Stewart Barnes v. FRANK ELO, Warden

*The Honorable Adrian G. Duplantier, Senior United States District
Judge for the Eastern District of Louisiana, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0279P (6th Cir.)
File Name: 03a0279p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
STEWART BARNES,
Petitioner-Appellant,
v.
FRANK ELO, Warden,
Respondent-Appellee.
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No. 01-2026
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 97-60150—George C. Steeh, District Judge.
Argued: March 27, 2003
Decided and Filed: August 8, 2003
Before: MERRITT and BATCHELDER, Circuit Judges;
DUPLANTIER, Senior District Judge.*
_________________
COUNSEL
ARGUED: Kenneth P. Tableman, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for
2 Barnes v. Elo No. 01-2026
Appellant. Raina I. Korbakis, STATE OF MICHIGAN,
DEPARTMENT OF ATTORNEY GENERAL, HABEAS
CORPUS DIVISION, Lansing, Michigan, for Appellee.
ON BRIEF: Kenneth P. Tableman, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for
Appellant. Raina I. Korbakis, STATE OF MICHIGAN,
DEPARTMENT OF ATTORNEY GENERAL, HABEAS
CORPUS DIVISION, Lansing, Michigan, for Appellee.
DUPLANTIER, D. J., delivered the opinion of the court, in
which BATCHELDER, J., joined. MERRITT, J. (pp. 14-17),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
DUPLANTIER, Senior District Judge. After an evidentiary
hearing following remand by this court, the district court
dismissed the petition of Stewart Barnes for habeas corpus
relief pursuant to 28 U.S.C. §2254. Barnes appeals, urging
that his convictions must be vacated because his trial counsel
rendered ineffective assistance with respect to his state court
convictions. For the following reasons, we AFFIRM.
Petitioner is a state court prisoner who, following a bench
trial, was convicted of one count each of breaking and
entering with intent to commit criminal sexual conduct,
assault with intent to commit second degree criminal sexual
conduct, and felonious assault. The trial judge sentenced
petitioner to three concurrent sentences: six to fifteen (15)
years on the breaking and entering count, three to five years
on the assault with intent to commit second degree criminal
sexual conduct count, and two and a half to four years on the
felonious assault count.

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No. 01-2026 Barnes v. Elo 3
RELEVANT FACTS
The victim, who was 12 at the time of the offense, testified
that she went to bed at 3:30 a.m. on July 29, 1990; she was
sharing a bed with a younger sister and brother. The victim
awoke when she felt a man kissing the side of her face. She
struggled with her attacker; during the struggle he inflicted
a serious cut on each of her arms. When the victim’s sister
began screaming, the attacker left the room. The victim saw
"[h]im run down the stairs," "limping on one leg"; he "ran
out" the front door.
Almost immediately, the police developed a composite
"picture" of the assailant from a description by the victim.
Within several days of the attack, the victim advised the
investigating officer that her assailant had a limp. During the
ensuing investigation, the victim viewed a large number of
"mugshots," a photo line-up, and a live line-up; she did not
make any identifications during those sessions. No
photographs of petitioner were among those shown to the
victim by the police, nor did petitioner participate in the live
lineup at that time. About six months after the attack, while
complainant was at a bus stop, she saw petitioner walking in
the area and recognized him as the man who attacked her. On
the next day an investigating officer established surveillance
of the bus stop. The victim identified the suspect by a hand
signal, and the investigating officer arrested Barnes.
Thereafter, the victim viewed a line-up in which petitioner
participated; the victim identified petitioner as her attacker.
At trial the parties stipulated that Barnes suffers from post-
polio syndrome and wears a brace on his leg. No additional
medical evidence was presented at trial.
In post-conviction proceedings before the state court and
the federal district court, petitioner asserted several grounds
for habeas relief. In this appeal, he raises only one issue: that
his trial counsel rendered ineffective assistance by failing to
4 Barnes v. Elo No. 01-2026
call any medical witnesses to testify concerning his physical
limitations.
PROCEDURAL HISTORY
Petitioner’s attempts in state court to challenge his
convictions are summarized in our prior opinion, Barnes v.
