RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Bigelow v. Williams No. 02-4203 ELECTRONIC CITATION: 2004 FED App. 0132P (6th Cir.) File Name: 04a0132p.06 THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Jill E. Stone, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. UNITED STATES COURT OF APPEALS Diane Mallory, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee. FOR THE SIXTH CIRCUIT _________ _________________
MICHAEL BIGELOW , X OPINION Petitioner-Appellant, - _________________ - - No. 02-4203 SUTTON, Circuit Judge. A state-court jury convicted v. - Michael Bigelow of kidnapping, felonious assault and arson > for his alleged involvement in an attack on a woman in , Toledo, Ohio on June 17, 1993. From his initial arrest to the JESSE WILLIAMS, Warden, - Respondent-Appellee. - present, Bigelow has insisted that he did not commit the crime and indeed could not have committed the crime because N he was residing and working 150 miles away in Columbus, Appeal from the United States District Court Ohio on the day of the assault. At each stage in the for the Northern District of Ohio at Toledo. proceedings—in state court, in his state post-conviction No. 01-07626—John W. Potter, District Judge. proceedings, and now in his federal habeas corpus proceedings—Bigelow also has claimed that his court- Argued: January 30, 2004 appointed lawyer, Peter Rost, did not adequately investigate this alibi defense, most notably by failing to identify three Decided and Filed: May 10, 2004 witnesses who could have placed Bigelow in Columbus on the day of the assault. Before: MERRITT and SUTTON, Circuit Judges; FEIKENS, District Judge.* In one sense, it is easier to sympathize with Rost than with Bigelow when it comes to this claim. Bigelow lived an _________________ itinerant life in Columbus; he did not remember exactly where he was in Columbus on the day of the crime; he did not COUNSEL fully communicate all possible leads to Rost and apparently did not inform him about his own letter-writing investigation ARGUED: Jill E. Stone, PUBLIC DEFENDER’S OFFICE, efforts from prison; and Rost in fact did pursue many leads, Columbus, Ohio, for Appellant. Diane Mallory, OFFICE OF none of which bore fruit. Until four days before Bigelow’s trial, it is indeed difficult to second-guess Rost’s efforts, frustrating as they were, to advance his client’s defense. * The Honorab le John Feikens, United States District Judge for the Eastern District of Michigan, sitting by designation.
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On the fourth day before the commencement of the criminal re-commit himself to finding additional alibi witnesses in the trial, however, Vernon Greenlee, an employee of Orkin Pest Columbus area—whether by asking for a postponement of the Control, called Rost and told him that he could place Bigelow trial, by hiring an investigator or by traveling to Columbus in Columbus on the day of the crime. (Greenlee’s call was himself to talk firsthand to the other people that might have prompted by a letter that Bigelow had written to Orkin from been working at the same house as Greenlee (and apparently prison.) Realizing the significance of this testimony, Rost Bigelow) on June 17th. Had Rost pursued any of these subpoenaed Greenlee and one other Orkin employee to testify options, he likely would have identified three other witnesses, at the trial. The testimony was helpful because Greenlee all of whom have since come forward to testify that they saw identified Bigelow in court as the man he saw at the home of Bigelow in Columbus on the day of the attack and none of Gary Chasen in Columbus on June 17th, the day of the whom had a prior relationship with Bigelow (or any other assault, but the testimony was vulnerable to impeachment reason to be untruthful). because Greenlee worked at the house at issue on two consecutive days. In convicting Bigelow, the jury apparently Whether Rost’s failure to take additional action after being was swayed by the two primary pieces of evidence submitted contacted by Greenlee constituted ineffective assistance by the State—the testimony of the victim who was able to deserves consideration by the district court in the first pick Bigelow out of a lineup (and identify him at trial) based instance and possibly an evidentiary hearing. As the United on brief glances at him during the assault and the testimony States Supreme Court first indicated in Strickland v. of an individual who claimed to see Bigelow (from the back Washington, 466 U.S. 668 (1984), and reaffirmed just and side) running across a field away from the crime scene. recently in Wiggins v. Smith, 123 S. Ct. 2527 (2003), the respect that attorneys’ strategic decisions in a criminal trial In rejecting Bigelow’s ineffective-assistance-of-counsel will receive is proportionate to the extent of the investigation claim, the state courts and federal district court focused they in fact conducted. See Strickland, 466 U.S. at 691 primarily on whether an alibi witness contacted Rost during (“[S]trategic choices made after less than complete the week before trial and whether Rost failed to return the investigation are reasonable precisely to the extent that phone call. The state courts found as a matter of fact that reasonable professional judgments support the limitations on Rost did not know about any other alibi witnesses before the investigation.”). As the case comes to us, there is no trial. The district court properly respected this finding in indication that Rost performed any further investigation after view of the competing evidence on the issue and the rigorous Greenlee came