Kylleen Hargrave- Thomas v. Joan Yukins

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0208P (6th Cir.)
File Name: 04a0208p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KYLLEEN HARGRAVE-
THOMAS,
Petitioner-Appellee,
v.
JOAN YUKINS,
Respondent-Appellant.
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No. 02-2152
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 00-40171—Paul V. Gadola, District Judge.
Argued: October 30, 2003
Decided and Filed: July 6, 2004
Before: NELSON, CLAY, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Joseph A. Puleo, OFFICE OF THE
PROSECUTING ATTORNEY, COUNTY OF WAYNE,
Detroit, Michigan, for Appellant. Andrea D. Lyon, DePAUL
UNIVERSITY COLLEGE OF LAW, Chicago, Illinois, for
Appellee. ON BRIEF: Joseph A. Puleo, OFFICE OF THE
2 Hargrave-Thomas v. Yukins No. 02-2152
PROSECUTING ATTORNEY, COUNTY OF WAYNE,
Detroit, Michigan, for Appellant. Andrea D. Lyon, DePAUL
UNIVERSITY COLLEGE OF LAW, Chicago, Illinois,
Bridget M. McCormack, MICHIGAN CLINICAL LAW
PROGRAM, Ann Arbor, Michigan, for Appellee.
NELSON, J., delivered the opinion of the court, in which
COOK, J., joined. CLAY, J. (pp. 14-20), delivered a separate
dissenting opinion.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. This is an appeal
from an order granting a writ of habeas corpus. The key issue
is whether the state trial court’s refusal to hold an evidentiary
hearing on certain ineffective assistance claims which the
petitioner had asserted in a timely motion for a new trial
constituted “cause” for the petitioner’s subsequent failure to
assert a different ineffective assistance claim in her direct
appeal. We conclude that the denial of an evidentiary hearing
on the particular ineffective assistance claims that were
asserted initially did not constitute cause for the delay (which
proved to be fatal) in asserting the new ineffective assistance
claim. Accordingly, and because the procedural default
cannot be excused on other grounds, we shall reverse the
grant of the writ.
I
After a bench trial in a Michigan state court, the petitioner,
Kylleen Hargrave-Thomas, was found guilty of first degree
murder and arson. The court determined that early one
morning Ms. Hargrave-Thomas entered the home of her
boyfriend while he was sleeping, stabbed him in the heart
with a knife she had taken from his kitchen, and set his bed on
fire. She was sentenced to life in prison.

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No. 02-2152 Hargrave-Thomas v. Yukins 3
Ms. Hargrave-Thomas moved for a new trial, arguing,
among other things, she had been denied effective assistance
of counsel by reason of the fact that her trial lawyers had
neglected to move for the suppression of certain evidence and
had failed to object to alleged prosecutorial misconduct. Ms.
Hargrave-Thomas asked the court to hold an evidentiary
hearing if it could not grant the requested relief on the
existing record.
The prosecution opposed the motion and argued that an
evidentiary hearing was unnecessary. The acts or omissions
of counsel cited by Ms. Hargrave-Thomas were already
matters of record, the prosecution maintained, and the record
showed they lacked merit. The trial court accepted the
prosecution’s argument and denied the motion for a new trial
without conducting an evidentiary hearing.
Ms. Hargrave-Thomas then appealed her conviction,
asserting the same ineffective assistance claims she had raised
in her motion for a new trial. She also moved for a remand to
the trial court for an evidentiary hearing. The state court of
appeals denied the remand motion “for failure to persuade the
Court of the necessity of a remand at this time.” The court
went on to affirm Ms. Hargrave-Thomas’ conviction, holding
among other things that Hargrave-Thomas had not established
that she had been prejudiced by the alleged deficiencies in her
lawyers’ performance. The Michigan Supreme Court denied
Ms. Hargrave-Thomas’ application for leave to appeal.
