Kevin Tucker v. JOHN CASON, Warden

The Honorable Danny C. Reeves, United States District Judge for the Eastern District of*
Kentucky, sitting by designation.
Although the State initially charged penile/vaginal penetration, the fourth count presented1
to the jury was digital/vaginal penetration.
1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0570n.06
No. 07-2481
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KEVIN TUCKER,
Petitioner-Appellee,
v.
JOHN CASON, Warden,
Respondent-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*
DANNY C. REEVES, District Judge. Respondent-appellant John Cason appeals the
district court’s conditional grant of petitioner-appellee Kevin Tucker’s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we reverse the district court’s
decision.
I.
Tucker was charged with four counts of first-degree criminal sexual conduct involving his
daughter, AT. The State alleged penile/oral penetration, penile/anal penetration, foreign object/anal
penetration, and penile/vaginal penetration. The acts were alleged to have occurred sometime in1

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the summer of 1996, when AT was five years old, shortly before Tucker and AT were involved in
a serious automobile accident.
Tucker was tried before a jury in Macomb County Circuit Court. At trial, AT testified that
she and her father were home by themselves watching television when he instructed her to remove
her clothes. She complied, and he removed his own clothes. Next, according to AT, Tucker put his
penis in her vagina, anus, and mouth. He then “shoved” the eraser end of a pencil “up [her]
private.”
Dr. Jay Eastman, a pediatrician specializing in the examination of child abuse victims,
testified as an expert for the prosecution. He had not examined AT but had reviewed a report
prepared by Dr. Norma Inocencio following her examination of AT in October 1999, after the abuse
allegations came to light. Dr. Eastman testified that Dr. Inocencio’s findings of irregularities in AT’s
hymen and anus were “compatible with sexual abuse.” On cross-examination, defense counsel asked
Dr. Eastman if he was aware that AT had been in a serious accident. Dr. Eastman responded that
he knew about the accident and believed AT had suffered a broken leg, but he was unsure of her
other injuries. Dr. Eastman acknowledged that medical records from the accident might be
significant for purposes of a sexual-abuse examination if, for example, the accident had involved “a
penetrating injury to the vagina.”
In fact, AT sustained extensive pelvic injuries in the accident, which occurred in mid-August
1996. Further, AT experienced vaginal bleeding as a result of her injuries. To determine the cause
of the bleeding, doctors performed manual explorations of her vagina, as well as a vaginoscopy.
These procedures entailed the insertion of a finger or medical instrument across AT’s hymen into

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her vagina, which could have resulted in hymenal trauma. However, this information was not
presented to the jury, presumably because defense counsel had not obtained AT’s medical records
from the accident.
Nevertheless, during closing arguments, Tucker’s attorney noted Dr. Inocencio’s failure to
review those records:
And you will remember the testimony regarding the fact that [AT] had had a serious
accident. And I asked the doctor, did you review — actually I asked him did the
doctor who wrote the report review the accident reports or the medical reports? And
the answer was there is no indication in that report that those reports had been
reviewed. And I suggest to you might that not be important to review reports? Do
we know that something of that nature didn’t happen during the course of the
accident?
In rebuttal, the prosecution argued:
Now, defense attempts to show about how the victim was in a serious car accident
so maybe something in that car accident may have caused her hymen to be missing
and deep anal fissures. Well, I’m not certain what kind of car accident that would be,
however, defense has the exact same subpoena powers as the prosecution as you can
tell, because they called witnesses as well, and there was not one doctor that got on
that stand that said when [AT] was in this car accident she was penetrated by
something. There is no evidence to say that. The only evidence to say that she was
penetrated is the evidence of [AT]’s testimony that said she was penetrated by her
father sexually. To go from there to some sort of car accident mishap is a quantum
leap that this jury should not make.
The jury convicted Tucker on the first three counts but found him not guilty of
digital/vaginal penetration. Tucker received concurrent sentences of 85 to 240 months of
incarceration on each count. He moved for an evidentiary hearing and a new trial, arguing that his
counsel was ineffective because he had not obtained AT’s medical records from the car accident.
The court granted Tucker’s request for an evidentiary hearing. Among the witnesses who testified

