave to file a
motion for new trial in the Court of Common Pleas.
(CF No. 31, Ex. 11, Motion for Leave to File New
Trial Motion Instanter (previously filed at ECF No.
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13).) The trial court (Judge Robert Glickman?)
granted leave to file a motion for new trial. (CIF No.
31-13, Ex. 12, Journal Entry.) One week later, the
trial court vacated its order and held the motion for
leave in abeyance until the Ohio Court of Appeals
ruled on Vasquez’s appeal. (ECF No. 31-14, Ex. 13,
Journal Entry.)
While his direct appeal was pending, attorneys
Marein and Bradley also filed a petition for post-
conviction relicf in the trial court, accompanied by
affidavits from witnesses Vasquez claimed would
have testified at trial had = attorney Butler
investigated the case properly. (Post-Conviction
Hearing Findings, at 1-2.) These affiants/would-be
witnesses included Ms. ‘tammy Salopek; Ms. Ashley
Snyder; Ms. Joanne Kitchen; Ms. Becky Shaffer (nee
Kgbertson®) (“Becky Shaffer” or “Becky’); and Ms.
Karra Vasquez (“Karra Vasquez” or “Karra’4).® (dCF
4 Judge Frank D. Celebrezze, Jr., who presided over the trial
and sentencing, was no longer sitting on the Cuyahoga County
Court of Common Pleas, having been elected to the Ohio Court
of Appeals, Eighth Appellate District in November of 2000.
3 At the time of the alleged incident and subsequent trial,
Becky’s last name was Egbertson, and she was engaged to be
married to Don Shaffer. Don and Becky married in February of
2001, at which point Becky took Don’s last name and became
Becky Shaffer, which was her name at the time of the
postconviction hearing. For simplicity’s sake, the Court will
refer to Becky Shaffer rather than Becky Egbertson throughout
this Opinion.
4 Ms. Vasquez’s name is spelled differently throughout the
Record, sometimes as “Karra” and spelled “Kara” at other
times. The Court uses “Karra” in this Opinion, as that is the
spelling used in the postconviction hearing transcript.
° Though Vasquez’s initial petition for post-conviction relief
only listed Karra Vasquez and Kitchen, Vasquez later filed,
with leave of court, a supplemental memorandum that added
it
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No. 81-15, Ex. 14, Petition for Post-conviction Relief.)
On May 14-17, 2002, Judge Glickman held a hearing
on both the petition for post-conviction relief and the
motion for new trial, at which the affiants testified.
(ECE No. 31, Exs. 387-38.) Butler and Vasquez also
testified.6 (/d.) After additional briefing by the
parties, the court denied both the petition and the
motion for leave to file a motion for new trial. (ECF
Nos. 31-37, Ex. 28; 31-38, Ex. 24; 31-39, Kx. 25.)
(The testimony presented at the post-conviction
hearing 1s addressed later in this Opinion.)
Represented again by attorneys Marein and
Bradley, Vasquez appealed the denial of his post-
conviction petition to the Ohio Court of Appeals.
(KCF No. 81-40, Ex. 26.) The appellate court
affirmed the trial court’s denial of Vasquez’s post-
conviction petition. (ECE No. 31-53, Ex. 30, Journal
‘ntry and Opinion; see also ECF No. 31-54, State v.
Vasquez, No. 82156, 2004 WL 35766, 2004 Ohio 53;
2004 Ohio App. LEXIS 47 (Ohio Ct. App. Jan. 8,
2004).)
Represented anew by attorney Karl Rissland,
Vasquez appealed the decision of the Ohio Court of
Appeals to the Ohio Supreme Court. (ECF No. 31-
the additional witnesses. (Post-Conviction Hearing Findings, at
i)
© Vasquez also called Ms. Sally McHugh and Mr. Richard Lillie
as witnesses. McHugh denied in her testimony that she
threatened to remove Karra Vasquez’s children from the home
if she cooperated with her husband’s defense. (Hr’g ‘T'r. 402:17
21.) The State also called witnesses James Chappelle and
Officer Timothy Zbikowski.
The relevant testimony for purposes of the instant
petition, however, is the testimony given by Tammy Salopek,
Ashley Snyder, Joanne Kitchen, Becky Shaffer, Karra Vasquez,
Vasquez, and attorney Butler.
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55, Ix. 32.) On June 9, 2004, the Ohio Supreme
Court denied leave to appeal and dismissed the
appeal as not’ involving any — substantial
constitutional question. (CF No. 31-60, Ex. 36.)
On June 29, 2005, represented by attorney
Gordon Friedman, Vasquez filed the instant habeas
petition alleging the following four grounds for relief:
GROUND ONE: Denial of effective assistance
of [trial] counsel as guaranteed by [the] Sixth
Amendment [to the] U.S. Constitution.
Supporting Facts: Although Petitioner was
facing a life sentence, counsel failed to
adequately meet and discuss the charges.
Counsel met Petitioner only three times in
sessions of 15-20 minutes each.
GROUND TWO: Ineffective assistance of
[trial] counsel.
Supporting Facts: Counsel failed to adequately
investigate [the] case and interview potential
witnesses, including various family members
of Petitioner and individuals present at the
time of the alleged crime.
GROUND THREE: Ineffective assistance of
[trial] counsel.
Supporting Facts: Counsel failed to adequately
prepare for trial. He filed only three
boilerplate motions, none of which were
tailored to the specific charges or facts of
Petitioner’s case. ‘There was no attempt to
challenge competency of minor child. No
attempt to review records of Children’s
Services relating to victim. No Motion to
Appoint Investigator in life case; no Motion for
Independent Psychological Exam of Victim; No
TVla
request of ER Report; no request for EMS
report,
GROUND FOUR: Ineffective assistance of
[trial] counsel.
Supporting Facts: In trying case. Because of
failures above, the cross-examination [of] state
witnesses which led to the admission of
damaging evidence relating to Petitioner that
would otherwise have been inadmissible.
