Michael Bigelow v. JESSE WILLIAMS, Warden

*The Honorab le John Feikens, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0132P (6th Cir.)
File Name: 04a0132p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________
MICHAEL BIGELOW,
Petitioner-Appellant,
v.
JESSE WILLIAMS, Warden,
Respondent-Appellee.
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No. 02-4203
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 01-07626—John W. Potter, District Judge.
Argued: January 30, 2004
Decided and Filed: May 10, 2004
Before: MERRITT and SUTTON, Circuit Judges;
FEIKENS, District Judge.*
_________________
COUNSEL
ARGUED: Jill E. Stone, PUBLIC DEFENDER’S OFFICE,
Columbus, Ohio, for Appellant. Diane Mallory, OFFICE OF
2 Bigelow v. Williams No. 02-4203
THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellee. ON BRIEF: Jill E. Stone, PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
Diane Mallory, OFFICE OF THE ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. A state-court jury convicted
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
present, Bigelow has insisted that he did not commit the
crime and indeed could not have committed the crime because
he was residing and working 150 miles away in Columbus,
Ohio on the day of the assault. At each stage in the
proceedings—in state court, in his state post-conviction
proceedings, and now in his federal habeas corpus
proceedings—Bigelow also has claimed that his court-
appointed lawyer, Peter Rost, did not adequately investigate
this alibi defense, most notably by failing to identify three
witnesses who could have placed Bigelow in Columbus on
the day of the assault.
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
fully communicate all possible leads to Rost and apparently
did not inform him about his own letter-writing investigation
efforts from prison; and Rost in fact did pursue many leads,
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.

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No. 02-4203 Bigelow v. Williams 3
On the fourth day before the commencement of the criminal
trial, however, Vernon Greenlee, an employee of Orkin Pest
Control, called Rost and told him that he could place Bigelow
in Columbus on the day of the crime. (Greenlee’s call was
prompted by a letter that Bigelow had written to Orkin from
prison.) Realizing the significance of this testimony, Rost
subpoenaed Greenlee and one other Orkin employee to testify
at the trial. The testimony was helpful because Greenlee
identified Bigelow in court as the man he saw at the home of
Gary Chasen in Columbus on June 17th, the day of the
assault, but the testimony was vulnerable to impeachment
because Greenlee worked at the house at issue on two
consecutive days. In convicting Bigelow, the jury apparently
was swayed by the two primary pieces of evidence submitted
by the State—the testimony of the victim who was able to
pick Bigelow out of a lineup (and identify him at trial) based
on brief glances at him during the assault and the testimony
of an individual who claimed to see Bigelow (from the back
and side) running across a field away from the crime scene.
In rejecting Bigelow’s ineffective-assistance-of-counsel
claim, the state courts and federal district court focused
primarily on whether an alibi witness contacted Rost during
the week before trial and whether Rost failed to return the
phone call. The state courts found as a matter of fact that
Rost did not know about any other alibi witnesses before the
trial. The district court properly respected this finding in
view of the competing evidence on the issue and the rigorous
requirements for rejecting such a finding under The
Antiterrorism and Effective Death Penalty Act (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
The problem with the district court’s decision is that it did
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
4 Bigelow v. Williams No. 02-4203
re-commit himself to finding additional alibi witnesses in the
Columbus area—whether by asking for a postponement of the
trial, by hiring an investigator or by traveling to Columbus
himself to talk firsthand to the other people that might have
been working at the same house as Greenlee (and apparently
Bigelow) on June 17th. Had Rost pursued any of these
options, he likely would have identified three other witnesses,
all of whom have since come forward to testify that they saw
Bigelow in Columbus on the day of the attack and none of
whom had a prior relationship with Bigelow (or any other
reason to be untruthful).
Whether Rost’s failure to take additional action after being
contacted by Greenlee constituted ineffective assistance
deserves consideration by the district court in the first
instance and possibly an evidentiary hearing. As the United
States Supreme Court first indicated in Strickland v.
Washington, 466 U.S. 668 (1984), and reaffirmed just
recently in Wiggins v. Smith, 123 S. Ct. 2527 (2003), the
respect that attorneys’ strategic decisions in a criminal trial
will receive is proportionate to the extent of the investigation
they in fact conducted. See Strickland, 466 U.S. at 691
(“[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation.”). As the case comes to us, there is no
indication that Rost performed any further investigation after
Greenlee came forward—even though his alibi testimony was
sufficiently important that Rost put him on the stand virtually
sight unseen. For these reasons and those elaborated below,
we vacate the judgment of the district court, remand the case
to the district court and allow it to consider in the first
instance whether to grant the writ on the basis of this claim.

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No. 02-4203 Bigelow v. Williams 5
I.