Elo, 231 F.3d 1025, 1027-28 (6th Cir. 2000). In the state
court proceedings, in support of his contention that trial
counsel rendered ineffective assistance by failing to call
medical witnesses to testify concerning his physical
condition, petitioner submitted an affidavit by Dr. William
Waring, his treating physician. In the affidavit Dr. Waring
stated that "he had not been contacted by Barnes’s trial
counsel, that he would have been available to testify, and that
he would have testified that Barnes was physically unable to
run down the stairs and out the door as complainant testified
her assailant had done." Id. at 1027.
After failing to obtain relief in the state courts, petitioner
filed a federal petition for post-conviction relief, asserting
that his trial counsel rendered ineffective assistance and that
he was denied due process as a result of prosecutorial
misconduct. The district judge denied relief on all grounds
and granted petitioner a certificate of appealability limited to
the contention of ineffective assistance of counsel.
On appeal, this court ordered the matter remanded for an
evidentiary hearing on the issue of the competence of trial
counsel, concluding that "[i]t is unclear from the record
whether or to what extent trial counsel investigated Barnes’s
medical condition, and why he failed to contact Dr. Waring.
Absent an evidentiary hearing and clear findings of fact, it is
impossible to determine whether trial counsel’s failure to
investigate and call Dr. Waring was sound trial strategy."
Barnes v. Elo, 231 F.3d at 1029.

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No. 01-2026 Barnes v. Elo 5
THE EVIDENTIARY HEARING
Upon remand the district judge conducted an extensive
evidentiary hearing, which included testimony regarding trial
counsel’s failure to call medical witnesses. Marvin Barnett,
Barnes’s trial counsel, testified at length. Despite a diligent
search, Barnett was unable to locate his file concerning the
trial, which had occurred more than nine years before the
hearing. Barnett admitted that he was unfamiliar with the
specifics of post-polio syndrome but stated that he knew
petitioner had a physical disability, walked with braces, and
walked with a "significant gait." Prior to the trial Barnett
reviewed Dr. Waring’s medical records, which petitioner
provided to him. Barnett also testified that prior to trial he
spoke with someone knowledgeable about petitioner’s
medical condition; however, he was unable to recall with
whom he spoke. Barnett did not dispute Dr. Waring’s
testimony that Barnett had not spoken to him.
Barnett testified that he had recommended that the defense
pursue a mis-identification theory of defense. Additionally,
he stated that the medical condition was important and that it
was part of the defense. He testified:
I advised [petitioner] that it would be in his best interest
to allow the parties to stipulate to his medical condition
without calling witnesses to testify as to his medical
condition because, my recollection was, that those same
medical records which indicated he had a pre-existing
medical condition, also indicated that [at] some point in
his life that he was a house painter or something and he
played basketball, not withstanding [sic] the fact that he
had a gait in his walk, that he does move around, so we
were trying to avoid all the negligence [sic] inferences
that could be drawn from his medical records while at the
same time preserving for the trier of fact all positive
inferences that may have been drawn from his medical
records.
6 Barnes v. Elo No. 01-2026
. . . .
[B]ased on my review of his medical records there
was damaging information in this record that would
support some of the allegations that the complainant
had made. The eleven year old girl had indicated
that the person ran with a limp, and that although
there was no question or need to establish that he
could not run like a normal person, there were things
in his record and his past employment that defeated
our argument, and so it wasn’t as though we simply
ignored medical witnesses but as an experienced
attorney I was trying to give the Defendant the
benefit of everything positive in the record without
the negatives associated with other things that were
in his record.
Barnett opined that the trial judge "certainly understood,
regardless of the specific nature of his condition, that it
certainly mitigated against him running in the matter [sic] as
it appeared and the complainant testified to." Barnett
testified that petitioner agreed to the entry of the stipulation
as to his medical condition in lieu of live testimony.
On cross-examination Barnett provided the following
additional detail regarding his concern about the information
contained in the medical record.
[B]ut we’ve got an allegation that somebody is climbing
into a house and the idea that somebody at any point was
a house painter concerned me, and I also remember there
being something in there about him being able to play
basketball. Now, I don’t suspect he could have, you
know, pushed the ball down the floor or pushed through
the lane and did a slam dunk, but the mere fact that you
can even play basketball at any point mitigates against
not being able to get down some flights of stairs.

