Opposition Brief — Smith v. Vasquez

No. 09-1328

IN THE

SUPREME COURT OF THE UNITED STATES

KEVIN SMITH, Warden,

PETITIONER,

ROBERT 5. VASQUEZ,

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE SIXTH CIRCUIT COURT OF APPEALS

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

FRIEDMAN & GILBERT

Gordon S. Friedman (0021946) *

* counsel of record

Andrea Whitaker (0074461)

1370 Ontario Street, Suite 600

Cleveland, OH 44113-1752

(216) 241-1430

Counsel for Respondent

PARTIES TO THE PROCEEDING

he petition accurately lists the parties to the proceeding

TABLE OF CONTENTS

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Parties to the Proceeding . ee ieee SDE ONION ET een! icceceal

Table of Contents Lt ERO ER OTITIS NN IO EE EEE

LARD Resins saseadsmeencecada toate

Statement of the Case .... as oe SE SERIAL OER TL ar AC

Introduction .................. Ae aa ieiantesecsuede ciacabaanaaaeee

ner I I 2 aia th co ns ea dbnddasuseosaiatuabeiceteaea A ilosuanacaieaieers 13

A. The Sixth Circuit Decision Properly Applied Both AEDPA Standards and

this Court’s Precedents in Determining That the State Courts’ Rulings Were

Se ia aalls ac anh euinldsplansnsapinbanciasacoconmabenenl 13

3. The Sixth Circuit Decision Properly Applied Both AEDPA Standards and

this Court’s Precedents in Determining That Respondent Received Ineffective

ES EET OE TTT, 5 ae: 24

IN oS peat ieeeates ee ee ate A Ee

TABLE OF AUTHORITIES

Cases Cited

Brown v. Smith, 551 F.3d 424 (6% Cir. 2008)......................cccsccccsscsosscscecececcoscceeecs 30°31

Early v. Packer, 537 U.S. 3 (2002) oo... eeeeeeee eee. RA re Pree Rpt BN Ate ra om 14

Holland v. Jackson, 542 U.S. 649 (2004) ...... RT: Oe NR ECS MO aR RENEE 13, 16-21

Kimmelman vy. Morrison, 477 U.S. 365 (1986) 0.0....0..cccccccceecesscececeeseceeceseseseeeenceneeees 29

Lorraine v. Coyle, 291 F.3d 416 (6% Cir. 2002) ooo. ccc ccceececceeceeseeeeceeeeseceeens Pea Ee 29

Parrish Towns v. Smith, 395 F.3d 251, 259 (6% Cir. 2005) ...0..0.cccccceeeeeeeees ceeeeeeee BB

Pnsentta we Chesnais, GT TF) Go, BO I ovicsisscuesesscevscsnassecssenesesnaasosornnnassenvenpsoasses 14

Ramonez v. Berghuis, 490 F.3d 482 (6t Cir. 2007).......00.0000...... PR ART a ae 28

Strickland v. Washington, 466 U.S. 668 (1984)....3, 13-14, 16-19, 21-22, 25, 27-29, 38

Williams v. Taylor, 529 U.S. 362 (2001) ..............cccccscccsccscecescscsseccessseceseeccercese 17, 20-24

Woodford v. Visciotti, 537 U.S. 19 (2002) ........... SIS RO GAPE R RES 13, 16-21

Workman v. Tate, 957 F.2d 1339 (6% Cir. 1990) 0... cccceecececeeeeeeceeeeeeeee sitoacainsas ae

eee es MU OEE Oo. ccsasissesercdusuimanicdunonmbobc vopanencon soa vesmanii 14

Statutes Cited

Antiterrorism and Effective Death Penaity

Act of 1996 (“AEDPA”)....................-. RL eT RN eee San ONE Fe Oe 4-5, 13-14, 23-27

— § EE | SRA RGCe ec ee ae ae cee nee ea See Se

28 U.S.C. § 2254 (e)(1) oes pe neces SLE ae hols OEE ee 26

Re POINT CI NG aso ne soc cscessncsnscsxsnertincnosdetvenienotadsncce abediaiae seaiemaiin l

Ohio Revised Code § 2907.02 .........0.0....000..0000.

Ohio Revised Code § 2953.21 .......... ;

Rules of Court cited:

Rules of the Supreme Court of the United States, No. 10...........

Constitutional Provision cited:

Sixth Amendment to the United States Constitution. ....0...00..0......ccccceceeeeeeeeeeeeese 27, 29

STATEMENT OF THE CASE

There are aspects of Petitioner's Statement of the Case and facts that are

misleading as relates to the summarizing of the Sixth Circuit’s opinion and the

deference applied in reaching that opinion. These facts and omissions will be

addressed specifically in this opposition to certiorari.

Respondent Robert Vasquez was indicted on August 16, 2000 and convicted

in the Cuyahoga County Court of Common Pleas for (1) rape of a minor under the

age of thirteen (Ohio Revised Code (“O.R.C.“) § 2907.02); and (2) kidnapping with a

specification of sexual motivation (O.R.C. § 2905.01). His trial began on October 30,

2000. At trial, Defense Counsel offered no witnesses in Mr. Vasquez’s defense. The

trial concluded on November 3, 2000 with jury verdicts of guilty as to both counts of

the indictment. On December 22, 2000, Respondent was given concurrent sentences

of life as to Count One and nine years as to Count Two.

On October 9, 2001, Respondent filed a Post-Conviction Petition to Vacate or

Set Aside Judgment of Conviction pursuant to O.R.C. § 2953.21. Thereafter,

Respondent and Petitioner filed several memorandums and _ supplemental

memorandums.

On November 14, 2002, the day after the Ohio Court of Appeals ruled on his

direct appeal, the trial court denied Respondent’s motion for post-conviction relief

filed on October 9, 2001. The Ohio Eighth District Court of Appeals affirmed the

trial court on January 20, 2004. That decision was appealed to the Ohio Supreme

Court on March 4, 2004. The Ohio Supreme Court denied leave to appeal and

dismissed the appeal on June 9, 2004

Respondent filed a petition for writ of habeas corpus on June 29, 2005. That

Petition was granted on October 3, 2007. Pet. App. C-66a. Relying on different

grounds, the Sixth Circuit Court of Appeals upheld the District Court’s decision on

September 2, 2009. Pet. App. B-3a. A request for a rehearing was denied on

January 28, 2010. Pet. App. A-la. Petitioner filed a Petition for a Writ of Certiorari

to this Court and it is to this Petition that Respondent timely opposes.

I PI

INTRODUCTION

Question Presented No. 1: Does a state court act “contrary to...clearly

established Federal law” under 28 U.S.C. § 2254(d)(1) when it cites the

appropriate standard of review for a specific issue in its opinion but later

uses imprecise shorthand terms in referring to that standard?