A. The Criminal Trial
On the morning of June 17, 1993, Charlotte Schrier, a real
estate agent, was sitting in her car behind an apartment
complex in Toledo, Ohio, waiting for her next appointment.
At some point she felt a tap on her left shoulder, and she
heard a man’s voice telling her not to move as he entered the
back seat of her car. Although she could detect his presence
in the back seat, she obeyed his commands to face forward
and not turn around.
At some point, the man instructed her to start the car and
proceed out of the complex. After Schrier drove a short
distance, he asked her to pull over and light his cigarette.
Schrier did as asked, then resumed driving. While she was
driving, the man threatened her multiple times, saying he
wanted to injure her physically and see her bleed.
At some point, the attacker asked Schrier to pull over again.
This time, he got out of the car, opened her door, and pulled
her out by the hair. He first instructed her to lean into the
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.
His hand suddenly swung down in front of her face, and she
noticed that he was holding a razor blade. Pressing the blade
into her hand, he told her that he wanted her to cut her own
arm. When she hesitated, his arm swung again and he either
cut or forced Charlotte to cut her arm with the blade. She
then turned around to face him, kicked him in the groin and
managed to escape. After Schrier fled, the assailant
apparently set her car on fire.
Schrier gave a statement about the attack to Detective
Kulakoski on the day after the incident. She described her
attacker’s clothing—white T-shirt, brown pants and tennis
shoes—and his physical appearance—white male, late 30's to
early 40's, 5'9" or 5'10", no facial hair or visible tattoos and a
6 Bigelow v. Williams No. 02-4203
very close, almost Marine-like haircut. JA 654. After giving
this statement, Schrier looked through photograph arrays and
did so again on several other occasions, but she never
recognized any of the men as her attacker. JA 611. An initial
attempt by police to create a composite sketch of the assailant
failed to produce a passable likeness. A police artist later
attempted a free-hand drawing of the man based on Schrier’s
input, the end result of which looked much like her attacker,
Schrier concluded, prompting police to distribute copies of
the sketch to patrol officers and to local media on July 8,
1993.
The next day, police brought Bigelow in for questioning
based on his resemblance to the man in the drawing. They
photographed him, and included his picture in a photo array
shown to Schrier. She pointed out Bigelow’s photo to
Detective Kulakoski but noted that she did not remember the
deep lines in his face and could not be certain that this was
her attacker unless she saw him in person. Several hours
later, Schrier identified Bigelow in a line-up, and he was
detained. Bigelow maintained his innocence and rejected a
plea offer that included a five-year prison sentence. His case
proceeded to trial five months later.
At trial, the State presented Charlotte Schrier’s testimony,
as well as the testimony of Thomas Mermer. Mermer had
been near the scene of the incident and had radioed for help.
After doing so, he noticed a man running into the field behind
Schrier’s burning car. Mermer testified that he could see the
man only from the side and behind, JA 628; unlike Schrier,
the police never showed Mermer any photo arrays or asked
him to attend a line-up. Two weeks before trial, however,
Mermer saw Bigelow giving an interview on television and
identified him as the man he saw running into the field on the
day of the crime. JA 629–30. The State did not introduce
any other evidence connecting Bigelow to the crime.
The defense claimed that Bigelow was in Columbus, Ohio,
150 miles southeast of Toledo, on June 17, 1993, the day of

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No. 02-4203 Bigelow v. Williams 7
the attack. In support of this alibi defense, it relied on two
witnesses. John Laughner, the Columbus branch manager of
Orkin Pest Control, testified that his office records showed
that Vernon Greenlee, an employee of Orkin, had worked at
the Columbus home of Gary Chasen over a period of two
days, including from 11:00 a.m. to 5:00 p.m. on June 17th.
JA 677. Greenlee also testified, and he confirmed that he
treated the Chasen home for termites on the 17th. JA 684.
He testified that a man had helped him move some objects
from the garage so he could perform the treatment, and that
the man was present when Greenlee arrived and when he left.
JA 687. Greenlee identified Bigelow in court as the man who
helped him in the garage on June 17th. JA 690–91. His
testimony also acknowledged, however, that he had failed to
identify Bigelow’s photograph in an array shown to him by
police, that he had worked at the Chasen home over two
consecutive days, not just on the date of the crime, and that he
had performed between fifty and one hundred jobs since June
17th of that year. Bigelow did not testify.