(ECF No. 1, Petition at 4-5.)
On November 38, 2005, Respondent filed a
motion to dismiss the habeas petition as time-barred,
or, in the alternative, to hold the petition in abeyance
pending exhaustion of state remedies on the grounds
that the petition contains both exhausted and
unexhausted claims. (KCF No. 11.) Vasquez filed a
brief in opposition to Respondent’s motion to dismiss
on December 5, 2005. (ECF No. 16.) Magistrate
Judge Limbert issued an Interim Report and
Recommendation on March 29, 2006. (EKCF No. 17)
Both parties filed Objections thereto. (ECF Nos. 18,
21.)
The Court then issued a Memorandum of
Opinion and Order on June 22, 2006, declining to
adopt the Interim Report and Recommendation, and
granting Respondent’s motion to hold the petition in
abeyance, pending exhaustion of Vasquez’s state
court remedies. (ECF No. 23.) In the order, the
Court also found that Vasquez’s first and second
habeas claims were exhausted, id. at 7, his third
claim was procedurally defaulted, id. at 11-12, and
his fourth claim was unexhausted, id. at 14
(incorrectly reciting that “Vasquez’s third ground for
relief is unexhausted.”) because he had not filed a
direct appeal with the Ohio Supreme Court.
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Vasquez returned to state court to fully
exhaust his claims by filing a motion for delayed
appeal with the Ohio Supreme Court. (ECF No. 24.)
On October 4, 2006, the Ohio Supreme Court denied
his motion. (ECF No. 25.) Vasquez filed a notice of
return to federal court on October 25, 2006. (ECF
No. 26.)
Pursuant to the Court’s June 22, 2006 Order,
Magistrate Judge Limbert retained jurisdiction over
the case for a review of the merits upon Vasquez’s
return to federal court. (ECF No. 23, 15.)
Respondent filed a Return of Writ on January 12,
2007, KCK No. 30, accompanied by a_ lengthy
Appendix to Return of Writ containing the entire
record to that point, ECF No. 31 . After receiving an
extension of time, Vasquez subsequently filed his
Traverse to Return of Writ on March 5, 2007. (ECF
No. 34.)
Magistrate Judge Limbert issued his Report
and Recommendation on April 13, 2007,
recommending that the Court dismiss the petition,
on the merits as to grounds (1) and (2), and due to
procedural default for grounds (3) and (4). Vasquez
filed timely Objections to the R&R, ECF No. 37, and
the Court ordered Respondent to respond to the
Objections, to which Vasquez was ordered to file a
reply, ECF No. 38. Respondent filed a response to
Vasquez’s Objections on June 12, 2007. (ECF No.
39.) Vasquez filed his reply on July 26, 2007. (ECF
No. 41.)
Il. FACTUAL BACKGROUND
Pursuant to 28 U.S.C. § 2254(e)(1), the Court
‘is to apply a presumption of correctness to state
court findings of fact for habeas corpus purposes
unless clear and convincing evidence is offered to
cilia ee a
T3a
rebut this presumption.” Benge v. Johnson, 474 F.3d
236, 241 (6th Cir. 2007) (quoting McAdoo v. Elo, 365
F.3d 487, 493-94 (6th Cir. 2004) (citations omitted)).
The Court counts numerous court recitations’ cof “the
facts” in the case record. Notably, however, only
two findings of fact serve as the basis for all the
other recitations; first, the Ohio Court of Appeals’
November 1, 2001 opinion on Vasquez’s direct appeal
(the “Direct Appeal Opinion”), and second, the Ohio
Court ef Common Pleas December 6, 2002 Findings
of Fact and Conclusions of Law issued following
Vasquez’s post-conviction hearing (the “Post-
conviction Hearing Findings”). The other recitations
(whether nominally termed “findings” or otherwise)
of fact relied in whole or in part on the findings from
either or both of the above-mentioned two opinions.
Consequently, any facts that, upon a closer review,
appear erroneous were perpetuated in later opinions.
’ As opposed to “findings” of facts.
® See ECF No. 31, Appendix to Respondent’s Return of Writ,
Ex. 1 (ECF No. 31-2, Lexis version of state appeals court
opinion on direct appeal affirming conviction, State v. Vasquez,
No. 79319, 2001 Ohio App. LEXIS 4910 (Nov. 1, 2001)); Ex. 10
(ECF No. 31-12, Journal Entry and Opinion for same,
Cuyahoga App. No. 79319, Nov. 1, 2001); Ex. 24 (ECF No. 31-
38, Findings of Fact and Conclusions of Law after post-
conviction hearing, Cuyahoga Court of Common Pleas, No.
CRK394976, December 8, 2002); Ex. 30 (ECF No. 31-53, Journal
Entry and Opinion of state appeals court on appeals of denial of
petitioner for post-conviction relief and motion for leave to file
motion for new trial, State v. Vasquez, Cuyahoga App. No.
82156, Jan. 20, 2004 (the “Post-conviction Appeal Opinion”));
Kix. 31 (ECF No. 31-54, Lexis version of same, 2004 Ohio 53,
2004 Ohio App. LEXIS 47 (Ohio App. Jan. 8, 2004)); and CF
No. 17, Interim Report and Recommendation of Magistrate
Judge.
‘
74a
While the Court must generally defer to the
factual findings of the state courts, the Court may
make its own factual findings in place of “facts” that
are erroneous as shown by clear and convincing
evidence. See Benge, 474 F.3d at 241. A
comprehensive review of the 800-plus pages of
transcript in the record, in addition to the rest of the
documents contained in the record, provides clear
and convincing evidence that the facts as found in
the Direct Appeal Opinion and _ Post-conviction
Hearing Findings (and, therefore, the Post-conviction
Appeal Opinion) are inaccurate in numerous places.