Next, represented by new counsel, Ms. Hargrave-Thomas
filed a motion with the trial court seeking post-appeal relief
from judgment under Chapter 6.500 of the Michigan Court
Rules. The motion raised a new claim of ineffective
assistance of trial counsel – one that Ms. Hargrave-Thomas
acknowledged had not been raised in her motion for a new
trial or in her appeal. This new claim was based on her trial
counsel’s alleged failure to investigate the case and interview
witnesses. Ms. Hargrave-Thomas asked the trial court to
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1M.C.R.6.508(D)(3) provides, in part, that “[t]he court may not grant
[post-appeal] relief to the defendant if the motion
* * *
“(3) alleges grounds for relief, other than jurisdictional defects,
which could have been raised on appeal from the conviction and
sentence or in a p rior motion under this subchapter, unless the
defendant demonstrates
“(a) good cau se for failure to raise such grounds on
appeal or in the prior motion, and
“(b) actual prejudice from the alleged irregularities that
supp ort the claim for relief.
* * *
“The court may waive the ‘go od cause’ requirement of subrule
(D)(3)(a) if it concludes that there is a significant possib ility that
the defendant is innocent of the crime.”
order her immediate release or, in the alternative, to allow
discovery and to hold an evidentiary hearing.
The state argued, in response, that consideration of the new
ineffective assistance claim was barred by M.C.R.
6.508(D)(3), Ms. Hargrave-Thomas having failed to establish
“good cause” for not raising the claim on appeal and “actual
prejudice” resulting from the allegedly ineffective assistance.1
Hargrave-Thomas replied that she could not have raised the
failure-to-investigate claim on appeal because the facts
supporting that claim were not in the trial record and were not
known to her at the time.
The trial court denied the motion for relief from judgment
on both procedural and substantive grounds. First, the court
held that Ms. Hargrave-Thomas “fail[ed] to establish ‘good
cause’ for not raising” the new ineffective assistance claim on
appeal. The court then addressed the merits of the claim and
rejected it on the ground that an attorney’s failure to
investigate “do[es] not constitute ineffective assistance of
counsel.” The court did not hold an evidentiary hearing.

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No. 02-2152 Hargrave-Thomas v. Yukins 5
Ms. Hargrave-Thomas sought leave to appeal, but both the
court of appeals and the supreme court denied leave on the
ground that Hargrave-Thomas had failed “to meet the burden
of establishing entitlement to relief under MCR 6.508(D).”
Ms. Hargrave-Thomas then filed her federal court petition
for a writ of habeas corpus. The petition asserted four
grounds for relief, one of which was a tripartite ineffective
assistance claim. The claim was based on (1) trial counsel’s
alleged failure to investigate and interview witnesses, (2) the
failure to move to suppress evidence, and (3) the failure to
object to alleged prosecutorial misconduct. With respect to
the failure-to-investigate branch of the ineffective assistance
claim, the state responded that the Michigan courts had
rejected the claim on procedural grounds and Ms. Hargrave-
Thomas had not shown “cause” for her procedural default.
Prior to the hearing on Ms. Hargrave-Thomas’ petition, the
district court instructed counsel for both parties to be prepared
to discuss what the court perceived as a “Catch-22.” Because
Ms. Hargrave-Thomas’ requests for an evidentiary hearing
were denied, the court said, she was not able to raise her
failure-to-investigate claim on direct appeal. And because she
had not raised the failure-to-investigate claim on direct
appeal, she was barred from raising it in her collateral
proceeding. “It thus appears,” the district court said, that “the
state procedural rules prevented Petitioner from raising her
failure-to-investigate claim until she reached this Court.”
After argument, the district court concluded that the denial
of the requests for an evidentiary hearing constituted “cause”
for Ms. Hargrave-Thomas’ procedural default. The court
further concluded that Hargrave-Thomas was prejudiced by
her trial attorneys’ failure to investigate. The court therefore
ordered that Hargrave-Thomas be granted a new trial or be
released from custody. (The court rejected Hargrave-
Thomas’ other claims for relief, including the remaining
branches of her ineffective assistance claim.) The state has
filed a timely notice of appeal.
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II
In general, a federal court may not consider a claim for
habeas corpus relief if the claim was procedurally defaulted
in state court – i.e., if the last state court to render a judgment
in the case rejected the claim because it was not presented in
accordance with the state’s procedural rules. See, e.g., Harris
v. Reed, 489 U.S. 255, 262 (1989). A procedurally defaulted
claim may be considered in federal habeas corpus proceedings
only if the petitioner either shows “cause” for his failure to
comply with the state’s procedural rules and “prejudice”
resulting from the alleged violation of federal law or shows
that the federal court’s refusal to consider the claim will result
in a “fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991); see, e.g., Harris, 489
U.S. at 262.