The jury convicted Bigelow of kidnapping, felonious
assault and arson, and the trial court sentenced him to
consecutive prison terms, which together created a twenty to
forty-two year prison term. Bigelow unsuccessfully appealed
his conviction. He then filed a petition for state post-
conviction relief claiming he had received ineffective
assistance of trial counsel because his court-appointed lawyer
had not adequately investigated his alibi defense. The state
trial court denied Bigelow’s petition, but the appeals court
remanded for an evidentiary hearing. After hearing testimony
from the three alibi witnesses whom Bigelow claimed his
attorney should have identified before trial, the court again
denied his petition, the appeals court affirmed, and the state
supreme court denied review. Bigelow filed this suit for a
writ of habeas corpus in federal district court, again claiming
ineffective assistance of counsel in violation of his Sixth (and
Fourteenth) Amendment rights.
8 Bigelow v. Williams No. 02-4203
B. Bigelow’s Allegations of Ineffective Assistance of
Counsel
Bigelow first complained about the ineffectiveness of his
lawyer in a letter to the state court before trial. The letter
prompted the court to conduct a hearing on November 2,
1993, to determine whether Bigelow’s lawyer, Peter Rost,
should be replaced. At the hearing, Rost explained the
difficulties of representing Bigelow and the investigative
work he had undertaken on behalf of his client. Among the
difficulties in supporting the alibi defense were that Bigelow
could not remember exactly where in Columbus he had been
on June 17th and that Bigelow suffered from a then-untreated
mental illness, which contributed to his inability to aid the
defense. JA 471, 726-27.
Despite these challenges, Rost noted that Bigelow had
provided him with a list of names and possible leads—all but
one of which Rost had pursued by telephone. In particular,
Rost talked on the telephone to Gary Chasen, who besides
being the owner of 654 Indian Mound Road where Greenlee
had worked on June 17th, also owned rental property in
Columbus where Bigelow at one point had lived. Chasen told
Rost he could not confirm that Bigelow was in Columbus on
the 17th. Similarly, Dan Watson and Deborah Gray, who also
owned a home in Columbus where Bigelow had rented a
room, were unable to remember whether Bigelow was with
them on the 17th. At Rost’s request, they checked the records
of the telephone line that Bigelow shared with them to see if
Bigelow had placed any calls to his friends or family on that
date. The records showed only calls for June 20th and June
24th, but not June 17th. Rost followed up on other leads that
Watson and Gray provided, but they too proved unsuccessful.
Rost next contacted Greyhound Bus to determine whether
Bigelow had traveled to Columbus around June 17th;
Greyhound informed Rost that they did not have passenger
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;

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No. 02-4203 Bigelow v. Williams 9
their records showed he had not. Finally, Rost searched
Bigelow’s personal papers for documentation that could
establish Bigelow’s presence in Columbus on June 17th, but
again to no avail. After hearing about these efforts, the trial
judge denied Bigelow’s motion for a change of counsel.
On the day after this hearing, Bigelow began his own
investigation. He wrote two letters from his prison cell—one
to Orkin Pest Control, the other to Moonlighting Landscape
and Lighting. In both letters, he asked whether anyone at the
companies could verify his presence at Gary Chasen’s home
at 654 Indian Mound Road on June 17th and asked them to
contact Rost if they had any such information. At Orkin,
Laughner received Bigelow’s letter, checked his records of
work performed, and learned that Greenlee had in fact been
there. He spoke to Greenlee, who remembered seeing (and
talking to) Bigelow that day. On the evening of Thursday,
November 11th—four days before the trial was to begin on
Monday, November 15th—Greenlee telephoned Rost about
his recollection of Bigelow at the Chasen home on June 17th.
The phone call apparently did not spur Rost into performing
any further investigation, though he did subpoena Laughner
and Greenlee and did present their testimony at trial.
Bigelow’s second letter, to Moonlighting Landscape, also
arrived at its intended destination. Christine Patridge (a co-
owner) checked the company’s records and learned that she,
Vic Timler (also a co-owner) and Jay Loyzelle (an employee)
had all been at the Chasen home on June 17th. Like Orkin,
they had been hired by Chasen to help prepare his home and
yard for his daughter’s wedding. All three recalled seeing
Bigelow on June 17th and either having an extended
encounter with Bigelow or noticing an idiosyncratic feature
of his behavior or appearance. Patridge recalled that Bigelow
talked to her for an extended period of time, and that he was
very inquisitive about their landscaping work. JA 756.
Timler noticed Bigelow oddly trimming a boxwood shrub
with scissors and noticed that he was dressed atypically for
yard work. JA 105, 776. Loyzelle saw Bigelow there both
10 Bigelow v. Williams No. 02-4203
when he arrived in the morning and when he left late in the
day, JA 805, 810; he spoke with Bigelow for “quite a while”;
and he recalled that Bigelow cut his hand and asked for a
band aid, JA 803.
The three witnesses agree that one of them (likely Patridge)
contacted Gary Chasen to tell Chasen about Bigelow’s letter
and their memories of him being there. Chasen, however,
told Patridge that it was better not to get involved and that she
should ignore the letter. JA 757. Nonetheless, Patridge
claimed that she called Rost and left him a message, but she
could not remember when she did so and whether she left the
message on an answering machine or with Rost’s assistant.