Petitioner's first question presented does not offer a compelling reason for

this Court to grant certiorari. As stated in the Court’s rules, certiorari may be

granted when a court of appeals issues a decision in conflict with the decision of

another United States court of appeals on the same important matter or when a

court of appeals has decided an important federal question in a way that conflicts

with relevant decisions of this Court. Rules of the Supreme Court of the United

States, No. 10. While Petitioner attempts to frame the question as fitting in this

narrow class of cases, the facts and the Sixth Circuit’s ruling demonstrate that it is

not that type of case. The Sixth Circuit did not find that an imprecise shorthand is

unacceptable even though the proper standard was applied. Instead, the Sixth

C’ cuit determined that the state courts actually applied the incorrect standard. No

court of appeals, and certainly not this Court, has ever held that the standard for

ineffective assistance of counsel is anything but that which is articulated in

Strickland. The state courts did not apply that standard and no further review of

the Sixth Circuit's decision is warranted.

Question Presented No. 2: Did the Sixth Circuit err in granting the

habeas writ on Respondent's ineffective assistance of counsel claim

notwithstanding the state courts’ contrary determination?

Here, Petitioner falls even farther from the type of question this Court seeks

to review. Petitioner’s complaint is simply that the Sixth Circuit’s decision was

incorrect because it is contrary to the decision of the state courts. The position

advanced by Petitioner would make a federal court subservient to an incorrect

determination of federal law by a state court. After the proper deference afforded to

the state courts by the AEDPA, the Sixth Circuit determined that Respondent

received ineffective assistance of counsel and that he was entitled to a new trial.

This decision was made by correctly applying both Supreme Court and Sixth Circuit

precedence and no further review is warranted.

Sigs es A Gtig ll 54 Sete STIS

Hint as Gest ayaa yp are RNY AOA Ee Ses By:

STATEMENT OF FACTS

The facts are taken from the District Court’s Opinion. Pet. App C-74a-101a.

This is done for two reasons. First, contrary to Petitioner's suggestion, the District

Court did rely on facts contained in the state court proceedings and cited to those

proceedings frequently. Secondarily, the Distnct Court's review and synthesis of

facts from all state court proceedings provides a comprehensive overview of the

facts. Additionally, Respondent asserts that the District Court was correct in its

finding that: “[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 Postconviction Hearing Findings . . . are inaccurate in numerous places.” Pet.

App C-74a. The District Court acknowledged the deference due under the AEDPA

but determined that the “clear and convincing” evidence relieved him of that

obligation. Id. The District Court’s thorough discussion of the testimony, complete

with citations to the record, was accurate and permissible based on the factual

errors of the state courts.

A. The Alleged Attack

On July 23, 2000, A.L. and her father, S.L., a police officer with the City of

Cleveland Police Department, went to their friends’, Don and Becky Shaffer, home

after the day together to get something to eat. However, when they arrived, it was

late and Shaffer and Becky had retired for the night. Pet. App C-74a. Vasquez, his

wife Karra, and their two daughters lived in the Shaffer's basement as of that day.

Pet. App C-75a. After eating, A.L. went down the 10-12 stairs to the basement. Id.

Karra Vasquez and S.L. sat just outside by the screen door at the top of the stairs

that lead into the basement. Id. A.L. remained in the basement with Respondent

Vasquez and his daughters for about five minutes. Id. After A.L. and her dad had

been at the Shaffer's house for a short time, S.L. called to his daughter from the top

of the stairs to go home. Id.

B. Reporting the Attack

On August 4, 2000 A.L. and S.L. were again at the Shaffer’s condo. Id. While

there, A.L. told Don Shaffer that Vasquez had sexually assaulted her by “licking her

private spot.” Id. at 76a. Don Shaffer, S.L.’s best friend, told S.L. who then called

his partner, Officer Tim Zbikowski. Id. The two talked about the allegations with

A.L. Id. They called 911 and police and emergency personnel arrived. Id. A.L., S.L.,

Becky Shaffer and her infant son Aaron were taken to the hospital. No DNA

evidence was found during the examination or during the subsequent investigation.

C. The Prosecution and Trial

1. Pre-Trial

Respondent Vasquez remained in custody from the time he was arrested. Id.

at 77a. After his first appointed attorney withdrew due to a conflict, Vasquez’s final]

trial counsel was appointed. He appeared at the first scheduled pretrial, on

September 21, 2000, at which time he requested a continuance. Id. The court

PA OE Sit0 LE REE SRN PRT FB Le

continued the matter until October 12, 2000, for another pretrial. An additional

pretrial was held on October 19, 2000. Trial counsel met with Respondent Vasquez

on the last two pretrials for approximately 30 minutes total and again on the night

before trial!. The case was tried on October 30, 2000. Id

2. Trial

The case relied entirely on A.L.’s testimony about the attack and her father’s

testimony about her behavior. Other witnesses, including Don Shaffer, testified

about what A.L. told them or what they learned while investigating the case. There

was no D.N.A. or other physical evidence presented. Id. at 77-78a.

Trial counsel's cross-examination of A.L. “was limited in scope and duration,

and arguably even more damaging than helpful to Vasquez's defense; at one point

[he] asked [A.L.] if she kept a diary, to which [she] replied that she did. [A.L.] had

not mentioned the diary in her direct examination, and the prosecutor had not

offered it as an exhibit. [He] then asked whether [A.L.] had written about the

alleged incident in her diary, to which [A.L.] again answered in the affirmative. He

pressed on to ask whether [A.L.] had brought the diary to court that day, and A.L.

answered no. [He] then concluded his questioning about [A.L.’s] diary by asking if

she still had it, to which [A.L.] answered yes. [He] asked no other questions about

' Trial counsel admitted that he took no notes of any of his meetings nor did he have two 10

page letters Respondent wrote to him. Pet. App. C-82a. He attempted to justify his failure to take

notes or preserve copies of the letters by claiming that he had a good memory. (“So it is your practice

that you don't take notes of your interviews with the client? No. I don't have to. Right. Because you

have a pretty good memory? Right... I don’t take notes. I just listen.”) Post-Conviction Hearing Tr.,

pp.93-94, 103. This was disingenuous as his testimony, and loss of memory, in the Post-Conviction

Hearing clearly demonstrates. Post-Conviction Hearing Tr., pp. 55, 90°91, 126, 128-130, 135-136,

348, 353; Original Trial Docket.

the diary, nor did he ever demand to see the diary after learning of its existence.”