forward—even though his alibi testimony was requirements for rejecting such a finding under The sufficiently important that Rost put him on the stand virtually Antiterrorism and Effective Death Penalty Act (AEDPA), sight unseen. For these reasons and those elaborated below, Pub. L. No. 104-132, 110 Stat. 1214 (1996). we vacate the judgment of the district court, remand the case to the district court and allow it to consider in the first The problem with the district court’s decision is that it did instance whether to grant the writ on the basis of this claim. not address the other aspect of Bigelow’s Sixth Amendment claim: Rost’s failure to conduct any additional investigation after the sudden appearance of Greenlee four days before trial. While the State urges us to reject this alternative argument on our own, we refuse to do so in view of the seriousness of the claim. Once Greenlee appeared, Rost had ample reasons to No. 02-4203 Bigelow v. Williams 5 6 Bigelow v. Williams No. 02-4203
I. very close, almost Marine-like haircut. JA 654. After giving this statement, Schrier looked through photograph arrays and A. The Criminal Trial did so again on several other occasions, but she never recognized any of the men as her attacker. JA 611. An initial On the morning of June 17, 1993, Charlotte Schrier, a real attempt by police to create a composite sketch of the assailant estate agent, was sitting in her car behind an apartment failed to produce a passable likeness. A police artist later complex in Toledo, Ohio, waiting for her next appointment. attempted a free-hand drawing of the man based on Schrier’s At some point she felt a tap on her left shoulder, and she input, the end result of which looked much like her attacker, heard a man’s voice telling her not to move as he entered the Schrier concluded, prompting police to distribute copies of back seat of her car. Although she could detect his presence the sketch to patrol officers and to local media on July 8, in the back seat, she obeyed his commands to face forward 1993. and not turn around. The next day, police brought Bigelow in for questioning At some point, the man instructed her to start the car and based on his resemblance to the man in the drawing. They proceed out of the complex. After Schrier drove a short photographed him, and included his picture in a photo array distance, he asked her to pull over and light his cigarette. shown to Schrier. She pointed out Bigelow’s photo to Schrier did as asked, then resumed driving. While she was Detective Kulakoski but noted that she did not remember the driving, the man threatened her multiple times, saying he deep lines in his face and could not be certain that this was wanted to injure her physically and see her bleed. her attacker unless she saw him in person. Several hours later, Schrier identified Bigelow in a line-up, and he was At some point, the attacker asked Schrier to pull over again. detained. Bigelow maintained his innocence and rejected a This time, he got out of the car, opened her door, and pulled plea offer that included a five-year prison sentence. His case her out by the hair. He first instructed her to lean into the proceeded to trial five months later. back seat, but then told her to get up again. Schrier stood up and faced the car, with the attacker behind and to her right. At trial, the State presented Charlotte Schrier’s testimony, His hand suddenly swung down in front of her face, and she as well as the testimony of Thomas Mermer. Mermer had noticed that he was holding a razor blade. Pressing the blade been near the scene of the incident and had radioed for help. into her hand, he told her that he wanted her to cut her own After doing so, he noticed a man running into the field behind arm. When she hesitated, his arm swung again and he either Schrier’s burning car. Mermer testified that he could see the cut or forced Charlotte to cut her arm with the blade. She man only from the side and behind, JA 628; unlike Schrier, then turned around to face him, kicked him in the groin and the police never showed Mermer any photo arrays or asked managed to escape. After Schrier fled, the assailant him to attend a line-up. Two weeks before trial, however, apparently set her car on fire. Mermer saw Bigelow giving an interview on television and identified him as the man he saw running into the field on the Schrier gave a statement about the attack to Detective day of the crime. JA 629–30. The State did not introduce Kulakoski on the day after the incident. She described her any other evidence connecting Bigelow to the crime. attacker’s clothing—white T-shirt, brown pants and tennis shoes—and his physical appearance—white male, late 30's to The defense claimed that Bigelow was in Columbus, Ohio, early 40's, 5'9" or 5'10", no facial hair or visible tattoos and a 150 miles southeast of Toledo, on June 17, 1993, the day of No. 02-4203 Bigelow v. Williams 7 8 Bigelow v. Williams No. 02-4203