JA 766, 768. Rost claimed that he never received any
message from Patridge and did not learn of the existence of
the Moonlighting witnesses until he read Bigelow’s state
post-conviction petition. Bigelow insisted that he told Rost
about both the Orkin and Moonlighting letters. JA 824–25.
Bigelow’s essential claim, in both the state and federal
post-conviction proceedings, is that Rost failed to satisfy the
minimal requirements of effective advocacy because he did
not adequately investigate Bigelow’s alibi defense. As a
factual matter, Bigelow claims that Rost knew about the
Moonlighting Landscape lead, either because Bigelow told
him or because he received the message from Christine
Patridge, and accordingly Rost’s failure to contact these
witnesses and present their testimony at trial constituted
ineffective assistance of counsel. Regardless of whether Rost
actually knew about the Moonlighting employees before trial,
Bigelow adds that Rost’s failure to investigate adequately still
constitutes ineffective assistance of counsel. Had his
investigation been more thorough—i.e., had Rost obtained
court funds for and hired an investigator, traveled to the
location of Bigelow’s alibi or at least investigated further
once he learned that Greenlee could place Bigelow at the
Chasen residence on the day of the attack—he undoubtedly
would have uncovered the Moonlighting employees. The
Ohio courts rejected these arguments, as did the federal

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No. 02-4203 Bigelow v. Williams 11
district court, determining that Rost’s assistance was not
ineffective under Strickland v. Washington.
II.
In reviewing the denial of a habeas petition, we consider the
district court’s legal conclusions anew, applying the same
standard of review to the state court decision that the district
court applied. See Smith v. Hofbauer, 312 F.3d 809, 813 (6th
Cir. 2002). That standard of review is supplied by
AEDPA—The Antiterrorism and Effective Death Penalty
Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996). When a
state court has already adjudicated a federal constitutional
claim, AEDPA establishes that the writ of habeas corpus may
issue in just two instances: (1) if the state court decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1); or (2) if
the state court decision was “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” id. § 2254(d)(2).
To succeed on an ineffective assistance of counsel claim, a
petitioner must show (1) that his lawyer’s performance was
deficient and (2) that the deficiency prejudiced the defense.
Strickland, 466 U.S. at 687. In establishing the first
requirement, the petitioner must demonstrate that his lawyer’s
performance “fell below an objective standard of
reasonableness” as measured by “prevailing professional
norms.” Id. at 687–88. Judicial review of the lawyer’s
performance must be “highly deferential,” and “indulge a
strong presumption” that a lawyer’s conduct in discharging
his duties “falls within the wide range of reasonable
professional assistance,” since reasonable lawyers may
disagree on the appropriate strategy for defending a client. Id.
at 689. While “strategic choices made after thorough
investigation of law and facts . . . are virtually
unchallengeable[,] [] strategic choices made after less than
complete investigation are reasonable precisely to the extent
12 Bigelow v. Williams No. 02-4203
that reasonable professional judgments support the limitations
on investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Id. at
690–91; see also O’Hara v. Wigginton, 24 F.3d 823, 828 (6th
Cir. 1994) (“[A] failure to investigate, especially as to key
evidence, must be supported by a reasoned and deliberate
determination that investigation was not warranted.”); cf.
ABA Standards for Criminal Justice 4-4.1(a) (3d ed. 1993)
(“Defense counsel should conduct a prompt investigation of
the circumstances of the case and explore all avenues leading
to facts relevant to the merits of the case and the penalty in
the event of conviction.”).
In establishing prejudice, Bigelow must demonstrate a
“reasonable probability” that the result of his trial would have
been different but for Rost’s mistakes. Strickland, 466 U.S.
at 694. A “reasonable probability” is a probability “sufficient
to undermine confidence in the outcome,” id., but something
less than a showing that the outcome more likely than not
would have been different, id. at 693. While the petitioner
need not conclusively demonstrate his “actual innocence,”
compare Schlup v. Delo, 513 U.S. 298, 327 (1995) (requiring
petitioner to establish more likely than not that a reasonable
juror would not have convicted him), with Strickland, 466
U.S. at 693 (“we believe that a defendant need not show that
counsel’s deficient conduct more likely than not altered the
outcome in the case”), the focus should be on whether the
result of the trial was “fundamentally unfair or unreliable,”
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
A.
Bigelow first claims that Rost knew about the
Moonlighting Landscape employees but refused to
communicate with them about testifying as alibi witnesses.