The question presented in the case at bar is whether the
district court erred in ruling that “cause” and “prejudice”
excused the procedural default of Ms. Hargrave-Thomas’
failure-to-investigate claim. The district court’s application
of the “cause and prejudice” rules must be reviewed de novo.
See, e.g., Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).
Because we are reviewing a federal court’s application of
legal rules, and not the state courts’ adjudication of the claim,
we are not called upon to determine whether any state court
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C.
§ 2254(d). Such a determination would become necessary if
we were to conclude that the failure-to-investigate claim is
not procedurally barred – i.e., if we were to reach the merits
of the claim. For reasons to which we now turn, however, we
conclude that Hargrave-Thomas’ claim is procedurally barred.
A
It seems clear that the last state court to render judgment in
Ms. Hargrave-Thomas’ case rejected her failure-to-investigate
claim on procedural grounds. Ms. Hargrave-Thomas, it will

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No. 02-2152 Hargrave-Thomas v. Yukins 7
be recalled, did not present the claim on direct appeal before
raising it in her collateral motion for relief from judgment.
That omission violated a state procedural rule, Michigan
Court Rule 6.508(D)(3), which generally precludes relief
from judgment “if the motion . . . alleges grounds for relief,
other than jurisdictional defects, which could have been raised
on appeal from the conviction and sentence . . . .” The
Michigan Supreme Court, like the trial court and the court of
appeals, cited M.C.R. 6.508(D) in rejecting Hargrave-
Thomas’ failure-to-investigate claim.
Our precedents establish that the state supreme court’s one-
sentence order – an order saying simply that Ms. Hargrave-
Thomas “failed to meet the burden of establishing entitlement
to relief under MCR 6.508(D)” – “was based on an
independent and adequate state procedural rule.” Simpson v.
Jones, 238 F.3d 399, 407 (6th Cir. 2000); cf. Burroughs v.
Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002), modified, 35
Fed. Appx. 402 (6th Cir. 2002). Despite its brevity, the order
constituted a “reasoned” judgment that adequately explained
its procedural basis. Because the Michigan Supreme Court
“expressly stated” that Hargrave-Thomas’ claim was “barred
by MCR 6.508(D),” see Simpson, 238 F.3d at 408, the federal
courts may not review that claim absent “cause and prejudice”
or a “fundamental miscarriage of justice.” See Harris, 489
U.S. at 262-63.
B
The “cause” standard in procedural default cases “requires
the petitioner to show that ‘some objective factor external to
the defense impeded counsel’s efforts’ to raise the claim in
state court.” McCleskey v. Zant, 499 U.S. 467, 493 (1991)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Such
factors may include “interference by officials,” attorney error
rising to the level of ineffective assistance of counsel, and “a
showing that the factual or legal basis for a claim was not
reasonably available.” Id. at 493-94 (internal quotation marks
omitted). As we have seen, the district court concluded that
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2Our understanding of Michigan law on this point accords, we
believe, with that of the M ichigan Supreme Court. In rejecting Ms.
Hargra ve-Tho mas’ failure-to-investigate claim on the basis of procedural
default, that court necessarily determined that the refusal to hold a Ginther
hearing did not constitute “good cause” for the default. See M.C.R.
6.50 8(D )(3). In the Supreme Court’s view, therefore, the trial court was
not required to hold a hearing for the purpose of developing unraised
the denial of Ms. Hargrave-Thomas’ requests for an
evidentiary hearing constituted “cause” for her failure to raise
the failure-to-investigate claim on direct appeal. This
conclusion, we believe, was erroneous.
In People v. Ginther, 212 N.W.2d 922, 925 (Mich. 1973),
the Supreme Court of Michigan held that a criminal defendant
should move for a new trial and seek to make a separate
factual record in the trial court if the trial record does not
cover the claims he wishes to raise on appeal. Ms. Hargrave-
Thomas followed that procedure with respect to her original
claims of ineffective assistance – i.e., the claims that her trial
attorneys should have moved to suppress evidence and should
have objected to alleged prosecutorial misconduct. The trial
court declined to hold an evidentiary hearing (and the court of
appeals declined to remand for such a hearing), presumably
because the claims then in question could be disposed of on
the existing record.