the attack. In support of this alibi defense, it relied on two B. Bigelow’s Allegations of Ineffective Assistance of witnesses. John Laughner, the Columbus branch manager of Counsel Orkin Pest Control, testified that his office records showed that Vernon Greenlee, an employee of Orkin, had worked at Bigelow first complained about the ineffectiveness of his the Columbus home of Gary Chasen over a period of two lawyer in a letter to the state court before trial. The letter days, including from 11:00 a.m. to 5:00 p.m. on June 17th. prompted the court to conduct a hearing on November 2, JA 677. Greenlee also testified, and he confirmed that he 1993, to determine whether Bigelow’s lawyer, Peter Rost, treated the Chasen home for termites on the 17th. JA 684. should be replaced. At the hearing, Rost explained the He testified that a man had helped him move some objects difficulties of representing Bigelow and the investigative from the garage so he could perform the treatment, and that work he had undertaken on behalf of his client. Among the the man was present when Greenlee arrived and when he left. difficulties in supporting the alibi defense were that Bigelow JA 687. Greenlee identified Bigelow in court as the man who could not remember exactly where in Columbus he had been helped him in the garage on June 17th. JA 690–91. His on June 17th and that Bigelow suffered from a then-untreated testimony also acknowledged, however, that he had failed to mental illness, which contributed to his inability to aid the identify Bigelow’s photograph in an array shown to him by defense. JA 471, 726-27. police, that he had worked at the Chasen home over two consecutive days, not just on the date of the crime, and that he Despite these challenges, Rost noted that Bigelow had had performed between fifty and one hundred jobs since June provided him with a list of names and possible leads—all but 17th of that year. Bigelow did not testify. one of which Rost had pursued by telephone. In particular, Rost talked on the telephone to Gary Chasen, who besides The jury convicted Bigelow of kidnapping, felonious being the owner of 654 Indian Mound Road where Greenlee assault and arson, and the trial court sentenced him to had worked on June 17th, also owned rental property in consecutive prison terms, which together created a twenty to Columbus where Bigelow at one point had lived. Chasen told forty-two year prison term. Bigelow unsuccessfully appealed Rost he could not confirm that Bigelow was in Columbus on his conviction. He then filed a petition for state post- the 17th. Similarly, Dan Watson and Deborah Gray, who also conviction relief claiming he had received ineffective owned a home in Columbus where Bigelow had rented a assistance of trial counsel because his court-appointed lawyer room, were unable to remember whether Bigelow was with had not adequately investigated his alibi defense. The state them on the 17th. At Rost’s request, they checked the records trial court denied Bigelow’s petition, but the appeals court of the telephone line that Bigelow shared with them to see if remanded for an evidentiary hearing. After hearing testimony Bigelow had placed any calls to his friends or family on that from the three alibi witnesses whom Bigelow claimed his date. The records showed only calls for June 20th and June attorney should have identified before trial, the court again 24th, but not June 17th. Rost followed up on other leads that denied his petition, the appeals court affirmed, and the state Watson and Gray provided, but they too proved unsuccessful. supreme court denied review. Bigelow filed this suit for a Rost next contacted Greyhound Bus to determine whether writ of habeas corpus in federal district court, again claiming Bigelow had traveled to Columbus around June 17th; ineffective assistance of counsel in violation of his Sixth (and Greyhound informed Rost that they did not have passenger Fourteenth) Amendment rights. records from June. Rost then called Bigelow’s physician and dentist in Columbus to determine whether Bigelow had attended an appointment with either of them on June 17th; No. 02-4203 Bigelow v. Williams 9 10 Bigelow v. Williams No. 02-4203
their records showed he had not. Finally, Rost searched when he arrived in the morning and when he left late in the Bigelow’s personal papers for documentation that could day, JA 805, 810; he spoke with Bigelow for “quite a while”; establish Bigelow’s presence in Columbus on June 17th, but and he recalled that Bigelow cut his hand and asked for a again to no avail. After hearing about these efforts, the trial band aid, JA 803. judge denied Bigelow’s motion for a change of counsel. The three witnesses agree that one of them (likely Patridge) On the day after this hearing, Bigelow began his own contacted Gary Chasen to tell Chasen about Bigelow’s letter investigation. He wrote two letters from his prison cell—one and their memories of him being there. Chasen, however, to Orkin Pest Control, the other to Moonlighting Landscape told Patridge that it was better not to get involved and that she and Lighting. In both letters, he asked whether anyone at the should ignore the letter. JA 757. Nonetheless, Patridge companies could verify his presence at Gary Chasen’s home claimed that she called Rost and left him a message, but she at 654 Indian Mound Road on June 17th and asked them to could not remember when she did so and whether she left the contact Rost if they had any such information. At Orkin, message on an answering machine or with Rost’s assistant. Laughner received Bigelow’s letter, checked his records of JA 766, 768. Rost claimed that he never received any work performed, and learned that Greenlee had in fact been message from Patridge and did not learn of the existence of there. He spoke to Greenlee, who remembered seeing (and the Moonlighting witnesses until he read Bigelow’s state talking to) Bigelow that day. On the evening of Thursday, post-conviction petition. Bigelow insisted that he told Rost November 11th—four days before the trial was to begin on about both the Orkin and Moonlighting letters. JA 824–25. Monday, November 15th—Greenlee telephoned Rost about his recollection of Bigelow at the Chasen home on June 17th. Bigelow’s essential claim, in both the state and federal The phone call apparently