In the state courts and in the district court, no one has debated
whether this allegation, if true, would present a serious Sixth
Amendment claim. For the failure to call a known alibi

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No. 02-4203 Bigelow v. Williams 13
witness generally would constitute ineffective assistance of
counsel. See, e.g., Matthews v. Abramajtys, 319 F.3d 780,
789–90 (6th Cir. 2003); Blackburn v. Foltz, 828 F.2d 1177,
1182–83 (6th Cir. 1987). Rather, the debate has been joined
on the question whether the facts support the claim, an issue
that the state courts resolved against Bigelow.
In bringing this claim, Bigelow thus must overcome the
state court’s factual finding that “Pete Rost was not aware of
Christine Patridge, Victor Timler, or Jay Loyzelle as
additional witnesses who would support Bigelow’s alibi
defense.” JA 279. That is no small task. Under AEDPA, we
presume that the state court’s factual findings are correct, and
the petitioner bears the burden “of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); see Mitchell v. Mason, 325 F.3d 732, 737–38
(6th Cir. 2003).
Although the record reveals some support for his position,
Bigelow has not rebutted this presumption of correctness. At
the state-court evidentiary hearing, Rost testified that Bigelow
did not tell him about the letter to the landscape company and
that he did not know about these potential witnesses.
Bigelow, however, gave inconsistent testimony. He first
stated that he told Rost about the letters, and that he
remembered doing so because he had put Rost’s home and
work phone numbers in the letter (presumably so Rost would
expect any resulting calls). JA 824–25, 827. But on cross-
examination, Bigelow admitted that he “didn’t tell Pete about
[the letters] because the [other] leads, like the people said
earlier, were no good that I gave to Pete Rost.” JA 836.
Patridge’s testimony that she left a message for Rost also
does not undermine the state court’s finding. Her testimony
at the hearing, as an initial matter, conflicted with her
affidavit in which she stated that she ignored the letter from
Bigelow after talking to Chasen, who discouraged her from
getting involved in the case. Patridge also could not
remember when she left the message, and given the proximity
14 Bigelow v. Williams No. 02-4203
between the date of Bigelow’s letter to Moonlighting
(November 3rd) and the date of the trial (November 15th), she
may well have called after, possibly well after, the trial. And
even if she left the message before trial, it requires few
inferences to believe that Rost did not get the message,
whether Patridge left it on an answering machine or with
Rost’s assistant. In view of the deferential standard of review
that applies in this setting, the district court correctly rejected
Bigelow’s challenge to this factual finding and correctly
rejected this ground for granting the writ.
B.
Bigelow next argues that Rost’s failure to investigate after
he became aware of the Greenlee evidence constituted
ineffective assistance of counsel. In the words of Bigelow’s
appellate brief:
Once defense counsel learned of the Orkin witnesses,
he had an obligation to follow-up on the Orkin
information and pursue this lead. From Orkin, defense
counsel learned that Mr. Bigelow was on the Chasen
property on June 17, 1993. From Orkin, defense counsel
knew that Mr. Chasen had been wrong about Mr.
Bigelow being on the property on June 17, 1993. He
now had the tools to refresh Mr. Chasen’s memory with
this new information. Had defense counsel followed up
on this information, Moonlighting’s presence at the
Chasen home, which corroborated Orkin’s testimony,
could have been easily discovered.
Appellant’s Br. at 32. Bigelow raised the same argument in
the district court, Traverse to Respondent’s Return of Writ at
22–24, and in state court, Mem. for Pet’r, JA 238. In some
contrast to his challenge to the state court’s factual finding,
Bigelow may prevail on this claim if he can show that the
state court’s application of Supreme Court precedent in this
area was “objectively unreasonable.” Wiggins, 123 S. Ct. at
2534–35.

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No. 02-4203 Bigelow v. Williams 15
Even though Bigelow raised this issue below and in state
court, the district court did not address it—perhaps because
the issue was obscured by the understandable focus in state
court and in the district court on whether Rost in fact knew
about these other alibi witnesses. In response, the State asks
us to affirm the judgment nonetheless, arguing that the claim
is meritless. We disagree. The claim is sufficiently serious
that it warrants consideration by the district court in the first
instance and may even warrant an evidentiary hearing. Even
after looking at the issue through the prism of AEDPA, the
State has not shown that Bigelow’s claim under Strickland
prong one (the adequacy of counsel’s performance) or prong
two (prejudice to the defendant) deserves plenary rejection by
us. To the ends of facilitating the district court’s
consideration of these issues, we offer some explanation for
rejecting the State’s invitation to reject this claim at this stage
of the case.
The record regarding the adequacy of counsel’s
investigation raises as many questions as answers. In spite of
Rost’s initial lack of success in investigating Bigelow’s
defense—or perhaps because of that lack of success—it is
difficult on this record to understand why the surfacing of the
Greenlee evidence did not prompt Rost to investigate further.