Accordingly, the Court will cite to the trial (“Trial
Tr.”) and post-conviction hearing (“Hr’g Tr.”)
transcripts to support its conclusion that certain
factual findings by the state courts are clearly
erroneous.
The facts of the underlying case are as follows.
A. The Alleged Attack
On July 23, 2000, nine-year-old Ashlee Loomis
(“Ashlee’’ or “Ashlee Loomis’) and her father, Steve
Loomis (“Steve” or “Steve Loomis”), went to Don
Shaffer’s (“Don Shaffer” or “Shaffer’) house to join
friends in eating a late dinner. (ECF No. 31, Ex. 10,
Direct Appeal Opinion, at 618.) By the time Ashlee
and Steve Loomis” arrived at Don _ Shaffer’s
condominium, however, it was late and Shaffer and
Becky had retired for the night. (dd. at 619.)
Vasquez, his wife Karra!®, and their two young
% Ashlee Loomis should not be confused with Ashley Snyder (a
friend of Ashlee Loomis, and a witness for Vasquez) or with
Ashley Vasquez (the Vasquezes’ daughter).
10 Karra Vasquez is ene of Kitchen’s five daughters, several of
whom are referenced to some degree in the record; twins Becky
Shaffer and Christy Maciaszek, Karra Vasquez, Sarah, and
75a
daughters Ashley and Renee!! had just moved in to
Don Shaffer's basement earlier that day. (KCF No.
31 Appendix to Answer/Return of Writ, Ex. 38, Hr’g
Tr. at 243:12-13; 306:24—-307:10.) At some point after
Ashlee ate her fast food, she descended the 10-12
stairs to the basement of Don Shaffer’s condo at least
once. (Hrg Tr. at 306:11-14.) Karra Vasquez and
Steve Loomis were upstairs, just at the screen door
that is situated at the top of the stairs that lead into
the basement. (Hr’g Tr. at 305:9.) Vasquez,
meanwhile, was in the basement with the two
Vasquez girls, and, for a period of about five minutes,
with Ashlee. (Hrg Tr. at 302:22-25.) Approximately
15-20 minutes after Ashlee and her father arrived at
Non Shaffer's, Steve Loomis called to her from the
top of the stairs that it was time to go home. (Hr’g
Tr. at 306:11-21.) At that point, Ashlee came up the
stairs, and she and her father left for home. (/d.)
B. Reporting the Attack
On July 24, 2000, Ashlee and her older sister
Kaylee left Cleveland to spend a week with their
grandparents in Rochester, New York. (ECF No. 31,
Kx. 10, Direct Appeal Opinion, at 619-20.) The girls
returned home approximately a week later, or
slightly longer. (ECF No. 31, Ex. 11, Motion for
Leave to File New Trial Motion Instanter, Ex. 11,
Trial Tr. at 127:23-128:5.) After the girls’ return,
Steve Loomis took them on August 4, 2000 to Don
Shaffer's condo, where Kaylee babysat Ashlee,
Shaffer and Becky’s infant son Aaron, and the two
Vasquez girls. (Trial Tr. at 205:3-10.) Later that
Katie. (The record does not reveal Sarah’s or Katie’s last
names.)
'l Ashley Vasquez was approximately two years old at the time
of the alleged attack, while Renee Vasquez was an infant.
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day, Vasquez and Don Shaffer — who worked
together at a restaurant in the Flats — arrived home
from work together. (Trial Tr. at 204:18-24.) Shortly
thereafter Ashlee told Shaffer that she needed to talk
to him. (Direct Appeal Opinion, at 620.) She then
proceeded to tell Shaffer that Vasquez had sexually
assaulted her by “licking her private spot.” (Trial Tr.
at 206:19-20.)
Hearing Ashlee’s accusation, Don Shaffer
conveyed the information to Steve Loomis, who was
his best friend. (Direct Appeal Opinion, at 618.)
Steve Loomis, in turn, called his partner, Officer Tim
Zbikowski, who quickly arrived at the condo. (Trial
Tr. at 1384:2-4; 1384:22-135:9.) At that point, Steve
Loomis and Zbikowski talked about the allegations
with Ashlee. (Ud. at 135:12.) Thereafter 911 was
called, and numerous police and emergency
personnel arrived. (Trial Tr. at 209:12-24.) Ashlee
and Steve Loomis, accompanied by Becky Shaffer
and her infant son Aaron, went by ambulance to
Metro Hospital, where a_ physical exam was
performed and Ashlee recounted her allegations.
(Hr’g Tr. at 253:14-25, 257:17-25; Trial Tr. at 141:8-
14.) No DNA evidence was found during the
examination or during the subsequent investigation.
cs. The Prosecution and Trial
1. Pre-Trial
On August 16, 2000 Vasquez was indicted, and
he was arraigned on August 21, 2000. (ECF No. 31-
40, Ix. 26, Notice of Appeal, Cuyahoga App. No.
82156, Trial Docket (the “TI'rial Docket”).)
Prosecutors charged Vasquez with one count of rape
of a child under the age of thirteen in violation of
Ohio Revised Code (“ORC”) § 2907.02, and one count
of kidnapping in violation of ORC § 2905.01, with a
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sexual motivation specification. (Direct Appeal
Opinion, at 618.)
Vasquez remained in custody from the time he
was arrested. (See generally, Trial Docket.) At the
August 21, 2000 arraignment, the trial court
declared Vasquez indigent and appointed Attorney
Pat D’Angelo as Vasquez’s counsel. (d.) Vasquez
entered a plea of “Not Guilty” at the arraignment.
(ld.) D’Angelo moved to withdraw from the case on
September 14, 2000, which the court granted. (/d.)