did not spur Rost into performing post-conviction proceedings, is that Rost failed to satisfy the any further investigation, though he did subpoena Laughner minimal requirements of effective advocacy because he did and Greenlee and did present their testimony at trial. not adequately investigate Bigelow’s alibi defense. As a factual matter, Bigelow claims that Rost knew about the Bigelow’s second letter, to Moonlighting Landscape, also Moonlighting Landscape lead, either because Bigelow told arrived at its intended destination. Christine Patridge (a co- him or because he received the message from Christine owner) checked the company’s records and learned that she, Patridge, and accordingly Rost’s failure to contact these Vic Timler (also a co-owner) and Jay Loyzelle (an employee) witnesses and present their testimony at trial constituted had all been at the Chasen home on June 17th. Like Orkin, ineffective assistance of counsel. Regardless of whether Rost they had been hired by Chasen to help prepare his home and actually knew about the Moonlighting employees before trial, yard for his daughter’s wedding. All three recalled seeing Bigelow adds that Rost’s failure to investigate adequately still Bigelow on June 17th and either having an extended constitutes ineffective assistance of counsel. Had his encounter with Bigelow or noticing an idiosyncratic feature investigation been more thorough—i.e., had Rost obtained of his behavior or appearance. Patridge recalled that Bigelow court funds for and hired an investigator, traveled to the talked to her for an extended period of time, and that he was location of Bigelow’s alibi or at least investigated further very inquisitive about their landscaping work. JA 756. once he learned that Greenlee could place Bigelow at the Timler noticed Bigelow oddly trimming a boxwood shrub Chasen residence on the day of the attack—he undoubtedly with scissors and noticed that he was dressed atypically for would have uncovered the Moonlighting employees. The yard work. JA 105, 776. Loyzelle saw Bigelow there both Ohio courts rejected these arguments, as did the federal No. 02-4203 Bigelow v. Williams 11 12 Bigelow v. Williams No. 02-4203
district court, determining that Rost’s assistance was not that reasonable professional judgments support the limitations ineffective under Strickland v. Washington. on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision II. that makes particular investigations unnecessary.” Id. at 690–91; see also O’Hara v. Wigginton, 24 F.3d 823, 828 (6th In reviewing the denial of a habeas petition, we consider the Cir. 1994) (“[A] failure to investigate, especially as to key district court’s legal conclusions anew, applying the same evidence, must be supported by a reasoned and deliberate standard of review to the state court decision that the district determination that investigation was not warranted.”); cf. court applied. See Smith v. Hofbauer, 312 F.3d 809, 813 (6th ABA Standards for Criminal Justice 4-4.1(a) (3d ed. 1993) Cir. 2002). That standard of review is supplied by (“Defense counsel should conduct a prompt investigation of AEDPA—The Antiterrorism and Effective Death Penalty the circumstances of the case and explore all avenues leading Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996). When a to facts relevant to the merits of the case and the penalty in state court has already adjudicated a federal constitutional the event of conviction.”). claim, AEDPA establishes that the writ of habeas corpus may issue in just two instances: (1) if the state court decision “was In establishing prejudice, Bigelow must demonstrate a contrary to, or involved an unreasonable application of, “reasonable probability” that the result of his trial would have clearly established Federal law, as determined by the Supreme been different but for Rost’s mistakes. Strickland, 466 U.S. Court of the United States,” 28 U.S.C. § 2254(d)(1); or (2) if at 694. A “reasonable probability” is a probability “sufficient the state court decision was “based on an unreasonable to undermine confidence in the outcome,” id., but something determination of the facts in light of the evidence presented less than a showing that the outcome more likely than not in the State court proceeding,” id. § 2254(d)(2). would have been different, id. at 693. While the petitioner need not conclusively demonstrate his “actual innocence,” To succeed on an ineffective assistance of counsel claim, a compare Schlup v. Delo, 513 U.S. 298, 327 (1995) (requiring petitioner must show (1) that his lawyer’s performance was petitioner to establish more likely than not that a reasonable deficient and (2) that the deficiency prejudiced the defense. juror would not have convicted him), with Strickland, 466 Strickland, 466 U.S. at 687. In establishing the first U.S. at 693 (“we believe that a defendant need not show that requirement, the petitioner must demonstrate that his lawyer’s counsel’s deficient conduct more likely than not altered the performance “fell below an objective standard of outcome in the case”), the focus should be on whether the reasonableness” as measured by “prevailing professional result of the trial was “fundamentally unfair or unreliable,” norms.” Id. at 687–88. Judicial review of the lawyer’s Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). performance must be “highly deferential,” and “indulge a strong presumption” that a lawyer’s conduct in discharging A. his duties “falls within the wide range of reasonable professional assistance,” since reasonable lawyers may Bigelow first claims that Rost knew about the disagree on the appropriate strategy for defending a client. Id. Moonlighting Landscape employees but refused to at 689. While “strategic choices made after thorough communicate with them about testifying as alibi witnesses. investigation of law and facts . . . are virtually In the state courts and in the district court, no one has debated unchallengeable[,] [] strategic choices made after less than whether this allegation, if true, would present a serious Sixth complete investigation are reasonable precisely to the extent Amendment claim. For the failure to call a known alibi No. 02-4203 Bigelow v. Williams 13 14 Bigelow v. Williams No. 02-4203