Ms. Hargrave-Thomas’ position seems to be that she should
have been granted a Ginther hearing to develop an ineffective
assistance claim different from the claims she raised in her
motion for a new trial and on direct appeal. We find no basis
for this position in Michigan law. Ginther authorizes the
creation of a record to support claims which the defendant
“wishes to urge on appeal” – not claims which the defendant
has expressed no wish to urge on appeal. Ginther, 212
N.W.2d at 925. Neither Ginther nor, to our knowledge, any
other Michigan authority permits the use of an evidentiary
hearing to illuminate claims which have not been asserted or
to unearth claims of which the defendant may be unaware.2

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No. 02-2152 Hargrave-Thomas v. Yukins 9
claims.
3Ms. Hargrave-Thomas contends that her post-trial and appellate
counsel had no duty to investigate potential claims that were not apparent
from the trial record. Regardless of whether this contention (which the
state disputes) is correct, it seems clear that no co urt rule or trial court
ruling prevented Hargrave-Thomas’ counsel from cond ucting such an
investigation.
Had Ms. Hargrave-Thomas raised the failure-to-investigate
claim in her motion for a new trial, and had she requested a
Ginther hearing in connection with that claim, we have no
reason to suppose that her request would not have been
granted. Under the circumstances, we believe that it was Ms.
Hargrave-Thomas’ failure to raise the claim, and not any
misguided action of the state courts, that caused the
procedural default. Ms. Hargrave-Thomas never having
alleged ineffective assistance on the part of her post-trial and
appellate counsel, this failure does not constitute an
“objective factor external to [her] defense.” Carrier, 477 U.S.
at 488.
Ms. Hargrave-Thomas contends that she had no way of
knowing about her failure-to-investigate claim when she filed
her new trial motion; she contends, in other words, that “the
factual . . . basis for [the] claim was not reasonably available”
to her at that time. Id. We are not persuaded. Even if
Hargrave-Thomas had no meaningful communication with
her trial attorneys about the preparation of her case, she knew
from her attendance at trial that the attorneys did not call any
witnesses – a fact that might easily lead one to suspect
inadequate preparation. Moreover, the attorney representing
Ms. Hargrave-Thomas after the trial could have interviewed
the trial attorneys to discover any potential claims.3 And
Hargrave-Thomas was able to raise the failure-to-investigate
claim in her motion for relief from judgment, after all,
without having had the benefit of an evidentiary hearing.
10 Hargrave-Thomas v. Yukins No. 02-2152
4The district court found these affidavits sufficient to show prejudice
resulting from the alleged failure to investigate. Without commenting on
that finding, we note that the “fundam ental miscarriage of justice” test
requires a petitioner “ to make a stronger showing than that needed to
establish prejudice.” Schlup, 513 U.S. at 327.
We are not persuaded, in short, that the state courts’ refusal
to order a Ginther hearing constituted “cause” for Ms.
Hargrave-Thomas’ procedural default. Both “cause” and
“prejudice” must be shown when a habeas petitioner seeks to
excuse a procedural default, see Carrier, 477 U.S. at 494-95,
so we need not decide whether Hargrave-Thomas has shown
“prejudice” resulting from her trial attorneys’ alleged failure
to investigate. See Smith v. Murray, 477 U.S. 527, 533
(1986).
C
As we have said, a procedurally defaulted claim may be
reviewed in habeas proceedings despite the absence of a
showing of “cause” if such review is necessary to avoid a
fundamental miscarriage of justice. See, e.g., Coleman, 501
U.S. at 750. The “fundamental miscarriage of justice” test is
met only in the “extraordinary case” where “a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Carrier, 477 U.S. at 496; see Schlup v.
Delo, 513 U.S. 298, 321-22 (1995). “To establish the
requisite probability, the petitioner must show that it is more
likely than not that no reasonable juror would have convicted
him” in the light of the evidence that was not presented at
trial. Schlup, 513 U.S. at 327.
Applying this standard, we are unable to conclude that Ms.
Hargrave-Thomas has shown it probable that she is actually
innocent. Hargrave-Thomas relies primarily on five
affidavits, each of which was executed about six years after
the events at issue.4 None of the affiants testified live at the
hearing on the habeas petition.