Id. at 78a

Trial counsel] did not call a single witness. The case against Respondent was

the then “ten-year-old victim, no physical evidence, a substantial delay in reporting

the alleged incident, combined with the improbable circumstances of Vasquez

assaulting [A.L.] 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.” Id. at 79a. Respondent was convicted and

sentenced to life in prison

D. Post-Conviction Hearing

On May 14-17, 2002, a post-conviction hearing was held

1. Post-Conviction Hearing Testimony

[Trial counsel] testified that he was “pretty sure” he talked with Vasquez in a

holding cell following a pretrial on September 14, 2000, though there was no

pretrial that day according to the docket. He had no notes to verify this. He

claimed he met with Respondent three times after two pretrials and on the night

before trial. According to him, the first two meetings were a total of 30 minutes

long. He also testified that his pretrial preparations included legal research on

child rape cases, filing standard discovery requests, and having an informal meeting

with the initial prosecutor. He also testified that he asked Respondent to sign a

speedy trial waiver twice. Respondent declined to sign it and [trial counsel]

testified he was prepared to go to trial. Id. at 79-80a

He also claimed that there were no helpful witnesses. He spoke to Joanne

Kitchen*, Respondent’s mother-in-law, at Respondent's behest. Respondent gave

him her name and phone number. Respondent told him that she could help him

contact his wife. [Tria! counsel] claimed that Kitchen told him no one would help

There were no notes to corroborate this conversation. Id. at 8la. After that, he

made no attempt to talk with Respondent’s wife Karra Vasquez. He also claimed

that he assumed that Becky Shaffer would not be a helpful witness. Id. at 82a

2. Karra Vasquez's Post-Conviction Hearing Testimony

Karra Vasquez emphatically detailed numerous attempts to contact her

husband’s first counsel as well as trial counsel. Those calls were never returned

She testified that she did not attend the trial or sentencing because she felt

threatened by the social worker because she had been threatened with the removal

of her children if she helped him. Id. at 83a

Karra testified that she observed A.L. wearing a bathing suit on the night of

the alleged attack. This contradicts A.L.'s testimony that Vasquez “pulled down my

2 The record is unclear exactly how and when trial counsel 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, although he testified that he gave his lawyer two ten-page handwritten

letters containing information for trial counsel to investigate further. Trial counsel similarly

testified that Respondent provided him with the information, but it is unclear whether the

information was conveyed via the letters or orally. To further complicate matters, trial counsel

testified that he received the information “when | think I went up in the jail,” (Id. at 81a, n. 18) but

the uncontested facts are that he only visited Vasquez at “the jail” on the night before trial, October

29, 2000

10

pants and underwear’ and that she “pulled my underwear and pants back up.” S.L

testified at trial that A.L. told him that Vasquez “took her pants -- her shorts and

her panties off’ and that A.L. “pulled her clothes on.” Second, Karra testified that

A.L. went to the basement two times. The first time was for just a few minutes and

during the second time, Karra could hear them changing her daughter's diaper and

getting the kids ready for bed. Then, A.L. left when her father called her. Id. at 83

85a

Karra testified that her husband was in the basement with her children

when A.L. and her father arrived and the Shaffers were in bed A.L. had

alternately testified that “just Don [Shaffer]” was awake when she and her father

arrived at the condo, that she saw Respondent when she arrived because he was on

the couch watching T.V. with his wife and that he asked her to go down to the

basement with him. Id. at 86°87a

Karra Vasquez also testified that she heard S.L. coaching A.L. and asking

her specific questions while she was recounting the alleged attack, such as when

and how the incident happened, and how long did it take. A.L. initially responded

that the incident took two hours. §.L. replied that was too long and “you have to get

this mght. 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.” Karra

also heard A.L. asking “does this mean I get to be on TV? If I tell them this do | get

to be on TV” and laughing and giggling. Id. at 88a

1]

3. Becky Shaffer's Post-Conviction Hearing Testimony

Recky Shaffer 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

the prosecutor told her to leave the courthouse because they did not want

Respondent's counsel to see her. Id. at 89a

She testified that during the nde to the hospital, A.L. appeared excited by the

attention she was receiving and asked if she was going to be on T'V.” Becky Shaffer

also testified that on the night of July 23, 2000, she and her husband were in bed

when A.L. and her father arrived. Becky Shaffer also testified that she took her son

to the hospital with A.L. and her father because A.L.’s father and his partner told

her to, not because she was concerned about Respondent. Finally, she verified that

the social worker threatened to take Karra’s children if she continued to try to help

her husband. Id. at 89°92a

4. Joanne Kitchen's Post-Conviction Hearing Testimony

Joanne Kitchen testified that she only told trial counsel that she could not

help because she was not there. She denied saying that no one would help

Respondent. But Ms. Kitchen was present when Karra was threatened by the

social worker and Ms. Kitchen testified about her personal observations of A.L.'s

attention seeking behavior. Id. at 92-95a

12

5. Tammy Salopek and her daughter’s Post-Conviction Hearing Testimony

Tammy Salopek also testified at the post-conviction hearing. Salopek was

friends with the Shaifers and A.L. and her father. Salopek testified that A.L. and

her sister would spend the night frequently. She did not know Respondent at all

Importantly, Salopek testified that her children were sexually molested and her

daughter testified that she told A.L. about the details of the incident. Both Ms

Salopek and her daughter testified that A.L. is constantly seeking attention, is a

“drama queen,” and would overexaggerate. They both also testified that A.L. lied

Salopek stated: I wouldn't take anything that A.L. would come and tell me on A.L.'s

word. Id. at 95-99a

Salopek also testified about A.L.'s behavior in the days following her report of

the alleged sexual abuse. Although she testified that A.L. stayed with her for four

days after reporting, Salopek stated that A.L. had no trouble sleeping or eating and

acted completely normally. This contradicts A.L.’s father’s testimony at tral that

his daughter was emotional and upset after telling him what happened. Id. at 97-

98a

6. Vasquez's Post-Conviction Hearing Testimony

Respondent testified that he only met with his trial counsel on three

occasions for a total of 45 minutes. His testimony about the incident was that he

F

was in the basement when A.L. arrived, that she came downstairs for 5 minutes

and then left. Id. at 100-10la

REASONS FOR DENYING THE WRIT

The Sixth Circuit Decision Properly Applied Both AEDPA Standards and this

Court’s Precedents in Determining That the State Courts’ Rulings Were

Contrary to Federal Law.

Petitioner argues that the Sixth Circuit failed to apply the proper

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) deference to the

state court opinions. Alleging the Sixth Circuit ignored this Court’s holding in

Woodford v. Visciotti, 537 U.S. 19 (2002) and Holland v. Jackson, 542 U.S. 649

(2004), Petitioner asks whether referencing the Strickland standard for ineffective

assistance of counsel using “imprecise shorthand” results in a decision that is

“contrary to” federal law. This demonstrates a clear misstatement and

misunderstanding of the legal underpinnings of the Sixth Circuit’s opinion in the

instant case. It was not the misstatement of the legal standard that led to de novo

review. It was the clear application of the incorrect standard that guided the Sixth

Circuit's conclusion that the state court opinions were contrary to federal law.

The Sixth Circuit’s opinion, written by Circuit Judge Boggs, held that the

state courts increased the burden of persuasion necessary to sustain an ineffective

assistance of counsel claim pursuant to Strickland. Pet. App B-4a. The Court

correctly noted that Strickland requires a petitioner to demonstrate that there is a

“reasonable probability” of a different outcome but for the inadequacy of his counsel.