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No. 01-2026 Barnes v. Elo 7
Barnett was concerned that a medical witness would testify on
cross-examination that "[petitioner] had some mobility and
that the witness would have to testify that he could move
around quickly if he had to, and that he moved with a limp.
My concern would be that the witness would establish exactly
the opposite that we do not want to establish and undermine
whatever mileage we thought we were going to get out of the
stipulation."
Petitioner introduced Dr. Waring’s deposition into evidence
at the evidentiary hearing. r. Waring testified that petitioner
had post-polio syndrome, would have had difficulty going
down a stairway, and would have "a very herky jerky sort of
motion going down the stairs." He conceded, however, that
someone who lacked medical knowledge could describe
petitioner’s abnormal movement going down the stairs as a
"limp." In commenting on the statement in his affidavit that
"Barnes was physically unable to run down the stairs and out
the door as complainant testified her assailant had done, " Dr.
Waring testified that in making that statement he assumed
that the victim’s reference to "run" meant a fast run. Dr.
Waring testified that petitioner could not "run" with both feet
off the ground at the same time and opined that petitioner
could not physically run "anywhere close to normal gait,
normal gait speed." Dr. Waring testified that petitioner’s
ability to move quickly was impaired and estimated that
petitioner "moved a third or a fourth of normal running speed
with the defects." However, he acknowledged that petitioner
could move faster than his normal walking speed if he so
desired.
At the evidentiary hearing on remand, petitioner testified
that he could not run with both feet off the ground. He stated
that Barnett had advised him that medical witnesses would
testify during the trial. Petitioner also testified that he
exhibited his leg to the state judge during his trial, and that
the trial judge observed his movements in the courtroom.
8 Barnes v. Elo No. 01-2026
The district judge credited Barnett’s testimony that he
concluded (and so advised petitioner) that the best course of
action was to enter into a stipulation concerning petitioner’s
medical condition as well as Barnett’s testimony that "he
believed the trial judge understood that the condition
mitigated against running." We accord considerable
deference to the credibility determinations of the district
judge. See United States v. Navarro-Camacho, 186 F.3d 701,
705 (6th Cir. 1999) (citing United States v. Cooke, 915 F.2d
250, 252 (6th Cir. 1990)). The district judge concluded that
the medical records and the potential medical testimony
"included damaging information concerning defendant’s
capabilities and was less than compelling." He concluded that
trial’s counsel’s performance was not deficient and that
petitioner sustained no significant prejudice as a result of trial
counsel’s "decisions concerning medical evidence."
STANDARD OF REVIEW
In reviewing the denial of a petition for post-conviction
relief under 28 U.S.C. §2254, we review the legal conclusions
de novo; findings of fact are reviewed for clear error.
Matthews v. Abramajtys, 319 F.3d 780, 787 (6th Cir. 2003).
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996,
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
which amended 28 U.S.C. §2254, governs this federal habeas
corpus review of a state court conviction.
Title 28 U.S.C. §2254(d)(1)-(2) mandates that claims
adjudicated on the merits in state court proceedings, such as
petitioner’s claim of ineffective assistance of counsel, are
subject to the following standards of review:
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that

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No. 01-2026 Barnes v. Elo 9
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A claim of ineffective assistance of counsel presents a
mixed question of fact and law; we therefore apply the
"unreasonable application" prong of §2254(d)(1). Hunt v.
Mitchell, 261 F.3d 575, 580 (6th Cir. 2001). A state court
unreasonably applies Supreme Court precedent "if the state
court identifies the correct governing legal rule . . . but
unreasonably applies it to the facts of the particular prisoner’s
case." Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct.
1495, 1521 (2000). However, a federal court may not grant
a writ of habeas corpus "simply because that court concludes
in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be
unreasonable." Id. at 411, 120 S.Ct. at 1522.
Typically, in reviewing a state court’s denial of a state
prisoner’s request for post-conviction relief we accord
deference to the state court’s decision.. 28 U.S.C. §2254d.