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No. 02-2152 Hargrave-Thomas v. Yukins 11
According to the affidavit of Deborah Smulsky, a co-
worker, Ms. Hargrave-Thomas said on the day before the
murder that the decedent, Joe Bernal, had proposed marriage
the previous night. Hargrave-Thomas argues that this
evidence undercuts the prosecution’s theory as to motive –
namely, that Bernal had spurned Hargrave-Thomas. But there
is no necessary conflict between Ms. Smulsky’s testimony
and the prosecution’s theory. Hargrave-Thomas could have
misled Smulsky. Or Bernal could have proposed one day and
retracted the proposal the next. Because Smulsky’s testimony
does not compel a finding that Hargrave-Thomas lacked
motive, we think a reasonable factfinder could have convicted
Hargrave-Thomas despite the new evidence.
Ms. Hargrave-Thomas’ sons, Nathan and John, said in their
affidavits that their mother awoke them on the day of the
murder at 6:15 a.m. and 6:30 a.m. respectively, and that she
seemed to be behaving normally then. Dennis Hewitt,
Nathan’s guidance counselor, similarly swore that Hargrave-
Thomas was not upset or agitated when she met with him
between 7:30 and 8:00 that same morning. This evidence
might have aided the defense at trial by showing that
Hargrave-Thomas was calm and composed within an hour or
two after Mr. Bernal’s bed is thought to have been set on fire.
Calmness does not always mean innocence, however, and the
probative value of this evidence, we believe, falls short of
what is required.
Finally, Wesley Sibu, a newspaper delivery person, stated
in his affidavit that he saw “a man in a uniform” – possibly a
policeman or fire-fighter – at Mr. Bernal’s house at 4:30 on
the morning of the murder. The man told him that there had
been a fire, but Mr. Sibu did not see any police cars or fire
trucks. These facts could suggest that the “man in a uniform”
was the perpetrator. The district court found Sibu’s affidavit
“especially significant” because other evidence suggested that
another potential suspect, Ms. Hargrave-Thomas’ former
boyfriend, “may have been falsely representing himself as a
police officer.”
12 Hargrave-Thomas v. Yukins No. 02-2152
5M s. Hargrave-Thomas points to a polygraph test flunked by her
former boyfriend, Bob Stone. The results of that test indicate that Mr.
Stone answered one or more of the fo llowing questions untruthfully:
(1) Do you know for sure who killed Joe? (2) Did you kill Jo e? (3 ) Did
you assist in any way to cover up this crime? (4) Are you withholding
from me any information concerning the death of Joe? (All of Stone’s
answers were “no.”) Because the test did not determine which of the
questions were answered untruthfully, this evid ence does not directly
exculpate Hargrave-Thom as. It could prove nothing more, for example,
than that Hargrave-Thomas confessed to Stone.
There are substantial inconsistencies, however, between
Mr. Sibu’s affidavit – executed six years after the fact – and
statements he made closer in time to the murder and arson.
At Ms. Hargrave-Thomas’ preliminary examination, Sibu said
that he saw a police car and spoke with a police officer at 4:30
a.m., and that he was not sure whether that was the day of or
the day after the fire. He also said he was “positive” that Mr.
Bernal’s garage door was closed when he spoke with the
officer; in his affidavit he stated that the door was three-
quarters open. Moreover, Sibu told police on the day of the
fire that when he delivered the paper at about 4:30 that
morning “there were no cars in the driveway or the street, and
he didn’t notice anything unusual.” Presented with these
inconsistencies, a reasonable juror could easily find Mr.
Sibu’s latest account unpersuasive.
In sum, we cannot say that “no juror, acting reasonably,
would have voted to find [Ms. Hargrave-Thomas] guilty” in
the light of the proffered affidavits. Schlup, 513 U.S. at 329.
The other evidence cited in Hargrave-Thomas’ brief – none
of which directly exculpates her – also fails to compel a
finding of actual innocence.5 We conclude that the
“miscarriage of justice” exception does not excuse Hargrave-
Thomas’ procedural default.
The order granting Ms. Hargrave-Thomas’ petition for a
writ of habeas corpus is REVERSED, and the case is

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No. 02-2152 Hargrave-Thomas v. Yukins 13
REMANDED to the district court for entry of an order
dismissing the petition.