Id. at 10 (citing Strickland, 466 U.S. at 694). The majority noted, however, that the

Ohio trial court and the Ohio appellate court elevated this already difficult burden

14

by applying the standard of whether the trial outcome “would have been different”

but for the mistakes of counsel. Id. at 15a

Deference is not required when the state court decision is “contrary to”

federal law

The maxim that federal courts should ‘give great weight to the

considered conclusions of a coequal state judiciary’ . . . does not mean

that we have held in the past that federal courts must presume the

correctness of a state court’s legal conclusions on habeas, or that a

state court’s incorrect legal determination has ever been allowed to

stand because it was reasonable. We have always held that federal

courts, even on habeas, have an independent obligation to say what the

law 1s

Wright _v. West, 505 U.S. 277, 305 (1992) (opinion concurring in

judgment). See also, Panetti v. Quarterman, 551 U.S. 930, 954 (2007)

(When a state court’s adjudication of a claim is “dependent on an

antecedent unreasonable application of federal law, the requirement

set forth in § 2254(d)(1) is satisfied. A federal court must then resolve

the claim without the deference AEDPA otherwise requires.); Early v.

Packer, 537 U.S. 3, 8 (2002) (indicating that § 2254 does not preclude

relief if either “the reasoning [or] the result of the state-court decision

contradicts [our cases}”).

The Sixth Circuit did not simply find a fleeting shorthand reference to an

incorrect standard. Instead, the Sixth Circuit explicitly noted that “[t]his was not a

slip of the pen during a rote repetition of a rule corrected upon application of law to

fact.” Pet. App B-15a. The Court found that, although the trial court correctly cited

Strickland, when discussing its second prong, the trial court (and subsequently the

appellate 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.” Id. (emphasis in original). The Sixth Circuit went on to

note that the trial court repeated itself, “explaining that ‘[i]n order to demonstrate a

15

claim of trial! counsel's ineffectiveness according to the United States Supreme

Court, a postconviction petitioner is required to demonstrate that (1) the

performance of defense counsel was seriously flawed . . . and (2) the result of

petitioncr’s trial or legal proceeding would have been different had defense counsel

provided proper representation.” Id. at 15a (emphasis added). The state court

again and agvin relied on its incorrect version of the second prong of the

ineffectiveness standard: “perhaps most importantly, not one of the witnesses who

testified [at the post conviction hearing] . . . offered any testimony that could have

changed the outcome of defendant's trial”... “even if the Court found that Butler's

question demonstrated a deficiency . . . 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.” Id. It was upon the state

court's application, not a simple misstatement, of the incorrect standard that the

Sixth Circuit determined that the state court decision was contrary to well

established Supreme Court precedence.

Circuit Judge Boggs painstakingly explains that it is the changing of, not

merely the shorthand reference to, the standard that is the basis of the Court’s

opinion that both state courts applied the wrong standard:

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 its decision against relief:

"perhaps most importantly, not one of the witnesses who testified [at

the post conviction hearing] . . . offered any testimony that could have

changed the outcome of defendant'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 deficiency . . . defendant

16

has shown no resulting prejudice. As demonstrated above, neither the

testimony of Mrs. Vasquez or Becky Shaffer would not [sid have

changed the outcome of the trial."

The Ohio Court of Appeals, reviewing for abuse of discretion, repeated

the error. It framed its 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.

Pet. App B-15-17a.

It is only through the twisting of the opinion below that Petitioner can claim

that the question before this Court is whether a federal court should uphold a state

court decision when it initially cites the correct standard and later uses “shorthand

in referring to it, even if the shorthand is imprecise.” Petition at 11. This statement

completely trivializes and virtually ignores the foundation of the Sixth Circuit’s

opinion. In fact, the Sixth Circuit specifically noted that when a situation exists as

Petitioner claims is here, this Court has found the state court decision not contrary

to clearly established federal law. Pet. App B-18a. The Sixth Circuit’s opinion

expressly cited Holland v. Jackson, 542 U.S. 649, 654-55 (2004) for its holding that

the “use of the unadorned word ‘probably’ is permissible shorthand when the

complete Strickland standard is elsewhere recited.” It also cited Woodford v.

Visciotti, 537 U.S. 19, 23 (2002) for the proposition that an innocuous shorthand is

permissibility when describing the Strickland standard. Pet. App B-18-19a.

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ep ete ee ae See es tees ne a ese Oe

RES

17

Petitioner primarily rests its request for certiorari on the assertion that this

case is remarkably similar to Jackson and Visciotti. While Petitioner correctly

states that the cases stand for the proposition that using an ephemeral shorthand

reference to Strickland is permissible, that holding is inapplicable here and those

cases are unmistakably distinguishable from the instant one. The Sixth Circuit's

opinion plainly distinguished itself from the “shorthand” cases of Jackson and

isciotti and properly placed itself under the controlling Supreme Court precedent

of Williams v. Taylor, 529 U.S. 362 (2001), to find that both the Ohio trial court and

the Ohio appellate court applied a standard contrary to clearly established federal

law. Pet. App B-19a.

In Jackson, this Court reversed the Sixth Circuit’s holding that the state

court applied the wrong burden of proof under Strickland. Jackson, 542 U.S. at 655.

These three statements the Sixth Circuit found objectionable were: (1) in a post-

conviction proceeding, the defendant has the burden of proving his allegations by a

preponderance of the evidence; (2) it is asking too much that we draw the inference

that the jury would not have believed Hughes at all had Melissa Gooch testified;

and (3) Petitioner failed to carry his burden of proving that the outcome of the trial

would probably have been different but for those errors. Id. at 654-655. The first

statement was “reasonably read as addressing the general burden of proof in

postconviction proceedings with regard to factual contentions...” Id. at 654. The

second statement was not seen as implying “any particular standard of probability.”

18

Id. Finally, use of the “unadorned word ‘probably’ is permissible shorthand when

the complete Strickland standard is elsewhere recited.” Id. at 655.

the state court first articulated the correct Strickland standard, but proceeded to

leave out the “reasonable” modifier in subsequent references to the standard. In

Visciotti, the Ninth District Court of Appeals held that the state court used a higher

standard of proof because the state court opinion used the term “probable” without

the modifier “reasonably” in four places. Visciotti, 537 U.S. at 23. As noted above,

the use of the “unadorned word” probably is permissible shorthand. Id. at 24. In

Visciotti, the Court discusses the Strickland test’s terms and the use of shorthand

[The state court’s) occasional shorthand reference to that standard by

use of the term “probable” without the modifier may perhaps be

imprecise, but if so it can no more be considered a repudiation of the

standard than can this Court's own occasional indulgence in the same

imprecision.

537 U.S. at 23-24 (emphasis added).

Yet, in the case at bar, the state courts did not just exclude a simple modifier.