However, as noted in our prior opinion (Barnes v. Elo, 231
F.3d at 1027-28), in ruling on petitioner’s motion to remand
for an evidentiary hearing and on the merits of the ineffective
assistance claim related to the failure to call medical
witnesses, the Michigan state court of appeals apparently
failed to consider Dr. Waring’s affidavit, which had been filed
by petitioner. Indeed, in considering the merits of that claim
the state court relied upon what it perceived to be a failure on
the part of petitioner to file the affidavit which he had in fact
10 Barnes v. Elo No. 01-2026
filed. People v. Barnes, No. 153885 (Mich. Ct. App. March
2, 1995). In these unusual circumstances, a federal court has
no alternative but to conduct an independent review of the
claim, because there is no foundation in the state court
proceedings for AEDPA deference. See McKenzie v. Smith,
326 F.3d 721, 727 (6th Cir. 2003).
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), the Supreme Court established a two
prong test for evaluating claims of ineffective assistance of
counsel: a defendant seeking relief must demonstrate that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense. With regard to the
performance prong, "the defendant must show that counsel’s
representation fell below an objective standard of
reasonableness." Id. at 687- 88, 104 S.Ct. at 2064. It is well
established that "[j]udicial scrutiny of counsel’s performance
must be highly deferential." Id. at 689, 104 S.Ct. at 2065.
"A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time." Id. There is a strong
presumption that an attorney’s performance "falls within the
wide range of reasonable professional assistance." Id., 104
S.Ct. at 2065. "[T]he defendant must overcome the
presumption that, . . . the challenged action might be
considered to be sound trial strategy." Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed.2d
83 (1955)).
In order to satisfy the prejudice requirement, "[t]he
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome." Strickland v. Washington, 466 U.S. at 694,
104 S.Ct. at 2068. If the defendant makes an insufficient
showing on either component of the ineffective assistance of

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No. 01-2026 Barnes v. Elo 11
counsel inquiry, it is not necessary to examine the remaining
prong of the test. Strickland v. Washington, 466 U.S. at 697,
104 S.Ct. 2069.
FAILURE TO CALL MEDICAL WITNESSES
Mr. Barnett’s strategic decision to enter into the stipulation
concerning petitioner’s medical condition rather than call
medical witnesses was not deficient. Dr. Waring’s testimony
does not establish that petitioner could not have entered the
house, assaulted the victim, and escaped in the manner
described by the victim. Rather, his testimony simply
negates the possibility that petitioner could "run" normally,
i.e., with both feet off the ground at the same time, or that he
could "run" at a speed approximating that of someone who
could "run" normally. The significance of that testimony is
minimal. There was no testimony at the trial that the attacker
"ran" like a normal person. To the contrary, the victim
testified that the man "was limping on one leg" as he "ran"
down the stairs. Dr. Waring also testified that an individual
lacking medical knowledge could describe petitioner’s gait
going down the stairs as a "limp."
Petitioner focuses too narrowly on the victim’s use of the
word "run." "Run" is an imprecise word subject to numerous
personal interpretations. It is reasonable to conclude that the
young victim’s description of her attacker’s movements
would not be precise. She saw him for only a brief period of
time and under extremely stressful circumstances.
Additionally, there were sound tactical reasons not to call
Dr. Waring as a witness. The personal history provided to Dr.
Waring indicated that petitioner had played basketball and
that he had previously worked as a house painter.
Petitioner’s past participation in those activities would
undoubtedly have undercut an inference that his physical
limitations would have prevented him from climbing through
a window to enter the victim’s house and fleeing down the
stairs. Evaluating counsel’s trial strategy based on his
12 Barnes v. Elo No. 01-2026
perspective at the time of trial, as Strickland requires us to do,
we cannot conclude that counsel’s strategy was unreasonable.
Barnett’s decision to rely on the stipulation rather than call a
medical witness was not deficient.
Having concluded that trial counsel’s failure to call a
medical witness did not constitute deficient performance, we
need not address the prejudice prong of Strickland.
Nevertheless, we note that in any event petitioner was not
prejudiced by the lack of a medical witness. The victim
positively identified petitioner as her attacker. The trial judge
characterized the victim as "a thoughtful, honest, careful
witness" and credited her identification of petitioner. More
specifically, the trial judge, acutely aware of the "overall
dangers inherent in eyewitness identification" noted that the
victim’s description of her assailant "fits the defendant to a
tee [sic]." In characterizing the composite of the assailant
produced by police based on the victim’s description the trial
judge stated "it’s not only a likeness, it is the defendant . . .