Greenlee was the first person to come forward who could
corroborate Bigelow’s claim that he had been in Columbus,
not Toledo, on the day (and at the time) of the crime. Rost’s
own actions, moreover, prove he understood the significance
of the evidence, as he put Greenlee on the stand virtually sight
unseen and without any further investigation. Indeed, Rost
admitted on the morning of trial that he had not yet spoken to
Bigelow’s only alibi witness, namely Greenlee. JA 487. At
a minimum, it would seem that this evidentiary breakthrough
would have prompted additional inquiry either by Rost or by
a publicly-funded investigator. Cf. Workman v. Tate, 957
F.2d 1339, 1345 (6th Cir. 1990) (concluding that “reasonable
prudence” should have prompted the lawyer to recognize the
importance of potential witness testimony to the defense);
Griffin v. Warden, Maryland Corr. Adjustment Ctr., 970 F.2d
16 Bigelow v. Williams No. 02-4203
1355, 1359 (4th Cir. 1992) (recognizing the significance of
alibi evidence in countering an eyewitness case assembled by
the State).
Nor, at this point, can we readily agree with the State that
Rost made “a reasonable decision that ma[de] [this] particular
investigation[] unnecessary.” Strickland, 466 U.S. at 691. To
our knowledge, the State has not even attempted to offer a
strategic explanation for Rost’s failure to investigate further
once he learned of Greenlee’s evidence. The information
provided by Greenlee did nothing to suggest that further
investigation would be futile or damaging to his client, but in
point of fact suggested just the opposite. See Wiggins, 123 S.
Ct. at 2537 (noting that the fact the lawyers “uncovered no
evidence in their investigation to suggest that . . . further
investigation would have been fruitless” differentiated
Wiggins’ case from those in which limited investigations
were reasonable); see also Workman, 957 F.2d at 1345
(“Where counsel fails to investigate and interview promising
witnesses, 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.”) (quotation
and citation omitted); id. (noting that the case was not one
where further investigation would be unlikely to bear fruit,
which could excuse a lawyer’s failure to investigate).
Bigelow himself also did not supply any reasons why
further inquiry would be unproductive. Instead, Greenlee’s
evidence amounted to the first evidentiary breakthrough in the
case, which suggested that (1) Bigelow was in Columbus on
the date of the assault, (2) Bigelow at the very least was in
Columbus on the day before or the day after the assault (since
Greenlee worked at the Chasen home for two consecutive
days) and (3) Gary Chasen, the owner of the house where
Greenlee and Bigelow had worked, erred in telling Rost he
had no relevant information about Bigelow’s whereabouts on
June 17th.

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No. 02-4203 Bigelow v. Williams 17
Given that Greenlee’s testimony was the only evidence then
available for Bigelow’s defense and given that his testimony
would be vulnerable on cross-examination since he had been
at Chasen’s house for two days, Rost’s failure to do anything
at this point remains unexplained, if not inexplicable. While
Bigelow was “not entitled to an attorney who will leave not
the smallest stone unturned,” since he had “but one stone, it
should at least [have been] nudged.” Coleman v. Brown, 802
F.2d 1227, 1234 (10th Cir. 1986) (internal quotation, citation
omitted). Rost appeared to have a host of options available to
him for nudging that stone: he could have requested a
continuance in order to investigate this new lead in the case;
he could have hired an investigator (with court funds); or at
the very least he could have spent the four days before trial
following up on the information that Greenlee provided him.
But as in Wiggins, it appears on this record that Rost “chose
to abandon [his] investigation at an unreasonable juncture,
making a fully informed decision” with respect to trial
strategy very difficult, if not impossible. 123 S. Ct. at 2538.
Like the state-court proceedings, the State’s contrary
arguments suffer from a mistaken emphasis on (1) whether
Rost knew about the Moonlighting employees and (2) what
Rost did earlier in the case rather than what Rost failed to do
once he learned of Greenlee. As to the first point, it makes no
difference whether Rost knew about these witnesses if a
reasonable investigation (after Greenlee came forward) would
have uncovered their identities anyway. See Wiggins, 123
S. Ct. at 2537 (noting that if counsel had performed a
reasonable investigation, they likely would have discovered
evidence of sexual abuse that could have been presented at
sentencing hearing); Lindstadt v. Keane, 239 F.3d 191,
200–01 (2d Cir. 2001) (determining that counsel was
ineffective for failing to investigate the case, as a reasonable
investigation undoubtedly would have uncovered the error in
the time frame of plaintiff’s accusations, which would have
led to alibi defense); Sims v. Livesay, 970 F.2d 1575, 1580
(6th Cir. 1992) (“Although defense counsel might not have
been told about [potentially exculpatory evidence] by Sims,
18 Bigelow v. Williams No. 02-4203
prior to trial [defense counsel] was in possession of an FBI
report that should have alerted him to the significance of [this
evidence] for the defense.”).