The state courts used no modifier whatsoever. The vital term of “probability” was

stricken from its Strickland analysis, making it clear that an impermissibly higher

standard was applied. The standard was clearly changed to an absolute. It is

apparent that this Court finds the term “probable” (or some analogous variant

thereof) to be absolutely essential to the Strickland standard. The lack of the

“reasonable” modifier is considered “imprecise” but acceptable because it does not

connote 1 different standard. However, the language in the Ohio state courts in

19

Respondent’s post-conviction adjudication indicates that a different standard was

applied.

The removal of the term “probability” from the Stricklan

test, leaving

“would have been different,” changes the test’s burden of proof entirely. Under the

Strickland standard, “reasonable probability” is a burden less than “more likely

than not.” Strickland, 466 U.S. at 693. In other words, the Supreme Court made it

clear that conduct that has fifty percent or less chance of affecting the outcome of a

trial may still satisfy the “reasonable probability” burden of Strickland. In stark

contrast, herein, the state trial and appellate courts’ application of the “would have

been different” standard applies a burden of positive certainty - “that competent

counsel actually would have resulted in [Petitioner’s! acquittal;” a much higher

burden than, and entirely contrary to, the standard set forth in Strickland. Pet. App

B-17a.

Further, Petitioner analogizes to the present case this Court’s conclusion that

the shorthand was occasional in Jackson. Here, it was not occasional. In fact, this

case represents nearly the opposite of Jackson and Visciotti. The only thing

occasional or fleeting in Respondent’s state court adjudication was the correct

standard. As noted by the Sixth Circuit, there was only one correct cite and many

erroneous ones. The erroneous references to the Strickland standard here were

used when the courts were applying the analysis, not when introducing or setting

the stage for the analysis.

20

Petitioner also discusses several circuit court cases in what seems to be an

attempt to create a split in the circuits, although it also cites one in the Sixth

Circuit. According to Petitioner, these cases show “little difficulty following

Visciotti and Jackson.” Petition at 14-15. Petitioner is correct that Visciotti and

Jackson govern the cases it discusses. Respondent's case, however, is not such a

case. ‘This case involves an application of an incorrect standard and its holding is

guided by this Court’s decision in Williams, 529 U.S. 362. There, as here, the

standard was not merely referenced improperly. It was applied that way.

The Sixth Circuit meticulously explained that the standard invoked in the

state court was not merely a shortened, if imprecise, reference. It was not departing

from any precedents, as suggested by Petitioner. Petition at 15. “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 ‘undermineld] confidence in the outcome,’ but to prove

that a trial with competent counsel actually would have resulted in his acquittal.”

Pet. App B-17a.

In fact, as noted by the Sixth Circuit, this Court used an example strikingly

similar to the instant case when interpreting what Congress meant by “contrary to”

in § 2254(d). Id. at 111.

If a state court were to reject a prisoner's claim of ineffective assistance

of counsel on the grounds that the pnsoner 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

21

different,” “opposite in character or nature,” and “mutually opposed” to

our clearly established precedent because we held in Strickland that the

prisoner need only demonstrate a “reasonable probability that . . . the

result of the proceeding would have been different.”

Williams, 529 U.S. at 405-06 (2001) (citing Strickland, 466 U.S. at 694)

That is why this case is far more similar to Williams than Visciotti or

Jackson. In Williams, this Court reversed the Fourth Circuit Court of Appeals

because it applied the wrong standard. “[The Court of Appeals] construed

}2254(d)(1) as prohibiting the grant of habeas corpus relief unless the state court

4 I

‘decided the question by interpreting or applying the relevant precedent in a

manner that reasonable jurists would all agree is unreasonable.” Williams, 529

U.S. at 374. As in Williams, the state courts here changed the analysis; they

changed the standard

Only once does Petitioner attempt to scrutinize what the state courts did. “In

assessing the prejudice, the court observed that ‘none of the defendant’s witnesses

offered any testimony to support defendant’s theory of innocence,’ and ‘[nlone of

their testimony challenges the victim’s account of the events leading to defendant's

convictions.” Petition at 16. This statement, according to Petitioner, demonstrates

that the state court used the correct standard. In point of fact, the only thing these

statements demonstrate are a complete disregard for the realities of this and most

child abuse cases. As correctly noted by the Sixth Circuit, there would be no direct

witnesses to the alleged crime beyond the perpetrator and the victim. Pet. App B-

25a. Therefore, there would be no witness to testify to innocence or to contradict

oe. phoebe

“Maths

22

the alleged victim’s account of the events. “The circumstances ordinarily

surrounding an accusation of child sexual abuse underscore this concern for

developing impeachment evidence.” Id.

Contrary to the suggestion of Petitioner, the Sixth Circuit approached

§2254(d) precisely as directed by this Court in Williams. The Court of Appeals first

asked if the state court decision “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.” 28 USC § 2254(d).

Consistent with Williams, it found that the state court decision was contrary to

clearly established Supreme Court precedent, Strickland. “[T]herefore the Court of

Appeals was “unconstrained by § 2254(d)(1) . . . and de novo review [was]

appropriate.” Pet. App B-19a.

Petitioner concludes its arguments regarding this Question Presented by

claiming that the Sixth Circuit only held that the state courts’ opinions were

“contrary to” federal law on the second prong of Strickland. Petition at 16°17

Again, Petitioner mischaracterizes the Sixth Circuit’s opinion. The Sixth Circuit

did determine that de novo review was proper because of the failure to adhere to

Strickland in the second prong of its test for ineffective assistance of counsel

However, when looking at trial counsel's performance, the Sixth Circuit clearly

determined that it fell below any constitutionally permissive standard. The Sixth

Circuit did so with considerable deference to the state courts’ findings. In fact, the

Sixth Circuit refused to consider both Petitioner's ex-wife’s and ex-mother-in-law’s

testimony because the findings by the state court relative to Mrs. Vasquez and Mrs

Kitchen were entitled to deference under the AEDPA. .The Sixth Circuit employed

the proper AEDPA deference and found trial counsel's performance impermissibly

deficient. Pet. App B-32a

If this Court were to accept Petitioner’s contention, it would follow that as

long as there is a recitation to a correct standard, it does not matter what the state

court actually does or how it applies the standard. This will easily and quickly

transfer from an ineffective assistance of counsel analysis to other areas of the law

It would not be an unreasonable stretch to say that as long as a state court correctly

stated that the prosecution had the burden of proving guilt beyond a reasonable

doubt, federal courts could not interfere if the state court then went on to actually

apply a preponderance of the evidence standard in assessing the sufficiency or

weight of the evidence. Such a result would leave the federal court in the secondary

role of merely looking for the recitation of certain words and leaving any analysis of

federal law to the state courts

This flawed interpretation of federal law appears to be exactly what

Petitioner is urging. “(H]aving shown that it was aware of the correct law, the court

did not need continually to incant magic words to receive deference.” Petition at 16