There are striking similarities and it’s the closest match of any
composite I’ve ever seen."
Additionally, the following statement by the trial judge
makes it clear that despite the lack of a medical witness, the
judge was aware of petitioner’s disability and of counsel’s
argument that petitioner was not able to perform the activities
described by the prosecution’s witnesses.
[I]t’s the defense that’s offered as well and the
suggestion that because of the physical condition of the
defendant it was impossible for him to commit the crime.
But the interesting thing about that is that the
complainant herself in reporting to the police as her
assailant was leaving, she saw the limp. That’s part of
her description as well to the police.
Okay, I mean, he [is] trying to say hey, she’s wrong and
that’s she got the wrong guy, and look, she says I ran.
But it’s not only that she says he ran out of the house

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No. 01-2026 Barnes v. Elo 13
after she was finally able to scream. She reports the limp
to the police as part of the description she gives to the
police, a description of which fit the defendant to a T,
and she identifies the defendant as the person.
The fact-finder had the opportunity to observe petitioner’s
leg and brace as well as his ability to move. Petitioner’s
physical disability was obvious. The trial judge, having
observed both the victim and the petitioner, was in the best
position to evaluate the victim’s testimony that her attacker
"ran" down the stairs and determine whether petitioner was
capable of that activity. Expert testimony concerning post-
polio syndrome and the resulting limitations on petitioner’s
physical abilities would have shed little light on the relevant
issue, i.e. whether petitioner, in escaping the scene of a
serious crime, could hurriedly negotiate his way down a set of
stairs and exit the house. The medical testimony would also
have included the fact that petitioner had engaged in activities
such as house painting and playing basketball. There is no
reasonable likelihood that such testimony would have created
a reasonable doubt in the mind of the trial judge that
petitioner could not have been the perpetrator because he
could not have "run" from the scene, as described by a
frightened twelve year old girl who was bleeding profusely
from the severe cuts inflicted upon her. There is no
reasonable probability that but for counsel’s failure to call a
medical witness the result of the trial would have been
different.
CONCLUSION
The judgment of the district court dismissing petitioner’s
motion for post-conviction relief pursuant to 28 U.S.C. §2254
is AFFIRMED.
14 Barnes v. Elo No. 01-2026
______________
DISSENT
______________
MERRITT, Circuit Judge, dissenting. Counsel has a duty
to undertake a reasonable investigation into his client’s case
and background before making strategic legal decisions to
give up a defense. The failure to investigate and present
available evidence about Barnes’ medical condition, which
requires that Barnes wear a leg brace and results in an
abnormal gait, is particularly egregious in this case. The
defense in this case was primarily mistaken identity; and,
given all the evidence, it seems doubtful that Barnes was the
perpetrator.
Barnes suffers from postpolio syndrome, a recently-
identified condition affecting people after they have recovered
from polio myelitis. The condition results in fatigue and
muscle weakness, both in the parts of the body affected by the
polio and sometimes in other muscle groups as well. As a
result of this condition, Barnes wears a brace on his right leg,
which he was wearing when arrested. The brace keeps his leg
straight and makes him walk in a type of swinging gait that
involves his whole body. To bend his knee, Barnes must
unlock the brace. He describes his condition as not a limp,
but a “paralytic abnormal gait.” Dr. Waring, one of Barnes’
physicians, explained in his deposition for the evidentiary
hearing in federal court that Barnes’ gait is “grossly
abnormal” and he leans excessively from side to side when he
moves. Waring Dep. J.A. at 614-18.
Barnes argues that he was denied effective assistance of
counsel because trial counsel failed adequately to investigate
the medical facts about postpolio syndrome and its effect on
Barnes’ physical abilities. Barnes’ counsel admitted at the
evidentiary hearing that he knew very little about Barnes’
postpolio syndrome and yet he failed to investigate Barnes’
medical records, talk to Barnes’ doctor about the condition or

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No. 01-2026 Barnes v. Elo 15
otherwise inform himself generally about the condition and its
specific effect on Barnes. He could not describe postpolio
syndrome; he had not gone over the medical records with a
medical professional who could explain them to him; and he
admitted that he talked very little with Barnes about the effect
of the condition on Barnes’ physical abilities. J.A. at 524-35.