Once Rost learned of Greenlee, had he taken even minimal
additional investigative steps—e.g., by contacting the
initially-reluctant Chasen and confronting him with the new
information about Greenlee, asking Chasen for records of the
companies that helped with wedding preparations on the 17th,
or talking to Chasen’s neighbors—he likely would have
uncovered the Moonlighting Landscape employees. The
same is true of a follow-up conversation with his client. Had
he discussed Orkin with Bigelow, he assuredly would have
learned of Moonlighting, since Bigelow’s letters demonstrate
that he had already developed a link between the two
companies and his whereabouts on June 17th.
As to the second point—the adequacy of Rost’s
investigative efforts before Greenlee came forward—we agree
with the State that Rost’s performance surpassed the
“objective standard of reasonableness” described in
Strickland. But Rost’s commendable efforts before Greenlee
arrived on the scene cannot shield from scrutiny his efforts
after this evidence surfaced. Wiggins demonstrates that it
does not invariably suffice that a lawyer make some efforts to
investigate a case; the proper inquiry is “whether the known
evidence would lead a reasonable attorney to investigate
further.” 123 S. Ct. at 2538; see also, e.g., Montgomery v.
Petersen, 846 F.2d 407, 414 (7th Cir. 1988) (defense
counsel’s failure to investigate a promising lead that would
have uncovered a disinterested alibi witness constituted
ineffective assistance even though the lawyer had interviewed
and put on the testimony of twelve other witnesses). Neither
does the late arrival of the Greenlee evidence necessarily
excuse Rost’s failure to act. See Bryant v. Scott, 28 F.3d
1411, 1417 (5th Cir. 1994) (determining that counsel was
ineffective, because it was “incumbent upon [him] to at least
try to contact” a potential alibi witness that he learned about
seventy-two hours before the start of trial); cf. id. (noting that

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No. 02-4203 Bigelow v. Williams 19
even if the lawyer had learned of the alibi witnesses on the
first day of trial, he “nevertheless should have contacted the
witnesses and made his record to the trial court as to the
significance of the alibi and the fact that it was newly
discovered”) (quotation and citation omitted).
In the end, given what Rost learned from Greenlee four
days before trial (that Bigelow was at the Chasen home on the
day of the attack) and given what Rost knew about other alibi
evidence up to that point (nothing), his apparent decision to
do no further investigation deserves fresh consideration by the
district court. Thus far, the State has given no indication that
Rost did any further investigation after hearing from Greenlee
and has offered no reasoned explanation—strategic or
otherwise—why Rost should not have investigated further at
that point. To the ends of answering these questions (and
potentially developing a record in support of those answers),
we ask the district court to take an initial look at the adequacy
of Bigelow’s counsel in these respects.
Nor, on this record, can one say that any errors in Rost’s
investigation were not prejudicial. Although we leave the
question open for the district court to decide, it seems on this
record that Rost would have uncovered the Moonlighting
witnesses had he investigated further after learning of
Greenlee. And Rost acknowledges that he would have
subpoenaed the three witnesses to testify at trial if he had
known about them. JA 747.
The key question is whether the testimony of the
Moonlighting employees would have made a persuasive case
that Bigelow was at the Chasen home in Columbus on
June 17th, 1993. We leave this issue for the district court to
consider in the first instance because, contrary to the State’s
contention, its resolution is not obvious. At the state court
evidentiary hearing, Moonlighting’s records showed that
Patridge, Timler and Loyzelle all worked at the Chasen home
on June 17th, JA 105B, 107, 753, 795–96, and at least one of
them (Timler) did not work at the property on any other day,
20 Bigelow v. Williams No. 02-4203
JA 778. All three witnesses identified Michael Bigelow,
sitting before them at the evidentiary hearing, as the man they
had seen and interacted with at the Chasen home on the 17th.
JA 754–55, 781–84, 804. Timler initially testified that he was
“80%” sure Bigelow was at the Chasen home that day, but
then said he was “100%” certain it was Bigelow. JA 783–84.
Patridge’s in-court identification of Bigelow went
unchallenged by the State, and she stated in her affidavit that
Chasen “introduced” Bigelow (presumably by name).
JA 105B. Loyzelle identified Bigelow in court as well,
JA 804, and his affidavit noted that Chasen had addressed
Bigelow on the 17th as “Mike,” JA 107. All three witnesses,
moreover, recalled idiosyncratic details about their encounters
with Bigelow (i.e., his inquisitiveness, the fact that he was
pruning hedges with a pair of scissors and that he cut his hand
and asked for a band aid), adding credence to their memories
of seeing him.