14 Hargrave-Thomas v. Yukins No. 02-2152
1Under Ginther, the Michigan Supreme Court requires a defendant
on direct appeal to request an evidentiary hearing in the state trial court
when it intends to raise ineffective assistance of counsel and lacks the
factual support in the record. People v. Ginther, 212 N.W.2d 922, 925
(Mich. 1973 ).
________________
DISSENT
________________
CLAY, Circuit Judge, dissenting. The question before this
Court is whether the district court erred in ruling that there
was cause and prejudice to excuse the procedural default of
Petitioner’s ineffective assistance of counsel claim. In
analyzing that claim, we must consider whether the trial court
erred in denying Petitioner’s three requests for evidentiary
hearings, which were needed to determine whether facts
existed to support the failure-to-investigate element of
Petitioner’s ineffective assistance of counsel claim. Because
Petitioner successfully established cause and prejudice to
overcome her procedurally defaulted claim, albeit through the
district court’s evidentiary hearing, I would affirm the grant
of Petitioner’s writ of habeas corpus.
Since a petitioner can generally demonstrate cause if she
can present a substantial reason to excuse the default, Rust v.
Zent, 17 F.3d 155, 161 (6th Cir. 1994), a showing of such
cause must ordinarily turn on whether the petitioner can
establish that some objective factor external to the defense
impeded counsel’s efforts to comply with the state’s
procedural rule. Murray v. Carrier, 477 U.S. 478, 486-89
(1986). Here, Petitioner argues that she was prohibited from
asserting her ineffective assistance of counsel/failure-to-
investigate claim on direct appeal since factual support was
lacking in the trial record. During Petitioner’s direct appeal,
she moved for a Ginther hearing three times, all which were
denied.1 Because those hearings were denied, the direct

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No. 02-2152 Hargrave-Thomas v. Yukins 15
appeal was limited to the issues contained in the trial record,
which excluded Petitioner’s failure-to-investigate claim. Id.;
see also People v. Avant, 597 N.W.2d 864, 870 (Mich. Ct.
App. 1999).
During proceedings in connection with Petitioner’s habeas
petition in federal district court, the court allowed time for
additional discovery and an evidentiary hearing. After
additional testimony and argument, the district court found
that Petitioner’s counsel was “manifestly and flagrantly
ineffective for failure to investigate or call witnesses or
present evidence.” At trial, Petitioner’s defense counsel,
Rene Cooper, and co-counsel, Nicholas Venditelli, received
no compensation for Petitioner’s case. The defense did not
present a theory of the case, made no opening statement and
put forth no evidence. During closing arguments, attorney
Cooper stated that the prosecution’s proof amounted to
nothing more than innuendos and speculation, and thus
formed an insufficient basis upon which to find petitioner
guilty. However, defense counsel subsequently conceded that
the prosecution had proven that “the opportunity was there,”
when referring to Petitioner’s alleged involvement in the
crime.
An ineffective assistance of counsel claim can supply the
cause that, together with prejudice, would excuse a procedural
default. Murray, 477 U.S. at 488. It is apparent from the
record that Petitioner’s trial counsel was inadequate and
ineffective, which should have been reasonably apparent to
the trial court, or any reviewing court. The state court may
have had insufficient evidence of ineffective assistance of
counsel to grant relief to Petitioner, but certainly had a
sufficient basis to grant a Ginther hearing.
Although once a defendant asserts a claim of failure-to-
investigate upon direct appeal, a Ginther hearing is warranted,
the grant of an evidentiary hearing is generally otherwise
discretionary. 212 N.W.2d at 925. There is a strong
presumption in favor of courts engaging in a factual analysis
16 Hargrave-Thomas v. Yukins No. 02-2152
when an ineffective assistance of counsel claim arises. See
People v. Barnett, 414 N.W.2d 378, 382 (Mich. App. Ct.