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AT was treated at Mount Clemens General Hospital immediately following the accident.2
She was then transferred to Children’s Hospital, where she remained for approximately two months.
Dr. Inocencio reviewed only the Mount Clemens records.
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at the hearing was Dr. Inocencio, who had since reviewed AT’s emergency-room records from the
accident. The pertinent portions of Dr. Inocencio’s testimony are discussed below.2
Following the hearing, the trial court determined that defense counsel’s failure to obtain the
medical records was not objectively unreasonable, and Tucker’s motion for a new trial was denied.
Tucker appealed his convictions to the Michigan Court of Appeals, asserting four grounds for relief.
The only claim relevant for present purposes alleged various deficiencies in his trial counsel’s
performance, including the failure to obtain AT’s medical records from the accident.
The state court of appeals affirmed Tucker’s convictions in an unpublished per curiam
decision. People v. Tucker, No. 232094, 2003 Mich. App. LEXIS 563 (Mich. Ct. App., Mar. 4,
2003). Tucker then filed an application for leave to appeal in the Michigan Supreme Court.
However, the application was denied. People v. Tucker, 469 Mich. 903, 669 N.W.2d 816 (2003).
In October 2003, Tucker filed the subject petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, raising the same four claims for relief asserted in his direct appeal.
The district court found merit in Tucker’s ineffective-assistance claim with respect to his
counsel’s failure to obtain the medical records. The court thus conditionally granted habeas relief,
ordering that Tucker be released unless the State elected to retry him on the underlying charges
within seventy days. Tucker v. Cason, No. 03-10254, 2007 U.S. Dist. LEXIS 78329, at *66 (E.D.

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Tucker also filed a Notice of Appeal, cross-appealing from those portions of the district3
court’s October 2007 Opinion and Order that were adverse to him. Tucker’s cross-appeal, No. 08-
10, was consolidated with the instant case. However, this Court found that Tucker had abandoned
three of his claims for relief and ultimately denied a certificate of appealability with regard to the
remainder of his ineffective-assistance claim. As a result, the only issue currently before this panel
is whether the district court properly granted habeas relief based on defense counsel’s failure to
obtain AT’s medical records from the auto accident.
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Mich., Oct. 23, 2007). This appeal followed. The district court granted the respondent’s motion3
to stay and Tucker’s request for release on bond. On November 29, 2007, Tucker was released on
a $50,000 bond pending resolution of the appeal.
II.
A district court’s decision to grant a habeas petition is subject to de novo review. Murphy
v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). Because Tucker’s petition was filed after the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (“AEDPA”), that statute’s provisions apply. See Murphy, 551 F.3d at 493. AEDPA permits
federal courts to grant habeas relief with respect to claims previously adjudicated on the merits in
state court only if the state court adjudication,
(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.
28 U.S.C. § 2254(d).
A state-court decision falls under the “contrary to” clause of § 2254(d)(1) “if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the

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state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision is also contrary
to clearly established federal law “if the state court applies a rule that contradicts the governing law
set forth in [Supreme Court] cases.” Id. at 405. Likewise, habeas relief is appropriate under the
“unreasonable application” clause if the state court “identifies the correct governing legal principle
from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Id. For purposes of the “unreasonable application” clause, it is not enough that a
federal habeas court finds the state court’s application of federal law to be erroneous or incorrect.
Instead, the application must be objectively unreasonable. Id. at 409-12.
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must establish
that the state court’s decision was contrary to, or involved an unreasonable application of, the two-
part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, a
defendant must first establish “that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. The second prong of the Strickland inquiry is whether the
defendant was prejudiced by his attorney’s deficient performance. Id. To satisfy the prejudice
requirement, 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.” Id. at 694. If the
defendant suffered no prejudice as a result of his attorney’s performance, it is irrelevant whether that

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The Supreme Court, recognizing that this will often be the case, has instructed that “there4
is no reason” to address the performance aspect first “or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697; see also
Baze v. Parker, 371 F.3d 310, 321 (6th Cir. 2004) (finding it unnecessary to address the issue of
attorney competence where the defendant could show no prejudice from counsel’s arguably deficient
performance). Thus, because we find no reasonable probability that the outcome of Tucker’s trial
would have been different but for his attorney’s failure to obtain the medical records, we need not
evaluate counsel’s performance.
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performance was deficient. Id. at 697.4
Although the state court’s decision must be consistent with Supreme Court precedent, the
state court need not cite or even be aware of applicable Supreme Court cases, “so long as neither the
reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3,
8 (2002). However, a decision is contrary to clearly established federal law where the state court
recites the Strickland test but applies a more demanding burden of proof to the prejudice inquiry.
Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006) (citing Williams, 529 U.S. at 405-06). In such
cases, we review the merits of the ineffective-assistance claim de novo, unconstrained by § 2254(d).
Id. (citing Williams, 529 U.S. at 406).
Here, the state appeals court did not cite Strickland but recognized the two-prong test set
forth in that decision: “A successful claim of ineffective assistance of counsel requires a defendant
to ‘show that counsel’s performance was deficient and that there is a reasonable probability that, but
for the deficiency, the factfinder would not have convicted the defendant.’” Tucker, 2003 Mich.
App. LEXIS 563, at *5 (quoting People v. Snider, 239 Mich. App. 393, 423-24, 608 N.W.2d 502