Loyzelle testified that he saw Bigelow at various points
both in the morning and the afternoon of June 17th, JA 805,
811, making it impossible for Bigelow to have slipped away
to make the six-hour round-trip to Toledo and back. This
testimony, if believed, would have precluded the possibility
that Bigelow attacked Schrier at midday on the 17th.
All three witnesses were completely disinterested, as none
of them had any previous connection to Bigelow. JA 753–54,
774–75, 802. In fact, Timler testified that it was quite costly
for the three to attend the evidentiary hearing in view of the
money they could have been earning on another landscaping
job. JA 780.
This evidence plainly would have bolstered Bigelow’s
defense and was anything but cumulative. See Washington v.
Smith, 219 F.3d 620, 634 (7th Cir. 2000); Montgomery, 846
F.2d at 413 (introduction of alibi witness would not have been
cumulative despite testimony by twelve other witnesses
where the new witness did not bear the same weakness as the
others). Bigelow had just one witness at trial (Greenlee) who

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No. 02-4203 Bigelow v. Williams 21
could support his alibi defense. Doubtless, three other
witnesses, who like Greenlee did not previously know
Bigelow and accordingly had no axe to grind in testifying on
his behalf, would have aided the defense. This testimony also
would have shored up the weaknesses in Greenlee’s
testimony—that he had worked at Chasen’s house over a
period of two days, which cast doubt on his certainty as to the
date that he actually witnessed Bigelow, and that he had been
unable to select Bigelow from a photo lineup, which cast
doubt on his in-court identification.
The testimony of the Moonlighting witnesses also would
have facilitated Bigelow’s efforts to undermine the State’s
case. The State presented two eyewitnesses, both of whom
identified Bigelow in court, but did not introduce any forensic
or other evidence in the case. Schrier, for one, testified that
she had a limited opportunity to view her attacker. Because
the assailant remained behind her and she obeyed his
instructions not to turn around, JA 498–501, she had two
opportunities to view his face: (1) when he told her to light
his cigarette; and (2) when she turned around to face him just
before kicking him and escaping. JA 510, 525, 528, 530.
Both opportunities, however, were fleeting. See JA 511,
534–35. There also was a disparity between the exacting
details about her attacker’s face that she supplied at trial and
her initial description of him. At trial, she testified about his
hairline, Adam’s apple, cheekbones, eyes and lips. But in the
original description she gave to the police, she focused on the
attacker’s clothing, height and age.
The testimony of the other eyewitness, Thomas Mermer,
was even weaker. He admitted (1) that he saw the assailant
only from the back and side at a distance running away from
the scene of the crime, JA 628, and (2) that police never
showed him a lineup or photo display, JA 629. Mermer first
identified Bigelow as the defendant after seeing Bigelow’s
face on television many months after the incident, JA 629–30,
a classically suggestive setting because Bigelow was giving
an interview to local media about his impending trial.
22 Bigelow v. Williams No. 02-4203
The state trial court’s conclusion to the contrary does not
alter this analysis. It described the Moonlighting witnesses’
testimony as “vague and unconvincing,” pointing to
inconsistencies between their affidavits and their hearing
testimony. The inconsistencies, however, are just three, and
they are insignificant to boot. They were: (1) typographical
mistakes as to the year that Bigelow was at the Chasen home
(which were corrected and initialed by the notary public); (2)
Patridge’s testimony that she contacted Rost versus her
affidavit statement that she ignored his letter (which relates to
the separate question whether Rost knew about these
witnesses before trial); and (3) Loyzelle’s testimony that he
left the property between 5:00 p.m. and 5:30 p.m., not at 4:15
p.m. as he indicated in the affidavit (which would not have
made a difference as to whether Bigelow committed a midday
attack). None of the inconsistencies undermine the pivotal
facts established by the affidavits: that Patridge checked
Moonlighting’s records and verified that they were at
Chasen’s on the 17th; that they saw Bigelow there both in the
morning and in the afternoon; and that Chasen had introduced
Bigelow to Patridge and referred to him as “Mike” within
earshot of Loyzelle. Each of these statements was consistent
with the evidentiary hearing testimony of the witnesses.
In the final analysis, the addition of the three Moonlighting
witnesses would have presented the jury with (1) four
witnesses on the one hand who could identify Bigelow in
court as the man they saw in Columbus on June 17th and (2)
two witnesses on the other hand who could identify him in
court as the assailant in one instance and as the man running
from the crime scene in the other. In a case involving
identification and identification alone, it is not easy to
imagine a defense lawyer who would pass on the chance to
bolster the defense with evidence of this sort—particularly
since eyewitness evidence is “precisely the sort of evidence
that an alibi defense refutes best,” Griffin, 970 F.2d at 1359.
But because these issues were not addressed by the district
court and because some of them may benefit from additional

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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.

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