The court then appointed attorney Don Butler to
represent Vasquez on the same day. (/d.) Butler
appeared at the first scheduled pretrial, on
September 21, 2000, at which he requested a
continuance. (/d.) The court continued the matter
until October 12, 2000, at which point Vasquez made
his first appearance in court since he entered his
“Not Guilty” plea on August 21, 2000. (Ud.) An
additional pretrial was held on October 19, 2000, at
which Vasquez appeared in court as well. Ud.) The
case proceeded to trial, which commenced on October
30, 2000, before Cuyahoga County Court of Common
Pleas Judge Frank D. Celebrezze, Jr. Cd.)
2. Trial
The prosecution’s case in chief rested entirely
on Ashlee Loomis’s testimony about the alleged
attack, supported by Steve Loomis’s testimony about
Ashlee’s demeanor in the time following the alleged
incident. The prosecution also presented a few other
witnesses, including Don Shaffer, Officer Teresa
Vega, Sally McHugh (“McHugh”!?), and Detective
'2 After marrying in the period between trial and the post-
conviction hearing, Sally’s last name was changed from
Weindorf — her surname during the pretrial investigation and
trial —-to McHugh. For purposes of consistency, the Court will
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James Chappelle. These witnesses’ generally
testified about what Ashlee had told them about the
alleged incident, or what they had learned in the
course of investigating the case. Prosecutors
presented no DNA or other physical evidence to
support the charges.
Butler’s cross-examination of Ashlee Loomis
was limited in scope and duration, and arguably
even more damaging than helpful to Vasquez’s
defense; at one point Butler asked Ashlee if she kept
a diary, to which Ashlee replied that she did. (Trial
Tr. at 98:8-10.) Ashlee had not mentioned the diary
in her direct examination, and the prosecutor had
not offered it as an exhibit. Butler then asked
whether Ashlee had written about the alleged
incident in her diary, to which Ashlee again
answered in the affirmative. (Ud. at 98:12-16.) He
pressed on to ask whether Ashlee had brought the
diary to court that day, and Ashlee answered no. (Ud.
at 98:17-18.) Butler then concluded his questioning
about Ashlee’s diary by asking if she still had it, to
which Ashlee answered yes. (Ud. at 98:20-21.) Butler
asked no other questions about the diary, nor did he
ever demand to see the diary after learning of its
existence.
After the prosecution rested, Butler did not
call a single defense witness, fact or character. He
did not move for a motion in limine regarding
supposed other allegations of sexual misconduct
against Vasquez — vague, unsubstantiated and
uninvestigated allegations that the prosecutor had
relayed to him, Hr’g Tr. at 139:10-24, — and Vasquez
did not testify. Having heard the prosecution’s case
refer to Sally McHugh throughout this Opinion, regardless of
the specific point in time being discussed.
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the ten-year-old!’ victim, no physical evidence, a
substantial delay in reporting the alleged incident,
combined with the improbable circumstances of
Vasquez assaulting Ashlee while other adults
(including a Cleveland Police Department officer and
Vasquez’s wife) were upstairs in a tiny home and two
other young children were in the same room — Butler
renewed his Criminal Rule 29 motion, and then
rested his defense at approximately 10:10 a.m. on
Thursday, November 2, 2000. (Trial Tr. 293:7-14.)
Closing arguments and the Charge of the
Court followed. (Trial Tr. at 2.) The jury was
excused to deliberate around lunch time. (See id. at
370:12-17). By the start of the “Il'hursday Afternoon
Session” on the same day, td. at 371:1, the jury
returned a guilty verdict on both counts. (d. at
371:21—373:15.) A sexual offender hearing and
sentencing followed on December 18, 2000. (Trial Tr.
at 389:6-8; ECE No. 31-4, Ix. 3, Judgment [ntry.)
1). Post-Conviction Hearing
During the May 14-17, 2002 post-conviction
hearing, Vasquez presented affidavits and
corresponding testimony from several individuals.
The critical testimony is as follows.
1. Don Butler’s Post-Conviction Hearing
Testimony
Butler testified and described his efforts
representing Vasquez. Butler testified that he was
assigned to the case on September 14, 2000. (Hr’g
Tr. at 89:4-8.) Butler testified that he was “pretty
sure” he talked with Vasquez in a_ holding cell
following a pretrial on September 14, 2000. (Hr’g Tr.
13 Ashlee was nine years old at the time of the alleged incident,
but ten years oid at the time of trial.
SOa
9():22-23). He had no notes in his case file, however,
to verify that he did, in fact, meet with Vasquez that
day.44 (Hrg Tr. 93:21-25; 94:1-12.) He further
testified that he met with Vasquez on at least three
occasions. First, Butler testified that he met with
Vasquez on October 12, 2000, in a holding cell after a
pretrial conference, for between 12 and 25 minutes.
(Hr’g Tr. 109:24-25—-110:1-12; 349:7-14.). Second,
Butler further testified that he met with his chent on
October 19, 2000, again in a holding cell after a
pretrial conference, for about the same duration.
(Hr’g Tr. 112:11-13; 3850:18-24.) Third, Butler
testified to meeting with Vasquez for another brief
meeting on October 29, 2000, the night before trial,
at Jail Number One. (fir’g Tr. 121:23-25-122:1-10;
352:20-25—353:1-5.)
Butler also testified that he did some amount
of pretrial preparation, such as legal research on
child rape cases, Hr’g ‘Tr. 103:4-15, filing standard
discovery requests, Hrg Tr. 100:6-16, and
conferencing informally with the initial prosecutor, !®
Hrg Tr. 92:18-19; 110:16-111:2. Butler further
testified that he requested that Vasquez sign a
speedy trial waiver on two occasions, the first during
the October 19, 2000 conference, and again during
the brief meeting on October 29, 2000.'§ Id. at
350:25-351:23. Notwithstanding Vasquez’s refusal
14 Indeed, the state court docket reveals that Vasquez did not
appear in court on September 14, 2000.
15 Attorney Kestra Smith was the prosecutor during the pre.
trial investigation. The docket reflects that Attorney Lynn
Travis prosecuted the case at trial. (KECK No. 31-5, Ex. 4
Notice of Appeal, docket.)