Petitioner's proposal that a state court opinion is entitled to deference regardless of

the analysis as long as it initially correctly recites the legal principle on a single

occasion 1s Clearly contrary to federal law. As this Court noted in Williams,

Congress did not intend that “federal courts actually defer to a state-court

24

application of the federal law that is, in the independent judgment of the federal

court, in error.” Williams, 529 U.S at 387

B The Sixth Circuit Decision Properly Applied Both AEDPA Standards and this

Court's Precedents in Determining That Respondent Received Ineffective

Petitioner next asserts that the Sixth Circuit’s conclusion that Respondent

received ineffective assistance of counsel was mistaken based on the specific facts of

this case. Petition at 18. However, this Question Presented does not comport with

this Court’s rules guiding what types of cases are traditionally subjection to

acceptance. Rule 10 of the Rules of this Court establishes that certiorari

jurisdiction is designed to serve broad purposes. It is not for correcting the error in

particular cases. Rule 10 explains

Review on a writ of certiorari is not a matter of right, but of judicial

discretion. A petition for a writ of certiorari will be granted only for

compelling reasons. The following, although neither controlling nor

fully measuring the Court’s discretion, indicate the character of the

reasons the Court considers

(a) a United States court of appeals has entered a decision in conflict

with the decision of another United States court of appeals on the

same important matter; has decided an important federal question in

a way that conflicts with a decision by a state court of last resort; or

has so far departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower court, as to

call for an exercise of this Court’s supervisory power:

(b) a state court of last resort has decided an important federal

question in a way that conflicts with the decision of another state

court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an

important question of federal law that has not been, but should be

settled by this Court, or has decided an important federal question in

a way that conflicts with relevant decisions of this Court

A petition for a writ of certiorari is rarely granted when the asserted

error consists of erroneous factual! findings or the misapplication of a

properly stated rule of law

Petitioner's second Question Presented seems to fall into just the type of category

that this Court seeks to avoid when granting certiorar!

Again protesting the refusal to give AEDPA deference (the “decision to grant

Vasquez habeas relief hinged entirely on its ability to wriggle free of the constraints

of the AEDPA” (Petition at 18)), Petitioner asserts that Respondent Vasquez’s trial

counsel met the constitutional requirements of effective assistance of counsel

However, as correctly determined by both the District Court? and the Court of

Appeals, trial counsel fell far below the constitutionally sufficient bar and provided

ineffective assistance of counsel as he did no preparation or investigation before

Respondent’s trial on charges that could, and did, result in a life sentence

First, as noted by the Sixth Circuit, it is essential that this inquiry is

undertaken with an understanding of the type of case at issue here. Respondent

was accused of the sexual abuse of a minor. It is undisputed that there are no

witnesses to the alleged abuse. Pet. App B-25a. This is frequently the fact in these

type of cases. Outside of the defendant testifying, there can be no direct evidence of

innocence, only circumstantial. Here, as in other cases involving sexual abuse of a

minor, the evivence that trial counsel failed to uncover and present at trial relates

to impeachment of the complaining witness and those offering circumstantial

evidence oi Respondent's guilt. That the missing evidence alleged is impeachment

evidence and not direct evidence of innocence does not affect the principles of

Strickland or the basic components of effective assistance of counsel. As observed

The Sixth Circuit disagreed with the District Court's rationale for engaging in de nov:

review

26

by the Sixth Circuit, “this is because we are assessing the reasonableness of the

representation and the defenses available to the attorney change what is

reasonable: where there are no direct witnesses to the alleged crime beyond the

perpetrator and the victim, impeachment evidence 1s at a premium.” Pet. App B

25a

In some respects, Petitioner continues to argue the first question presented

because jt claims that the state court determination of facts should be given more

deference. However, if this Court finds that the Court of Appeals correctly

determined that the state court acted contrary to Federal law, the District Court

and the Court of Appeals were free to review the facts de novo. The Federal Courts’

determination that Respondent received ineffective assistance of counsel is more

than supported by the evidence

Morcover, the Sixth Circuit specifically rejected the District Court's

wholesale review of the factual determinations of the state courts. As correctly

stated by the Sixth Circuit, the “AE DPA also supplies 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 USC. § 2254(e)(1). Only if

‘ ! ;

Vasquez ‘rebutls) the presumption of correctness by clear and convincing evidence

may we disregard those determinations. The district court held that this burden

was carried.” Pet. App B-19a. The District Court stated: “Nevertheless, the Court

finds that Vasquez has met his burden. Sadly, in this case his appointed counsei aid

27

almost nothing before or during trial, in a situation where the prosecution's case

was weak and Vasquez faced life imprisonment.” Pet. App C-106a.

The Court of Appeals rejected the District Court’s thorough and detailed de

novo review of the facts as incorrectly determining that it was able to avoid the

AEDPA deference to findings of fact. Pet. App B-21a. The Sixth Circuit specifically

rejected the District Court's refusal to defer to the state court’s findings that Joanne

Kitchen and Mrs. Vasquez would have been helpful witnesses and that trial

counsel's failure to contact Mrs. Vasquez was inexcusable. Id. at B-23a. Instead,

the two part test of Strickland was undertaken with just the trial counsel's failure

to contact other witnesses and failure to recognize and use the EMS run sheet as

the vital evidence that it is.4 Id

Petitioner correctly notes that it is the testimony of three potential witnesses

and the EMS run sheet that ultimately establish that the Strickland standard was

met. However, the inquiry of the Strickland test is broader thar that

A counsel's performance is a deprivation of a defendant's Sixth

Amendment right to counsel where a defendant shows his counsel's

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.’ And a deficient performance is prejudicial if ‘there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable

4 “l'o reiterate, on the facts as we must take them, based on the implications of the state

court's decision and the operation of AEDPA deference, Vasquez cannot base his ineffective

assistance of counse! argument on the failure to investigate Karra Vasquez or Joanne 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.” Pet. App B-23a

28

probability is a probability sufficient to undermine confidence in the

outcome.

Strickland, 466 U.S. at 687-88, 694 (internal cites omitted.)

Approaching the first prong of the test, the appropriate question is whether

trial counsel's assistance “fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. Instead of ignoring the “healthy amount of deference to

counsel's tactical and litigation decisions,” as suggested by Petitioner, the Sixth

Circuit detailed the deference to be given. “... counsel's tactical and litigation

decisions...are ‘virtually unchallengeable’ in the ordinary case.” Pet. App B-24a

(quoting Strickland, 466 at 690). The most important aspect of this inquiry, that

Petitioner has over looked, is precisely the one at issue here. As maintained by the

Sixth Circuit

But this deference to strategic choices has always been tempered by a

requirement that the choices themselves be informed: ‘strategic choices

made after less than complete investigation are reasonable precisely to

the extent that reasonable professional judgments support the

limitations on investigation.’ Accordingly, ‘a particular decision not to

investigate must be directly assessed for reasonableness.’ Our circuit

has expressed this principle with more color: ‘the investigation leading

to the choice of a sovcalled trial strategy must itself have been

reasonably conducted lest the ‘strategic’ choice erected upon it rest on a

rotten foundation.’