witness generally would constitute ineffective assistance of between the date of Bigelow’s letter to Moonlighting counsel. See, e.g., Matthews v. Abramajtys, 319 F.3d 780, (November 3rd) and the date of the trial (November 15th), she 789–90 (6th Cir. 2003); Blackburn v. Foltz, 828 F.2d 1177, may well have called after, possibly well after, the trial. And 1182–83 (6th Cir. 1987). Rather, the debate has been joined even if she left the message before trial, it requires few on the question whether the facts support the claim, an issue inferences to believe that Rost did not get the message, that the state courts resolved against Bigelow. whether Patridge left it on an answering machine or with Rost’s assistant. In view of the deferential standard of review In bringing this claim, Bigelow thus must overcome the that applies in this setting, the district court correctly rejected state court’s factual finding that “Pete Rost was not aware of Bigelow’s challenge to this factual finding and correctly Christine Patridge, Victor Timler, or Jay Loyzelle as rejected this ground for granting the writ. additional witnesses who would support Bigelow’s alibi defense.” JA 279. That is no small task. Under AEDPA, we B. presume that the state court’s factual findings are correct, and the petitioner bears the burden “of rebutting the presumption Bigelow next argues that Rost’s failure to investigate after of correctness by clear and convincing evidence.” 28 U.S.C. he became aware of the Greenlee evidence constituted § 2254(e)(1); see Mitchell v. Mason, 325 F.3d 732, 737–38 ineffective assistance of counsel. In the words of Bigelow’s (6th Cir. 2003). appellate brief:
Although the record reveals some support for his position, Once defense counsel learned of the Orkin witnesses, Bigelow has not rebutted this presumption of correctness. At he had an obligation to follow-up on the Orkin the state-court evidentiary hearing, Rost testified that Bigelow information and pursue this lead. From Orkin, defense did not tell him about the letter to the landscape company and counsel learned that Mr. Bigelow was on the Chasen that he did not know about these potential witnesses. property on June 17, 1993. From Orkin, defense counsel Bigelow, however, gave inconsistent testimony. He first knew that Mr. Chasen had been wrong about Mr. stated that he told Rost about the letters, and that he Bigelow being on the property on June 17, 1993. He remembered doing so because he had put Rost’s home and now had the tools to refresh Mr. Chasen’s memory with work phone numbers in the letter (presumably so Rost would this new information. Had defense counsel followed up expect any resulting calls). JA 824–25, 827. But on cross- on this information, Moonlighting’s presence at the examination, Bigelow admitted that he “didn’t tell Pete about Chasen home, which corroborated Orkin’s testimony, [the letters] because the [other] leads, like the people said could have been easily discovered. earlier, were no good that I gave to Pete Rost.” JA 836. Appellant’s Br. at 32. Bigelow raised the same argument in Patridge’s testimony that she left a message for Rost also the district court, Traverse to Respondent’s Return of Writ at does not undermine the state court’s finding. Her testimony 22–24, and in state court, Mem. for Pet’r, JA 238. In some at the hearing, as an initial matter, conflicted with her contrast to his challenge to the state court’s factual finding, affidavit in which she stated that she ignored the letter from Bigelow may prevail on this claim if he can show that the Bigelow after talking to Chasen, who discouraged her from state court’s application of Supreme Court precedent in this getting involved in the case. Patridge also could not area was “objectively unreasonable.” Wiggins, 123 S. Ct. at remember when she left the message, and given the proximity 2534–35. No. 02-4203 Bigelow v. Williams 15 16 Bigelow v. Williams No. 02-4203
Even though Bigelow raised this issue below and in state 1355, 1359 (4th Cir. 1992) (recognizing the significance of court, the district court did not address it—perhaps because alibi evidence in countering an eyewitness case assembled by the issue was obscured by the understandable focus in state the State). court and in the district court on whether Rost in fact knew about these other alibi witnesses. In response, the State asks Nor, at this point, can we readily agree with the State that us to affirm the judgment nonetheless, arguing that the claim Rost made “a reasonable decision that ma[de] [this] particular is meritless. We disagree. The claim is sufficiently serious investigation[] unnecessary.” Strickland, 466 U.S. at 691. To that it warrants consideration by the district court in the first our knowledge, the State has not even attempted to offer a instance and may even warrant an evidentiary hearing. Even strategic explanation for Rost’s failure to investigate further after looking at the issue through the prism of AEDPA, the once he learned of Greenlee’s