16 Butler testified that he did not discuss speedy trial issues
with Vasquez during the October 12, 2000 meeting. (Hr’g ‘T'r.
112:14-17.)
’
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to sign the speedy trial waiver, Butler testified that
he was prepared to try the case when the October 30,
2000 trial commenced.!” (Hr’g Tr. 125:9.) According
to Butler’s affidavit and supporting testimony, he
made a professional judgment that there were no
helpful witnesses for him to present at trial. (See
Hr ge Tr. 125:9-15.)
Related to his investigation of the case, Butler
testified that at some point Vasquez provided him
with the name and phone number for Kitchen,
Vasquez’s mother-in-law.'® According to Butler’s
testimony, Vasquez asked him to speak to Kitchen,
as Kitchen would be able to provide Butler with the
contact information for Karra Vasquez, from whom
Butler could learn additional information about the
case. (Hrg Tr. 116:1-2, 13-16.) Butler testified that
he subsequently telephoned Kitchen. (Hr’g Tr. at
116:19-20.) In Butler's version of the events as
recounted at the hearing, Kitchen emphatically told
him that no one from her family would help Butler
with Vasquez’s defense, and that the family would do
everything they could to make sure Vasquez stayed
1’ This testimony makes Vasquez’s refusal to sign a speedy trial
waiver irrelevant.
18 The record is unclear exactly how and when Butler received
Kitchen’s name and phone number. Vasquez did not explicitly
state in his post-conviction hearing testimony how or when he
conveyed the information to Butler, although he testified that
he gave Butler two ten-page handwritten letters containing
information for Butler to investigate further. (Hr’g Tr. 349.)
Butler similarly testified that Vasquez provided him with the
information, but it is unclear whether the information was
conveyed via the letters or orally. (See Hr’g Tr. 115-116.) To
further complicate matters, Butler testified that he received the
information “when I think [ went up in the jail,” Hr Tr.
116:13-16, but the uncontested facts are that Butler only visited
Vasquez at “the jail” on the night before trial, October 29, 2000.
82a
away from Karra. (Hr’g Tr. 116:19-24, 117:10-19.)
Butler conceded, however, that he did not make any
contemporaneous notes of the conversation. (Hr'g
Tr. at 119:21—120:2.)
Butler also conceded in his testimony that he
did not talk with Karra Vasquez, nor did he make
any attempts to contact Karra beyond his singular
telephone conversation with Kitchen. (Hr’g 'T'r.
118:8-119:2.) Butler denied that Karra Vasquez
called him. (/d.)
Additionally, Butler testified that although he
stated in his affidavit that it was his professional
judgment that Becky Shaffer would not be a helpful
witness, he did not actually talk with Becky, nor did
he make any attempt to contact her. (Hr’g Tr. 121:2
4, 15-17.) Furthermore, he testified that he did not
know about or speak with T'ammy Salopek or her
daughters, including Ashley Snyder. (/d. at 125:16
126:2.
Finally, Butler testified that he did not have
any documentary evidence to substantiate the vague
allegations of other child abuse charges to which the
prosecutor had referred in some meetings with
Butler. (Hrg Tr. at 139:10-24.) He also testified
that he had no notes of any of his conversations with
his chent or with either of the prosecutors. (See, e.g.,
Hr’g Tr. at 93:21-94:12; 123:22-124:3; 124:15-20;
109:16-23; 112:2-6.)
Subsequent witness testimony explicitly and
directly contradicted Butler’s testimony on a number
of critical points.
2. Karra Vasquez’s Post-Conviction Hearing
Testimony
Petite +e ewe ae OT oe
a. Testimony about the investigation
Karra Vasquez gave specific testimony about
numerous phone calls not only to Butler but to
Attorney D’Angelo as well, calls that went
unreturned, (Hrg Tr. at 321:1-18.) Karra
emphatically disputed Butler’s testimony that she
never contacted him, detailing her numerous
attempts to talk with him about the case. (See
generally, Hryg Tr. at 321-322.) Karra testified that
she made repeated phone calls to Butler’s office to
speak with him about Vasquez’s case, but “he was
never there.” /d. at 321:15-18. She testified that she
left her name, telephone number, and reason for
calling with Butler’s secretary, and was told that
Butler would call her back. /d. Butler, according to
Karra’s testimony, never returned her calls. /d. at
322:16-17.
Karra Vasquez further testified that she
attempted to help Vasquez initially, but that she did
not attend the trial or sentencing because she felt
threatened by social worker McHugh. (See Hr’g Tr.
at 835:12-20; 329:8-15; 318:4—820:19.) According to
Karra’s testimony, McHugh threatened to remove
Karra’s children on grounds of child negligence if
Karra persisted in believing that her husband was
innocent and in helping his defense. (Hr’g Tr. at
318:4—-3820:19.)
b, Testimony about the underlying
events
In addition to testifying about the
Investigation, Karra Vasquez also testified about
personal observations from the nights of July 23,
2000 and August 4, 2000. Her testimony stands in
contrast with that offered by witnesses at trial.
84a
lirst and most critically, Karra_ specifically
testified that she observed that Ashlee was wearing
a bathing suit on the night of July 23, 2000:
Question: As you reflect on what you observed
that night, did you notice anything about,
number one, her clothing?
Answer: She was wearing a swim suit
Question: Did the swim suit or any other
attire appear to be disheveled?
Answer: No.
(Hr’g Tr. at 306:1-5.) Conversely, Ashlee
testified at trial! and told others who then
recounted that same telling at trial — that Vasquez
“pulled down my pants and underwear’ before
allegedly licking her vagina. (Trial Tr. at 41:5-7,
42:3-4.) Furthermore, Ashlee testified that when her
father called from the top of the stairs to tell her it
was time to leave, she “pulled my underwear and
pants back up” and went back upstairs. (Ud. at 48:3
4.) Steve Loomis testified at trial that Ashlee had
told him that Vasquez “took her pants — her shorts
and her panties off’ and that when her father called
from the top of the stairs, Ashlee “pulled her clothes
on.” (Trial Tr. at 170:8-9, 16-17.)
second, and just as critically, Karra testified
that Ashlee
actually went down [to the basement] twice.