Barnes’ counsel testified that by making the stipulation to the
postpolio syndrome, he believed he was getting the “benefits”
of the condition without dwelling on the “negatives” (as he
called them) of the record. It is doubtful that the judge even
understood what “postpolio syndrome” was. It was never
explained on the record. Without knowing about the
condition and its effects on Barnes, counsel simply could not
make a reasoned strategic decision about whether or how to
use the information at trial.
Counsel failed to obtain an opinion from any medical
professional before trial on whether Barnes was able to
perform the physical acts necessary to break into the house
through a small basement window, the point of entry
according to police testimony. Nor was there any medical
proof about how Barnes was able to run away from the scene
in the manner described by the victim. Without this
knowledge, or at least an opinion, counsel could not make a
competent strategic decision on whether the information
would have been helpful. As a result, the only evidence in the
record concerning the condition is a stipulation that defendant
wears a brace and that he suffers from postpolio syndrome.
There is no attempt to explain the condition or its effects on
Barnes in the record. Although counsel argues that he made
a strategic decision that the stipulation would be the best way
to minimize the “negatives” concerning Barnes’ physical
condition, including discussion of some of Barnes’ past
physical activities, counsel could not have made an informed
strategic decision without making further inquiry into
available information.
Had Barnes’ counsel talked to Dr. Waring, he would have
discovered that it would have been difficult, if not impossible,
16 Barnes v. Elo No. 01-2026
for Barnes physically to commit the crime as described in the
testimony. For example, the victim described the intruder as
“running away” and she testified that she saw him “run”
down the stairs. The victim’s mother also testified that she
didn’t get a look at him or catch him because he was “so
fast.” Additionally, in the initial report given to the police,
the victim did not mention a limp, altered gait or leg brace,
despite the fact that the medical evidence shows that Barnes’
gait is noticeably awkward. If the victim watched her
assailant retreat down the hallway, go down the stairs and out
the door as she says she did, the extremely abnormal gait or
limp should have been obvious and noteworthy. Presentation
of medical evidence that Barnes could not have “run away” as
described or that his gait would have been very distinctive
would have cast doubt on the victim’s testimony.
Investigating this situation thoroughly was essential to a
constitutionally adequate defense. That did not happen.
To establish a violation of the Sixth Amendment right to
effective assistance of counsel, a defendant must demonstrate
that counsel’s representation fell below “an objective standard
of reasonableness” and that the defendant was prejudiced by
the ineffective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The defendant “must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694. Strickland specifically addresses the
duty to investigate all aspects of a client’s case, stating that
strategic decisions can occur only after counsel makes a
“thorough investigation of law and facts relevant to plausible
options.” Id. at 690. A decision not to investigate cannot be
deemed reasonable it if is uninformed. Id. at 691. In short,
“counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular
investigations unnecessary.” The holding in Strickland
concerning counsel’s duty to investigate a defendant’s
background was reaffirmed in the Supreme Court’s recent

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No. 01-2026 Barnes v. Elo 17
decision in Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003),
where the Court explained that Strickland “defined the
deference owed such strategic judgments in terms of the
adequacy of the investigations supporting those judgments”
and emphasized that the focus in failure to investigate claims
is “whether the investigation supporting counsel’s decision
. . . was itself reasonable.” Id. This kind of investigation
simply did not occur.
The second prong under Strickland requires us to examine
whether counsel’s deficient performance prejudiced
defendant. A defendant must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. A
defendant must demonstrate that “counsel’s errors were
serious enough to deprive [him] of a proceeding the result of
which was reliable.” Glenn v. Tate, 71 F.3d 1204, 1210 (6th
Cir. 1995). Barnes was clearly prejudiced by his counsel’s
failure to investigate his medical condition and present
evidence of that condition when it would have likely raised a
reasonable doubt about Barnes’ guilt. For the foregoing
reasons, I respectfully dissent.

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