1978) (holding that the “Court will not ‘second-guess’ matters
of trial strategy, nor assess the competency of counsel through
the use of hindsight”); see also United States v. Brown, 276
F.3d 211, 217-18 (6th Cir. 2002) (deferring a review of an
ineffective assistance of counsel claim to a post conviction
proceeding when looking to dismiss a federal conviction,
where the record was not adequately developed). This Court
has previously recognized the importance of the development
of a full record when assessing an ineffective assistance of
counsel claim. Smith v. Hofbauer, 312 F.3d 809, 821, n.2
(citing Ginther for the proposition that “a defendant who
wishes to advance claims that depend on matters not of the
record can properly be required to seek at the trial level an
evidentiary hearing for the purpose of establishing his claim
. . . except in the rare case where the record manifestly shows
that the judge would refuse a hearing; in such a case the
defendant should seek on appeal, not a reversal for his
conviction, but an order directing the trial court to conduct the
needed hearing”). This was precisely the district court’s logic
in granting Petitioner time for discovery prior to its ruling on
her habeas petition.
Had any one of Petitioner’s three Ginther hearing requests
been granted, there is a substantial likelihood that Petitioner’s
ineffective assistance of counsel claim would have revealed
the ineffective assistance of counsel received by Petitioner as
a result of Petitioner’s trial attorney’s complete failure to
properly investigate defense witnesses and cross-examine
prosecution witnesses. The reason these facts were not
uncovered until the district court’s evidentiary hearing was
because of the improvident reasoning and decisions of the
state court, which deemed Petitioner’s ineffective assistance
of counsel claims to be without merit. The Respondent and
the majority opinion inappropriately speculate as to what
information would have come out of any one of Petitioner’s
three requested Ginther hearings had Petitioner not been
denied the hearings; however, Respondent, and the majority,

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No. 02-2152 Hargrave-Thomas v. Yukins 17
2Petitioner brings to the Court’s attention Massaro v. United States,
a Supreme Court holding stating that federal courts, in determining
federal habeas petitions for ineffective assistance of counsel, need not be
precluded from reviewing such a claim on collateral review when not
raised first on direct appeal. 538 U.S. 500, 504 -05 (2003). T he Court
discussed policy determinatio ns concerning why the requirement of a
direct appellate review prior to collateral review may undermine the
purpo se of such a claim when ad equate factual support in the trial record
may be lacking. Id. at 507 -08. T he Court also went on to distinguish this
procedural holding from that which would be followed by states, stating
that a “growing majority of state courts now follow the rule we adopt
today.” Id. at 508 (citing Commonwealth v. Grant, 813 A.2d 726, 735-38
n.16 (Pa. 20 02) (cataloging other states’ case law adopting this position)).
cannot say that these external factors were not the cause of
Petitioner’s procedural default.2
Furthermore, when Petitioner’s procedurally defaulted
claim is properly examined, Petitioner is entitled to a review
of the “cause and prejudice” analysis in which the Michigan
trial court engaged, with respect to Petitioner’s failure-to-
investigate portion of her ineffective assistance of counsel
claim. The majority opinion maintains that the district court
impermissibly considered the merits of Petitioner’s claim and
that we are to “review the federal court’s application of legal
rules” only, and are to reach the merits of Petitioner’s claims
only if we conclude that “the failure to investigate claim is
not procedurally barred.”
Nevertheless, it is well settled that a prisoner seeking
habeas relief in federal court must have presented the claim
upon which he seeks relief to the state appellate courts.
Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir. 2000). If such
a claim is procedurally defaulted in state court, that
procedural default carries over to federal court, precluding
habeas review. Simpson v. Jones, 238 F.3d 399, 405-06 (6th
Cir. 2000). In order for the claim to be barred in federal
court, however, the last state court rendering a judgment in
the case must have done so on adequate and independent state
grounds, evidenced by the existence of a state procedural bar
18 Hargrave-Thomas v. Yukins No. 02-2152
determining the judgment’s result. Id. (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)). Therefore, to decide
a procedurally defaulted claim the federal court must
“determine [whether] a petitioner failed to comply with a state
procedural rule; and it also must analyze whether the state
court based its decision on the state procedural rule.” Id. at
406.
It is undisputed that Petitioner’s first attempt to argue
ineffective assistance of counsel based on a failure-to-
investigate was raised in the state court collateral appeal and
not the direct appeal. Petitioner argues that the district court
correctly looked to the November 23, 1998, Michigan Circuit
Court ruling as the last court opinion to provide a reasoned
decision for the dismissal of Petitioner’s request for relief
regarding counsel’s failure to investigate, basing its denial on
the state prohibition in M.C.R. 6.508 (D), and also addressing
the merits of Petitioner’s claim as it performed a “cause and
prejudice” analysis. Respondent claims, and the majority
agrees, that the district court erred in looking to the November
1998 decision because the Michigan Supreme Court order,
dated April 28, 2000, was the last court decision in this matter
and did not address the cause or prejudice exceptions to a
procedural bar, or discuss the merits of Petitioner’s habeas
request.