She went down the first time for just a few
minutes. Came back up. And then she went
down the second time, and I could hear that
they were changing Renee’s diaper, getting the
'Y Ashlee did not testify at the post-conviction hearing, nor did
her father Steve Loomis
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kids ready for bed. And then Steve said that it
was time to go and he yelled down the steps
and said Ashlee, it is time to go. She came
running up the steps, because her dad called
her, it was time to go, and they left.
(Hr’g Tr. 306:11-21.)
Karra Vasquezs testimony again explicitly
contradicts Ashlee’s account of the events that night;
Ashlee testified at trial that she went down to the
basement at Vasquez’s invitation, she crawled up on
the top bunk, he held her down and molested her,
and only let her go when her father called her from
the top of the stairs to say it was time to go. (See
generally Trial Tr. 88-48.). Steve Loomis’s testimony
does nothing to bolster either side, as he testified
that he did not actually observe Ashlee from the time
he left her to eat her fast food in the living room until
the time when he called to her from the top of the
steps, because he had gone outside to talk with
Karra Vasquez. (Trial Tr. 124:24—-125:11.)
Third, Karra Vasquez testified that she, her
husband, and their two daughters had just moved
into Don Shaffer’s basement on July 23, 2000, the
night the alleged incident occurred. (Hr'g Tr.
306:24--307:10.)
Karra Vasquez's testimony conflicts with the
version of events to which Ashlee previously
testified. Ashlee testified that she met Vasquez for
the first time at a family gathering at Kitchen’s
house. (Trial Tr. at 76:6-25.) Ashlee then testified
that the second time she met Vasquez was at Don
and Becky Shaffer’s place, and that Vasquez, Karra
Vasquez, and their two daughters had moved in to
the Shaffer residence at the time. (Trial Tr. at
78:17-79:5.) According to Ashlee, nothing happened
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with Vasquez on that second occasion (which,
according to the otherwise-undisputed testimony,
was the day Vasquez and his family moved in):
Question: Now, when you saw them the second
time, which was at Don’s and Becky’s house, did
anything happen on that occasion?
Answer: That occasion, no.
Question: Beg your pardon?
Answer: No.
Question: All right. And did Rob speak to you?
Answer: No.
Question: He didn’t say hi?
Answer: He said hi.
Question: All right. Did you say hi?
Answer: Yes.
Question: All right. And did he ask you go
anyplace with him on that occasion?
Answer: No.
(Trial Tr. at 79:7-24.) This testimony contradicts the
testimony that the alleged attack happened on the
day that Vasquez and his family moved into Don
Shaffer's basement.
fourth, Karra_ testified that Vasquez took
their two young children down to the basement at
around the same time Don Shaffer and Becky went
upstairs to bed. (Hr g Tr. 302:17-22.) Thus, Karra
Vasquez testified, she was the only person upstairs
(i.e. in the kitchen/living room area) when Ashlee
and Steve Loomis arrived to eat. (See Trial Tr.
303:8-14.) She testified that Vasquez was already in
the basement with their children when the Loomises
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arrived. (See id.) According to Karra, Ashlee “was
up with us [i.e Karra and Steve} and we were
talking, and she said she wanted to see the kids, so
she ran down to the basement. She was down there
for maybe five minutes and came back up.” (/d. at
305:22-25.)
Conversely, Ashlee alternately testified that
“just Don [Shaffer]” was awake when she and her
father arrived at the condo to eat, Trial Tr. 33:5-7;
90:6-8; that she saw Vasquez when she arrived at
Don Shaffer’s, Trial Tr. 83:9-11, 25; 34:1-2; and that
when she arrived at the condo with her father,
“Karra was on the couch watching T.V. with
Robjert],” 92:18-25.2° Ashlee also testified that
Vasquez asked her to go down to the basement with
him when Karra Vasquez and Steve Loomis began
talking. (See Trial Tr. 36:12-15; 38:9-13.)
Karra Vasquez’s testimony similarly conflicts
with Steve Loomis’s testimony about that night; he
testified at trial that Vasquez was in the kitchen
“9 The direct appeal court found that “Shaffer and Becky had
retired for the night [by the time Ashlee and Steve Loomis
arrived at Don Shaffer’s condo].” (Direct Appeal Opinion, at
619.) Of the six persons who were able to testify about the
night of July 23, 2000, adults Don Shaffer, Becky Shaffer,
Karra Vasquez, Robert Vasquez, and Steve Loomis all
confirmed whether in trial or post-conviction hearing testimony
that Don Shaffer and Becky Shaffer had gone to bed by the time
the Loomises arrived. Ashlee, on the other hand, gave
internally and externally inconsistent testimony about who she
observed upon arriving at Shaffer’s condo
The direct appeal court also found that “the victim and
her father proceeded to join [Vasquez, Karra, and their two
small children] in eating the fast food.” Ud.) There is nothing
in any of the testimony, however, that supports the appeals
court’s finding that both families sat and ate together.
88a
when Ashlee and Steve arrived, and that he “saw
Rob go down into the basement.” (Trial Tr. 124:1-2;
125:5.)