Berghuis, 490 F.3d 482, 488 (6% Cir. 2007)

It was this area of inquiry that reasonably led the Sixth Circuit to conclude that

trial counsel was constitutionally ineffective.

Focusing on trial counsel's duty to investigate and prepare for the case, the

Sixth Circuit pointed out that there is not a definitive statement of what a

"reasonable investigation” entails. Pet. App B-24-25a. “But well established

29

principles suggest that the 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.” Id. at 24a. Again, the fact that the key pieces of evidence and critical

witnesses® would not go to the heart of the innocence question but instead to

challenge the victim's credibility does not change the present analysis considering

the type of case for which Respondent has been convicted.

The question becomes: were trial counsel's efforts at investigating and

preparing for Respondent's trial reasonable? The Sixth Circuit and the District

Court unequivocally answer the question in the negative:

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 @‘ense. Firet, 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 is 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 night it occurred, and with A.L. immediately her

accusation, all suggesting that she may have had information useful to

Petitioner and the state courts lay the blame for the failure to contact witnesses squarely at

Respondent's feet. However, the Sixth Circuit appropriately found that the cases do not support “the

proposition that a defendant gets only the defense that he is capable of providing personally. (They

hold only that it is 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, 435 (6th Cir.

2002)) The Sixth Amendment guarantees minimally effective representation because the

adversarial! testing of the state's case, a corneratone of our criminal justice system, is very difficult

without counsel. See Kimmelman v. Morrison, 477 U.S. 365, 384, (1986) (‘In making the competency

determination, the court should keep in mind that counsel's function . . . is to make the adversarial

testing process work .. . .) (internal quotation marks omitted). An attorney (especially a.

experienced one like [trial cousel] has skills and knowledge beyond the ken of an average crimin¢]

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.” Pet. App B-

26a, n. 2

30

the first two facts. Fourth, he had discovery materials from the state

that, among other things, contained the EMS report and the names

and contact information of the people the police investigated, including

Becky Shaffer.

Pet. App B-27a

Against this backdrop, the Sixth Circuit determined that the failure to

investigate, not the failure to utilize or call anyone as witnesses, was unreasonable.

Id. The Court also went on to explain that the “prosecution’s case affects our

judgme..t regarding an attorney's decisions against investigation.” Id. (citing Brown

v. Smith, 551 F.3d 424 (6th Cir. 2008).) In the instant case, trial counsel knew that

“Becky Shaffer 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. He was

therefore deficient by declining to pursue these leads.” Id. at 28a. It was purely

unreasonable “to interview no potential witnesses and develop no defense.” Id.

The Sixth Circuit then individually reviewed each witness and piece of

evidence that it found relevant and carefully explained why the Ohio courts were

incorrect. First, unlike Petitioner and the state courts, the Sixth Circuit wisely

found that Mrs. Kitchen’s alleged statement to trial counsel, which she denies

making, that family members were unwilling to help should not have discouraged

trial counsel from contacting Mrs. Becky Shaffer. “[I]t is incredible for [trial

counsel] to base a decision against interviewing her on a single statement from the

witness's mother.” Pet. App B-29a. This is especially true since it was not necessary

to go through her mother to contact her as it was with Respondent's ex-wife. Id.

The Court went on to state that the fact that Mrs. Shaffer was married to a state’s

witness may explain a reason to not call her to the stand, “but not why he did not

attempt to talk with her in the first instance. Cf Brown, 551 F.3d at 432 ("(Olur

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.").” Id. Moreover, trial counsel knew that she “was likely to

have relevant information and talking with her could help develop an otherwise

non-existent defense.” Id. Unlike the mischaracterization that all family members

refused to cooperate, trial counsel did not reach this conclusion after any reasonable

investigation. Undisputedly, he had one conversation with Mrs. Kitchen during

which she allegedly stated that family may not want to cooperate. Trial counsel

made no attempt to contact anyone else or determine if that statement was based in

truth. Just as a non-cooperative defendant does not extinguish counsel’s obligation

to investigate, neither does a single uncooperative witness.

Another devastating failure on the part of trial counsel, as determined by the

Sixth Circuit, is the inexplicable disregard for the EMS run sheet. This, the Sixth

Circuit claims, should have been even more obvious than the necessary

investigation that trial counsel failed to conduct. Pet. App B-29-3la. The EMS

report contained information demonstrating inconsistencies in the victim’s story

“she described the attack then as ‘he put it in me’ and not as Vasquez licking her

vagina [as she did at trial], and she claimed that she had taken a shower on the

32

night of the attack (which contradicts her father's testimony that she fell asleep on

the couch with her father).” Id. at 30a.

Petitioner argues that the state court statement that there was no

contradiction between the EMS report and the testimony because the “it” referred to

in the run sheet could have been Petitioner's tongue and that she could have

showered after her father went to sleep. “This post hoc harmonization is not

impossible as a matter of logic but does not explain [trial counsel’s] indifference to

the potential inconsistency (the disharmonious explanation is probably more

plausible).” Pet. App B-30a. “He did not try to find out whether or not the testimony

of [the victim] and her father would stand up to impeachment on the basis of the

EMS report. Moreover, [trial counsel] 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.L. that took place much later.” Id. Penetration and

licking are much different and this important inconsistency should have been

“recognized as premium impeachment evidence.” Pet. App B-30a. The Sixth Circuit

also claimed that the run sheet should have led to trial counsel’s interviewing the

EMS responders. Id. “hey 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.L. was at ease in the ambulance and more cancerued with the

attention she was receiving than disturbed by the abuse she reported.” Id.

be

=

#

a

a

o

2

é

33

Dismissing the contention that the failure to do any investigating was trial

strategy, the Sixth Circuit statec that “that decision was ‘objectively unreasonable

because it was a decision made without undertaking a full investigation’ and

therefore not due deference. Parrish Towns v. Smith, 395 F.3d 251, 259 (6 Cir

2005) (internal quotations omitted); see also Workman v. Tate, 957 F.2d 1339, 1345

(6th Cir. 1990) (Where counsel fails to investigate and interview promising

witness*s, and therefore has no reason to believe they would not be valuable in

securing defendant's release, counsel's inaction constitutes negligence, not trial

strategy.’)” Pet. App B-3la. In fact, the only pretrial work offered by trial counsel

was some minimal legal research on these types of cases in general. Id. This

should have pointed him toward the investigation he failed to

undertake. It is well known in the literature (and the cases cited

above) that the credibility of the child witness is 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. This suggests that, even without knowing what Itrial

counsel] knew about the available evidence, Becky Shaffer and the

EMS 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 believe 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.”