This Court in Burroughs v. Makowski, 282 F.3d 410, 413
(6th Cir. 2002), held that the reviewing federal court, when
determining whether petitioner’s claim was procedurally
barred, must look to the last state court decision to see if
claims were denied based upon a state procedural bar, even if
the ruling was brief and did not explicitly reference the
particular section of the state statute on which its judgment is
based. Id. There, the last court to consider the matter, the
Michigan Supreme Court, based its denial on the state
procedural bar of M.C.R. 6.508 (D), but not specifically
subpart (3) of (D); however, this Court found that the
Michigan Supreme Court and the previous Michigan Court of
Appeals’ decisions presented sufficient explanations that their

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No. 02-2152 Hargrave-Thomas v. Yukins 19
rulings were based on the procedural default. Id. This case
was subsequently remanded for a “cause and prejudice”
analysis, to determine whether petitioner’s claim warranted
habeas relief, in view of the state procedural bar. Burroughs
v. Makowski, 35 Fed. Appx. 402 (6th Cir. 2002) (unpublished
table decision).
In the instant case, the district court’s findings are similar
to those in Burroughs, except here the court looked to the
previous Circuit Court’s November 1998 opinion instead of
the latest opinions of the Michigan Supreme Court and the
Michigan Appellate Court, since the procedural aspects of all
three opinions were duplicative. The early November 1998
opinion specifically stated that Petitioner’s claims were
subject to a “cause and prejudice” analysis precisely because
they were not brought up on direct appeal in accordance with
M.C.R. 6.508 (D)(3)(a)(b). The district court’s reliance on
the Michigan Court of Appeals or Michigan Supreme Court
would not have differed in result, as those decisions also
stated that Petitioner’s claim was denied “. . . because the
defendant has failed to meet the burden of establishing
entitlement to relief under M.C.R. 6.508 (D).” This Court
should then view these latter decisions of the Michigan Court
of Appeals and Michigan Supreme Courts as sufficiently
explaining their rulings based on the procedural bars,
Burroughs, 282 F.3d at 413, found in the previous November
1998 Circuit Court decision. See Couch v. Jabe, 951 F.2d 94,
96 (6th Cir. 1991) (citing Ylst, 111 S.Ct. at 2595 (“[W]here
there has been one reasoned state judgment rejecting a federal
claim, later unexplained orders upholding that judgment or
rejecting the same claim rest upon the same grounds”)).
Moreover, since Petitioner bears the burden of showing cause
and prejudice when needed, the November 1998 Circuit Court
decision addressed these issues, which the district court was
permitted to review. Simpson, 238 F.3d at 408.
The majority argues as though the district court’s analysis
of the latter Michigan state court opinions should have
deemed Petitioner’s claims procedurally barred and dismissed
20 Hargrave-Thomas v. Yukins No. 02-2152
with prejudice her petition for habeas relief; however, this
would be in contravention of this Court’s procedural default
analysis and the requirement of a “cause and prejudice”
determination for a petitioner attempting to establish an
exception to a procedurally defaulted claim when requesting
habeas relief. See Burroughs, 282 F.3d at 413. This is
precisely the review in which the November 1998 court’s
decision engaged, and the determination upon which the
district court reversed. Therefore, even if the latter Michigan
Supreme Court decision was reviewed to determine the
viability of habeas relief on the merits of Petitioner’s claim,
the district court would still need to review the reasoning of
the November 1998 decision, to find the reasoning for such
dismissal, or if no reasoning was present there, the court
would then have had to remand for a “cause and prejudice
analysis.” Burroughs, 35 Fed. Appx. 402.
I therefore respectfully dissent from the majority opinion
insofar as I believe Petitioner has shown “cause and
prejudice” to overcome the default of her claim of her
counsel’s failure-to-investigate, thus warranting the district
court’s grant of habeas relief.

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