Fifth, Karra Vasquez testified that she heard
conversation between Ashlee and Steve Loomis on
the night Ashlee reported the alleged attack. Karra
Vasquez testified that she was standing inside the
screen door, while Ashlee and Steve were “standing
right on the stoop” outside the door. (Hr’g Tr. 110:1-
4.) According to Karra Vasquez, Steve Loomis asked
Ashlee specific questions while she was recounting
the alleged attack, such as when and how the
incident happened, and how long did it take. (Hr’g
Tr. 3816:5-11,) Ashlee’s initial response, Karra
Vasquez testified, was that the incident took four
episodes of Rugrats, which was two hours, to which
Steve Loomis responded “that’s too long. It couldn’t
have been two hours. You need to really think about
this.” (Hr’g Tr. 315:12-16.) Karra Vasquez further
testified that Steve and his partner [Officer
Zbikowski, who was not officially on duty at the
time] were telling Ashlee that “you have to get this
right. You have to make sure that you know exactly
what you are going to say and repeat this to every
person that asks you. You can’t change your mind.”
(Hr’g Tr. 315:21—-316:1.)
Sixth, Karra Vasquez testified that while she
was at the front screen door listening to Ashlee talk
with her father and Officer Zbikowski, Ashlee “kept
responding as — well, does this mean I get to be on
TV? If] tell them this do I get to be on TV. And she
was laughing, giggling.” (Hr’g Tr. 316:2-4.)
3. Becky Shaffer’s Post-Conviction Hearing
Testimony
89a
Like Karra Vasquez, Becky Shaffer was
present on the night of the alleged incident, although
she was asleep at the time. She was also present for
many of the events that occurred on the night of
August 4, 2000. Yet Becky, like Karra Vasquez, was
not called as a witness at the trial.2!_ The critical
portions of her testimony are as follows.
a. Testimony about the investigation
Becky Shaffer testified that Butler never
talked with her to see what she might have to say.
(Hr’g Tr. 262:21-22: 288:25-289:5.) She also testified
that she received a subpoena from the prosecution to
testify at trial, that she was in the courthouse all
three days of the trial, and that she did not end up
testifying at the trial.22 (Hr’g Tr. at 262:23—265:7.)
b. Testimony about the underlying
events
First, Becky Shaffer testified that she and her
infant son Aaron rode with Ashlee and Steve Loomis
in the ambulance on August 4, 2000. (Hr’g Tr.
253:14-25.) According to Becky’s testimony, Ashlee
appeared excited by the attention she was receiving
during the ride to the hospital. (Ud. at 255:8-12.
Moreover, Becky specifically testified that “Ashlee
asked if she was going to be on TV” while she was
being attended in the back of the ambulance. (d. at
“1 Becky Shaffer was subpoenaed to testify as a prosecution
witness, as her husband Don did.
4 Becky Shaffer also testified that the prosecutor told her to
leave the courthouse on the third day of trial, after learning
that Becky might have potentially damaging information about
Steve Loomis, because prosecutors “said they didn’t want Don
Butler to see me.” (Hr’g Tr. at 264:17-21.) This testimony, if
true, might well demonstrate suppression of a witness by the
prosecution, which the Court finds unsettling to say the least.
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255:22. See also, 256:7-8.) Becky testified that she
found this statement “odd because Ashlee craved
attention. And that is why - - and that’s why some of
this didn’t sit well with some of the things that went
on.” (Hr’g Tr. at 266:3-11.) Becky was not
questioned about the statement on _— cross-
examination. This testimony echoes’ Karra
Vasquez’s testimony that Ashlee made the same
statements about getting on TV while talking with
her father and standing outside the door at the
condo.
Second, Becky Shaffer testified that Vasquez,
Karra Vasquez and their children had just moved
into Don Shaffer’s basement on July 23, 2000. (Hr’g
Tr. 243:12-13.) This testimony reconfirms Karra
Vasquezs testimony, and similarly conflicts with
Ashlee’s trial testimony that nothing happened on
the day the Vasquez family moved into Don Shaffer’s
basement.
Third, Becky Shaffer testified that on the
night of July 23, 2000 she and Don had gone upstairs
to bed before Ashlee and Steve Loomis arrived at the
condo. (Hrg Tr. at 246:10-16.) She further testified
that she was at work on the night of August 4, 2000
and came home in response to a phone call. (Hr’g Tr.
at 249:1-20.)
This contradicts Ashlee’s testimony that on
the night of the alleged attack (July 23, 2000), Becky
was at work and that Becky came home when Ashlee
was in the ambulance. During direct examination
about what happened on the night of July 23, 2000,
Ashlee testified as follows:
Question: Where was Becky?
Answer: Becky was at work.
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Question: She was at work?
Answer: Yeah.
Question: Okay. She wasn’t in bed?
Answer. No.
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: Question: And you say Becky was at work?
Answer: Yes.
Question: How do you know Becky was at
work?
PRM es I BLE At
Pe renee
: Answer: Because when I was in the ambulance
i she came home, so that’s how I know.
Question: She came home from work?
Answer: Yes.
Question: Well, wait a minute. I’m not talking
about the time - - ’'m not talking about when
you told Uncle Don [Shaffer] what happened.
’'m talking about when you went there and
you had Burger Kings |sic].
Answer: | know.
Question: All night. I’m talking about when
you say Rob touched your private part, where
was Becky on that day?
Answer: At work.
Question: July 23rd?
Answer: At work.
(See Trial Tr. at 91:9—92:2.)
Fourth, Becky Shaffer testified that she took
her son Aaron to the hospital on the night of August
4, 2000, because Steve Loomis and “the other police
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92a
officer” [Zbikowski] told her to do so, Hr’g Tr. 272:8-
16, not because she suspected or was concerned that
Vasquez had sexually abused Aaron. (See Hr’g ‘Tr.
271:24—272:16; 273:1—274:15.)23
Fifth, Becky Shaffer testified that she had
talked to the prosecutor about her concern regarding
a conversation between Becky and Sally McHugh,
during which conversation McHugh told Becky that
she [McHugh] might be taking Karra Vasquez’s
children away. (Hr’g Tr. 293:8-11.)