evidence. The information State has not shown that Bigelow’s claim under Strickland provided by Greenlee did nothing to suggest that further prong one (the adequacy of counsel’s performance) or prong investigation would be futile or damaging to his client, but in two (prejudice to the defendant) deserves plenary rejection by point of fact suggested just the opposite. See Wiggins, 123 S. us. To the ends of facilitating the district court’s Ct. at 2537 (noting that the fact the lawyers “uncovered no consideration of these issues, we offer some explanation for evidence in their investigation to suggest that . . . further rejecting the State’s invitation to reject this claim at this stage investigation would have been fruitless” differentiated of the case. Wiggins’ case from those in which limited investigations were reasonable); see also Workman, 957 F.2d at 1345 The record regarding the adequacy of counsel’s (“Where counsel fails to investigate and interview promising investigation raises as many questions as answers. In spite of witnesses, and therefore has no reason to believe they would Rost’s initial lack of success in investigating Bigelow’s not be valuable in securing defendant’s release, counsel’s defense—or perhaps because of that lack of success—it is inaction constitutes negligence, not trial strategy.”) (quotation difficult on this record to understand why the surfacing of the and citation omitted); id. (noting that the case was not one Greenlee evidence did not prompt Rost to investigate further. where further investigation would be unlikely to bear fruit, Greenlee was the first person to come forward who could which could excuse a lawyer’s failure to investigate). corroborate Bigelow’s claim that he had been in Columbus, not Toledo, on the day (and at the time) of the crime. Rost’s Bigelow himself also did not supply any reasons why own actions, moreover, prove he understood the significance further inquiry would be unproductive. Instead, Greenlee’s of the evidence, as he put Greenlee on the stand virtually sight evidence amounted to the first evidentiary breakthrough in the unseen and without any further investigation. Indeed, Rost case, which suggested that (1) Bigelow was in Columbus on admitted on the morning of trial that he had not yet spoken to the date of the assault, (2) Bigelow at the very least was in Bigelow’s only alibi witness, namely Greenlee. JA 487. At Columbus on the day before or the day after the assault (since a minimum, it would seem that this evidentiary breakthrough Greenlee worked at the Chasen home for two consecutive would have prompted additional inquiry either by Rost or by days) and (3) Gary Chasen, the owner of the house where a publicly-funded investigator. Cf. Workman v. Tate, 957 Greenlee and Bigelow had worked, erred in telling Rost he F.2d 1339, 1345 (6th Cir. 1990) (concluding that “reasonable had no relevant information about Bigelow’s whereabouts on prudence” should have prompted the lawyer to recognize the June 17th. importance of potential witness testimony to the defense); Griffin v. Warden, Maryland Corr. Adjustment Ctr., 970 F.2d No. 02-4203 Bigelow v. Williams 17 18 Bigelow v. Williams No. 02-4203
Given that Greenlee’s testimony was the only evidence then prior to trial [defense counsel] was in possession of an FBI available for Bigelow’s defense and given that his testimony report that should have alerted him to the significance of [this would be vulnerable on cross-examination since he had been evidence] for the defense.”). at Chasen’s house for two days, Rost’s failure to do anything at this point remains unexplained, if not inexplicable. While Once Rost learned of Greenlee, had he taken even minimal Bigelow was “not entitled to an attorney who will leave not additional investigative steps—e.g., by contacting the the smallest stone unturned,” since he had “but one stone, it initially-reluctant Chasen and confronting him with the new should at least [have been] nudged.” Coleman v. Brown, 802 information about Greenlee, asking Chasen for records of the F.2d 1227, 1234 (10th Cir. 1986) (internal quotation, citation companies that helped with wedding preparations on the 17th, omitted). Rost appeared to have a host of options available to or talking to Chasen’s neighbors—he likely would have him for nudging that stone: he could have requested a uncovered the Moonlighting Landscape employees. The continuance in order to investigate this new lead in the case; same is true of a follow-up conversation with his client. Had he could have hired an investigator (with court funds); or at he discussed Orkin with Bigelow, he assuredly would have the very least he could have spent the four days before trial learned of Moonlighting, since Bigelow’s letters demonstrate following up on the information that Greenlee provided him. that he had already developed a link between the two But as in Wiggins, it appears on this record that Rost “chose companies and his whereabouts on June 17th. to abandon [his] investigation at an unreasonable juncture, making a fully informed decision” with respect to trial As to the second point—the adequacy of Rost’s strategy very difficult, if not impossible. 