Pet. App B-31-32a

Finally, Petitioner seeks to blame, once again, the wholesale failure to

investigate or prepare for trial on Respondent. Petition, pp. 23-24. Although this

was not addressed by the Sixth Circuit, the failure of Respondent to waive a

constitutionally protected right (the right to a speedy trial), especially in the face of

being wholly uncertain about his trial counsel with whom he met on three occasions

34

for a total of 45 minutes, does not excuse trial counsel’s failure to prepare for trial in

any manner whatsoever.

The Sixth Circuit’s final step was to examine whether this deficient

performance resulted in prejudice to Respondent. As did the District Court, the

Sixth Circuit determined that it did. “[I]n 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 probability that his trial would have had a different outcome; our

confidence in the verdict is indeed undermined.” Pet. App B-37-38a

Regarding the EMS run sheet, it “demonstrates a specific and nonctrivial

difference in her story over how the attack took place: the run-sheet implies [she]

reported that there was penetration by Vasquez's penis in contradiction to the

evidence at trial.” Pet. App B-32a. This is a substantially prejudicial error and

cannot be discounted by Petitioner's claim that the tongue was it. Petition at 26

The Sixth Circuit specifically addressed this concern:

Coupled with the inconsistency about the shower, we think it likely a

jury would consider the run-sheet evidence of instability in A.L.'s story.

This is especially so because it is unlikely that the jury would believe 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

6 “In determining whether Vasquez has carried his burden, we must evaluate the deficiency in

light of the ‘totality of the evidence before the ... jury.’ 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 . . .

’ 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.” Pet. App B-32a. (internal cites omitted)

window of time, with her father's presence upstairs, and on the same

bunk-bed where Vasquez's children were sleeping

Pet. App B-32-33a, n. 3.

The other failure left to address in terms of prejudice is Becky Shaffer. Mrs

Shaffer testified at the post-conviction hearing. The Sixth Circuit accurately

determined that she would have revealed essential inconsistencies in the victim’s

alleged timeline. Pet. App B-33a. Further, Mrs. Shaffer witnesses the victim's

father (a police detective) coaching his daughter and prompting her replies to law

enforcement. Pet. App B-30a. She further would have challenged the assertion by

Petitioner that the victim was traumatized and not herself. Mrs. Shaffer witnessed

the victim acting relaxed and excited about attention and the possibility of being on

TV. Id. Of course, this is not indicative of a young girl who recently finally revealed

a traumatic expenence. Pet. App B-33-34a

Equally as important, speaking to Mrs. Shaffer would have, as it often does,

led Respondent's trial counsel to speak to other potential defense witnesses. Pet

App B-33a. The testimony of Tammy Salopek and her daughter, Ashley Snyder at

the post-conviction hearing could have been essential to an acquittal for

Respondent. Mrs. Salopek was friends with both the Shaffers and the victim’s

family. Id. at 10a. She and her daughter were in continuous contact with the victim

both before and after the event. Id. “They indicated they would have testified to

[the victim’s] lack of truthfulness -- specifically her willingness to lie to get

attention.” Id. Further, the victim’s father testified that his daughter was

devastated and not herself after she revealed the abuse. Mrs. Salopek and her

36

daughter would have testified that in the week immediately after the accusation,

there was no change in the victim’s behavior, even though they had ample

opportunity to observe her since she slept at their house that week. Id. Finally, the

two could have bolstered Respondent's attempt to discredit the victim and argue

that she concocted the story. During the summer of 2000, Ashley Snyder had

actually been the victim of sexual molestation and told the victim about it. Id. This

testimony, that the victim is not trustworthy and does not understand the

consequences of lies, was not acting strange after she revealed the abuse, and had

just recently heard of the sexual abuse suffered by Snyder, “challenges the specifics

of [the victim’s] story, her motivations, and her general truthfulness.” Pet. App B

33a. It also “undermines the corroboration evidence presented by the state — that

[the victim’s] story did not change in her retelling of it, that she acted out of

character after the attack, and the implausibility of a nine-year old making up such

a sexual-molestation story.” Pet. App B-33-34a

Petitioner argues that it was safe to assume that Mrs. Shaffer would not have

been cooperative because of the conversation with Mrs. Kitchen and because Mrs

Shaffer did not want to make a written statement to the police, even though she

had already made a verbal one. These facts are completely irrelevant to the duty

trial counsel owed to at least investigate her, speak to her. As noted above, the fact

that her husband was a state witness or that her mother said the family may not be

willing to help tells trial counsel nothing about her willingness to cooperate to help

the husband of her sister. Further, her desire to refrain from making a written

statement is also immaterial because, in addition to the fact that she actually spoke

to the police, she also may have responded differently to certain, direct questions

asked by trial counsel with a different agenda and perspective than the police

There is just no evidence to support these assertions. Her testimony at the post

conviction hearing would undoubtedly have had an effect on the jury

With regard to Mrs. Salopek and her daughter, Petitioner only argues that

the evidence regarding the daughter's previous molestation was inadmissible in the

post-conviction hearing because Respondent failed to provide a proper foundation

The Sixth Circuit failed to address this fact. Petitioner argues that this evidence

should not have been considered by the Sixth Circuit because of the trial court’s

determination_that it could not consider it. Petition at 20. The Sixth Circuit

however, was free to consider it because it had already found the trial court's

factual determination regarding this evidence f awed

Moreover, the Sixth Circuit foune that the evidence at issue was not

cumulative as to the narrow admissions trial counsel was able to elicit at trial

Without any factual basis for cross-examining, he was only able to draw out that

the victim had some issues with telling the truth, just as every kid did. The

evidence presented at the post-conviction hearing went far beyond this innocent

generality and provided concrete and compelling evidence that the victim was

fabricating the story. “The evidence provides direct and specific challenges to her

motivations (she wants to be on TV, she wants attention), her trustworthiness (she

lies 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 molesté d), each of which was not presented to the

jury via Butler's cross-examinations.” Pet. App B-36a. The missing evidence

“underminels] confidence in the outcome.” Strickland, 466 U.S. at 6

Conclusion

lor the above stated reasons, Respondent Vasquez requests the Court deny

Petitioner Warden's Petition for Certiorar, The Warden's Ppetition misrepresents

the scope and analysis of the Sixth Circuit's decisions and opinions, as well as the

facts of the underlying case. The Sixth Circuit’s decisions create no conflict of law,

will in no way create any sort of confusion in this Court's jurisprudence, nor does

Petitioner provide any other reason to warrant revisiting these well and clearly

established areas of the law

Therefore, Petitioner Warden's Petition should be denied

Respectfully submitted

GORDON S. FRIEDMAN (0021946) *

counsel of record

ANDREA L. WHITAKER (0074461)

1370 Ontario Street, Suite 600

Cleveland, OH 44113-1752

Telephone: (216) 241-1430

Facsimile: (216) 621-0427

E-Mail gorlaw@f-glaw.com

whitakerandrea@yahoo.com

Attorneys for Respondent