4. Joanne Kitchen’s Post-Conviction Hearing
Testimony
Joanne Kitchen also testified at the post-
conviction hearing. Although she was not present in
the Shaffer home on either July 23, 2000 or August
4, 2000, she testified about her conversation with
Don Butler. She was also present when social
worker McHugh interviewed Karra Vasquez, and her
testimony shed additional light on why Karra
Vasquez did not play a more active role in Vasquez’s
defense. Additionally, Kitchen testified about her
personal observations of Ashlee’s desire for attention.
Her critical testimony 1s as follows.
23 Curiously, the court at the post-conviction hearing found that
Becky Shaffer “admitted that she reported to the hospital that
she had come in with Ashlee Loomis, who reported that she was
raped by Robert Vasquez, who lived in Shaffer’s home and that
she wanted to see if her son had also been abused.” (Post—
conviction Hearing Findings, at 16.) A closer analysis of
Becky’s testimony, however, makes this finding a significant
stretch, if not an outright mischaracterization. This is
especially so when considering the convoluted cross-
examination questioning involving multi-part questions that
elicited a “yes” and Becky’s repeated testimony that she only
took her son in the ambulance because Steve Loomis and
another police officer directed her to do so.
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a. Testimony about the investigation
First, Kitchen did not contest Butler’s
testimony that he telephoned Kitchen. (See Hr’g Tr.
116:19-20; 203:10-13.) Kitchen’s testimony, however,
hotly disputed the substance of that conversation as
Butler recounted in his testimony. Kitchen testified
that she only told Butler that she was not present on
the night of the alleged attack and didn’t know what
went on that night. (Hrg Tr. 204:19-23.)
Kitchen also testified to the following: (1) that
she never told Butler that none of her family would
help him defend Vasquez (Hr’g Tr. 204:24-25—205:1-
10.); (2) that she never told Butler that she and her
family would do everything they could to make sure
Vasquez stayed in jail (Id. at 205:11-14.); and (3) that
she never told Butler that she and her family would
not cooperate in defending Vasquez Ud. at 205:15
18.). According to Kitchen, the telephone call lasted
only two to three minutes. (Ud. at 205:19-21.)
Kitchen also testified that Butler never contacted her
again. (/d. at 206:1-3.)
Second, Kitchen’ testified that McHugh
indicated that the Department of Human Services
would take action against Karra Vasquez regarding
her children if Karra cooperated with Vasquez’s
defense. (Hrg Tr. 202:2-6, 12-18.) According to
Kitchen, McHugh stated that she would investigate
if Karra Vasquez could keep the children, if Karra
Vasquez was a fit mother, and that there was a
possibility of putting Karra Vasquez’s children in
foster care. (/d. at 203:1-4.) While Kitchen declined
on a few occasions to use the word “threatened” to
describe McHugh’s statements to Karra Vasquez
about the children, the following exchange occurred
during cross-examination:
YAa
Question: [Y]our testimony this morning was
that you didn’t think that the social worker
threatened Karra, is that correct? Is that
what you said this morning?
Answer: I said | didn’t lke the word
threatened.
Question: So you didn’t think that the social
worker said anything that was threatening or
that she made no threat?
Answer: Well, she did.
Question: Well, she did or she didn’t?
Answer: She did. Well, not - -
Question: Is it a threat or wasn’t it?
Answer: I don’t like you using the term
threatened. I mean, that’s a strong word.
The Court: Let me ask a question: You were
present during the conversation between Ms.
[McHugh] and your daughter?
Answer: Yes.
The Court: Putting yourself in your daughter’s
[Karra’s] shoes, would you have felt
threatened by [McHugh’s] statement?”
Answer: Yes.
The Court: Okay. Thank you.
(Hr’g ‘I'r. 213:16-214:16).
b. Testimony about observations of
Ashlee Loomis
Kitchen testified that Steve Loomis dated her
daughter Christy for “a couple years.” (Hr’g Tr.
208:4-6.) Accordingly, Kitchen testified, she
Q5a
observed Ashlee on several occasions and interacted
with the girl at various “family functions” to the
point where Ashlee called Kitchen “Grandma.” (Hr’g
Tr. 193:11-23; 208:7-10.) Kitchen testified, based on
her observations, that Ashlee was starved for
attention without a mother in the home, and that
“whatever was going on [Ashlee] had to ... do one
step better, or whatever the story was or whatever
was going on, it had to be worse ... that kind of
thing.” (Ud. at 195:21-24.)
5. Tammy Salopek’s Post-Conviction Hearing
Testimony
Tammy Salopek testified on Vasquez’s behalf.
Importantly, Salopek provided compelling testimony
about Ashlee’s character for truthfulness. Her
testimony also directly contradicted Steve Loomis’s
testimony in some critical aspects.
Salopek testified thet she was good friends
with Becky Shaffer, and that Salopek, Becky and
Don Shaffer, and Steve Loomis were all part of a
yroup that frequently socialized together. (Hrg Tr.
143:18-25.) Salopek testified that she had a close
relationship with Steve Loomis as a result of working
with him for several years. (Hrg Tr. at 1438:9-22.)
Salopek recounted that Steve Loomis’s children -
Ashlee and Kaylee — would play with her own
children of approximately the same age, Hr’g 'T'r. at
145:6-8; that Ashlee and Kaylee would stay over, and
sleep over, at her house “a lot,” td. at 144:13-145:5;
and that Ashlee was at Salopek’s house “on average
two, three times a week” during the summer of 2000,
id. at 144:13-17. Conversely, she testified that she
did not know Vasquez, that he was not a friend of
hers, and that she had never seen him before. (Hr’g
Tr. 155:17-23.)
96a
Salopek also testified that her own children
had been’ sexually molested by their — step-
grandfather, who was prosecuted but plea-bargained
because Salopek did not want her children to testify.
(Post-Conviction Hearing Findings, at 17 (citing Hr’g
Tr. at 151).)
a. Testimony about Ashlee Loomis’s
character for truthfulness
Tammy Salopek testified to her observations
of Ashlee Loomis’s charact
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