123 S. Ct. at 2538. investigative efforts before Greenlee came forward—we agree with the State that Rost’s performance surpassed the Like the state-court proceedings, the State’s contrary “objective standard of reasonableness” described in arguments suffer from a mistaken emphasis on (1) whether Strickland. But Rost’s commendable efforts before Greenlee Rost knew about the Moonlighting employees and (2) what arrived on the scene cannot shield from scrutiny his efforts Rost did earlier in the case rather than what Rost failed to do after this evidence surfaced. Wiggins demonstrates that it once he learned of Greenlee. As to the first point, it makes no does not invariably suffice that a lawyer make some efforts to difference whether Rost knew about these witnesses if a investigate a case; the proper inquiry is “whether the known reasonable investigation (after Greenlee came forward) would evidence would lead a reasonable attorney to investigate have uncovered their identities anyway. See Wiggins, 123 further.” 123 S. Ct. at 2538; see also, e.g., Montgomery v. S. Ct. at 2537 (noting that if counsel had performed a Petersen, 846 F.2d 407, 414 (7th Cir. 1988) (defense reasonable investigation, they likely would have discovered counsel’s failure to investigate a promising lead that would evidence of sexual abuse that could have been presented at have uncovered a disinterested alibi witness constituted sentencing hearing); Lindstadt v. Keane, 239 F.3d 191, ineffective assistance even though the lawyer had interviewed 200–01 (2d Cir. 2001) (determining that counsel was and put on the testimony of twelve other witnesses). Neither ineffective for failing to investigate the case, as a reasonable does the late arrival of the Greenlee evidence necessarily investigation undoubtedly would have uncovered the error in excuse Rost’s failure to act. See Bryant v. Scott, 28 F.3d the time frame of plaintiff’s accusations, which would have 1411, 1417 (5th Cir. 1994) (determining that counsel was led to alibi defense); Sims v. Livesay, 970 F.2d 1575, 1580 ineffective, because it was “incumbent upon [him] to at least (6th Cir. 1992) (“Although defense counsel might not have try to contact” a potential alibi witness that he learned about been told about [potentially exculpatory evidence] by Sims, seventy-two hours before the start of trial); cf. id. (noting that No. 02-4203 Bigelow v. Williams 19 20 Bigelow v. Williams No. 02-4203
even if the lawyer had learned of the alibi witnesses on the JA 778. All three witnesses identified Michael Bigelow, first day of trial, he “nevertheless should have contacted the sitting before them at the evidentiary hearing, as the man they witnesses and made his record to the trial court as to the had seen and interacted with at the Chasen home on the 17th. significance of the alibi and the fact that it was newly JA 754–55, 781–84, 804. Timler initially testified that he was discovered”) (quotation and citation omitted). “80%” sure Bigelow was at the Chasen home that day, but then said he was “100%” certain it was Bigelow. JA 783–84. In the end, given what Rost learned from Greenlee four Patridge’s in-court identification of Bigelow went days before trial (that Bigelow was at the Chasen home on the unchallenged by the State, and she stated in her affidavit that day of the attack) and given what Rost knew about other alibi Chasen “introduced” Bigelow (presumably by name). evidence up to that point (nothing), his apparent decision to JA 105B. Loyzelle identified Bigelow in court as well, do no further investigation deserves fresh consideration by the JA 804, and his affidavit noted that Chasen had addressed district court. Thus far, the State has given no indication that Bigelow on the 17th as “Mike,” JA 107. All three witnesses, Rost did any further investigation after hearing from Greenlee moreover, recalled idiosyncratic details about their encounters and has offered no reasoned explanation—strategic or with Bigelow (i.e., his inquisitiveness, the fact that he was otherwise—why Rost should not have investigated further at pruning hedges with a pair of scissors and that he cut his hand that point. To the ends of answering these questions (and and asked for a band aid), adding credence to their memories potentially developing a record in support of those answers), of seeing him. we ask the district court to take an initial look at the adequacy of Bigelow’s counsel in these respects. Loyzelle testified that he saw Bigelow at various points both in the morning and the afternoon of June 17th, JA 805, Nor, on this record, can one say that any errors in Rost’s 811, making it impossible for Bigelow to have slipped away investigation were not prejudicial. Although we leave the to make the six-hour round-trip to Toledo and back. This question open for the district court to decide, it seems on this testimony, if believed, would have precluded the possibility record that Rost would have uncovered the Moonlighting that Bigelow attacked Schrier at midday on the 17th. witnesses had he investigated further after learning of Greenlee. And Rost acknowledges that he would have All three witnesses were completely disinterested, as none subpoenaed the three witnesses to testify at trial if he had of them had any previous connection to Bigelow. JA 753–54, known about them. JA 747. 774–75, 802. In fact, Timler testified that it was quite costly for the three to attend the evidentiary hearing in view of the The key question is whether the testimony of the money they could have been earning on another landscaping Moonlighting employees would have made a persuasive case job. JA 780. that Bigelow was at the Chasen home in Columbus on June 17th, 1993. We leave this issue for the district court to This evidence plainly would have bolstered Bigelow’s consider in the first instance because, contrary to the State’s defense and was anything but cumulative. See Washington v. contention, its resolution is not obvious. At the state court Smith, 219 F.3d 620, 634 (7th Cir. 2000); Montgomery, 846 evidentiary hearing, Moonlighting’s records showed that F.2d at 413 (introduction of alibi witness would not have been Patridge, Timler and Loyzelle all worked at the Chasen home cumulative despite testimony by twelve other witnesses on June 17th, JA 105B, 107, 753, 795–96, and at least one of where the new witness did not bear the same weakness as the them (Timler) did not work at the property on any other day, others). Bigelow had just one witness at trial (Greenlee) who No. 02-4203 Bigelow v. Williams 21 22 Bigelow v. Williams No. 02-4203
could support his alibi defense. Doubtless, three other The state trial court’s conclusion to the contrary does not witnesses, who like Greenlee did not previously know alter this analysis. It described the Moonlighting witnesses’ Bigelow and accordingly had no axe to grind in testifying on testimony as “vague and unconvincing,” pointing to his behalf, would have aided the defense. This testimony also inconsistencies between their affidavits and their hearing would have shored up the weaknesses in Greenlee’s testimony. The inconsistencies, however, are just three, and testimony—that he had worked at Chasen’s house over a they are insignificant to boot. They were: (1) typographical period of two days, which cast doubt on his certainty as to the mistakes as to the year that Bigelow was at the Chasen home date that he actually witnessed Bigelow, and that he had been (which were corrected and initialed by the notary public); (2) unable to select Bigelow from a photo lineup, which cast Patridge’s testimony that she contacted Rost versus her doubt on his in-court identification. affidavit statement that she ignored his letter (which relates to the separate question whether Rost knew about these The testimony of the Moonlighting witnesses also would witnesses before trial); and (3) Loyzelle’s testimony that he have facilitated Bigelow’s efforts to undermine the State’s left the property between 5:00 p.m. and 5:30 p.m., not at 4:15 case. The State presented two eyewitnesses, both of whom p.m. as he indicated in the affidavit (which would not have identified Bigelow in court, but did not introduce any forensic made a difference as to whether Bigelow committed a midday or other evidence in the case. Schrier, for one, testified that attack). None of the inconsistencies undermine the pivotal she had a limited opportunity to view her attacker. Because facts established by the affidavits: that Patridge checked the assailant remained behind her and she obeyed his Moonlighting’s records and verified that they were at instructions not to turn around, JA 498–501, she had two Chasen’s on the 17th; that they saw Bigelow there both in the opportunities to view his face: (1) when he told her to light morning and in the afternoon; and that Chasen had introduced his cigarette; and (2) when she turned around to face him just Bigelow to Patridge and referred to him as “Mike” within before kicking him and escaping. JA 510, 525, 528, 530. earshot of Loyzelle. Each of these statements was consistent Both opportunities, however, were fleeting. See JA 511, with the evidentiary hearing testimony of the witnesses. 534–35. There also was a disparity between the exacting details about her attacker’s face that she supplied at trial and In the final analysis, the addition of the three Moonlighting her initial description of him. At trial, she testified about his witnesses would have presented the jury with (1) four hairline, Adam’s apple, cheekbones, eyes and lips. But in the witnesses on the one hand who could identify Bigelow in original description she gave to the police, she focused on the court as the man they saw in Columbus on June 17th and (2) attacker’s clothing, height and age. two witnesses on the other hand who could identify him in court as the assailant in one instance and as the man running The testimony of the other eyewitness, Thomas Mermer, from the crime scene in the other. In a case involving was even weaker. He admitted (1) that he saw the assailant identification and identification alone, it is not easy to only from the back and side at a distance running away from imagine a defense lawyer who would pass on the chance to the scene of the crime, JA 628, and (2) that police never bolster the defense with evidence of this sort—particularly showed him a lineup or photo display, JA 629. Mermer first since eyewitness evidence is “precisely the sort of evidence identified Bigelow as the defendant after seeing Bigelow’s that an alibi defense refutes best,” Griffin, 970 F.2d at 1359. face on television many months after the incident, JA 629–30, a classically suggestive setting because Bigelow was giving But because these issues were not addressed by the district an interview to local media about his impending trial. court and because some of them may benefit from additional No. 02-4203 Bigelow v. Williams 23
evidence, we remand the case to the district court to determine whether Bigelow has shown that the writ should be granted on this alternative theory of ineffective assistance of counsel. Consideration of this theory will require the district court to focus on two questions that we have addressed but ultimately leave open for consideration on remand: (1) Was it objectively unreasonable for Rost to fail to conduct further investigation after learning of the Orkin employees?; and (2) If Rost’s representation was ineffective, was it likely the three alibi witnesses would have been identified had he conducted a reasonable investigation? III. For the foregoing reasons, we vacate the judgment and remand the case to the district court for a determination whether the writ should be granted.