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In Snider, the Michigan Court of Appeals cited People v. Pickens, 446 Mich. 298, 312, 5215
N.W.2d 797 (Mich. 1994), in which the Michigan Supreme Court cited Strickland.
8
(2000)). Nevertheless, the court ultimately applied a stricter standard for assessing prejudice:5
Moreover, we note that developing the possibility that the accident could have
resulted in physical conditions resembling those commonly associated with sexual
abuse would only have presented an alternative explanation for the complainant’s
physical condition. It would not have eliminated the possibility of sexual
penetration, nor would it have called into question the victim’s compelling testimony
against defendant. Accordingly, we cannot conclude that, but for trial counsel’s
failure to refute the prosecution’s expert testimony, defendant would not have been
convicted. Consequently, we reject defendant’s contention that counsel was
ineffective as to this issue.
Id. at *13-*14 (internal citations omitted).
As the district court correctly noted, “[t]he standard for determining prejudice is not whether
effective advocacy would have ‘eliminated the possibility’ that the defendant committed the crime
or that the petitioner ‘would not have been convicted.’” Rather, Tucker was merely required to show
a reasonable probability that his attorney’s errors affected the outcome of his case. Tucker, 2007
U.S. Dist. LEXIS 78329, at *44 (citing Strickland, 466 U.S. at 694). Thus, the state-court decision
was contrary to Strickland, and the merits of Tucker’s claim must be reviewed de novo. See Fulcher,
444 F.3d at 799. Under any standard of review, however, Tucker has made an insufficient showing
of prejudice.
Tucker argues, and the district court concluded, that AT’s medical records from the accident
would have provided the jury with an alternative explanation for the irregularities described in Dr.
Inocencio’s report. See Tucker, 2007 U.S. Dist. LEXIS 78329, at *45. In particular, the district
court found it significant that the jury heard “no alternative explanation for the injuries to AT’s

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The applicable statutory definition of “sexual penetration” includes “any . . . intrusion,6
however slight, of any part of a person’s body or of any object into the genital or anal openings of
another person’s body.” MCL § 750.520a(r); see MCL § 750.520b(1)(a). Thus, the State was not
required to prove that Tucker penetrated AT forcefully.
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genitals.” Id. at *46. Yet Tucker was acquitted of the one charge to which such an alternative
explanation would have been relevant: the digital/vaginal penetration charge. Thus, presentation of
evidence that “the doctors treating AT after the car accident inserted fingers and medical instruments
into her vagina to determine the cause of the vaginal bleeding,” would not likely have resulted in a
more favorable outcome for Tucker.
The only information in the medical records of apparent relevance to the charges of which
Tucker was convicted is a notation that AT had “good sphincter tone” following the automobile
accident. At first glance, this notation, as well as the absence of any indication of trauma to AT’s
anus at the time of the accident, appears to contradict Dr. Inocencio’s later finding that AT had deep
anal fissures consistent with sexual abuse. However, Dr. Inocencio testified at the evidentiary
hearing that sexual abuse would not necessarily affect a child’s sphincter tone; rather, sphincter tone
would only be damaged in cases of severe abuse involving the use of force. Moreover, according6
to Dr. Inocencio, sphincter tone is better determined through the use of a colposcope, a procedure
generally not undertaken in emergency-room examinations.
More significantly, however, the medical records provide no alternative explanation for the
anal fissures noted in Dr. Inocencio’s report. Dr. Inocencio testified that there “definitely” would
have been an indication in the medical records if anal bleeding or fissures had been observed
following the automobile accident. A child-abuse expert who also reviewed the accident records

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after trial, Dr. Stephen Guertin, found nothing of significance in the records with respect to the anal-
penetration charges. While the absence of anal trauma after the accident tends to undermine the
State’s theory as to when the abuse occurred, it is even more damaging to an argument that the
injuries noted by Dr. Inocencio were the result of the accident and not sexual abuse. Thus, the
hospital records would have been of little, if any, help in countering the medical evidence presented
by Dr. Eastman regarding the anal-penetration charges and, in fact, would not have supported the
argument Tucker now contends his trial counsel should have pursued.
In any event, there was little to refute. The extent of Dr. Eastman’s trial testimony regarding
AT’s anal injuries, given during direct examination, was as follows:
A The other thing that Dr. Inocencio mentioned is her anal findings.
Under anus,
“Done in a ‘supine’ position with child holding on to both flexed knees that
are flexed at hips.”
“Irregular slightly crythematous perianal folds. Deep fissures at 3, 4, 6, 8, 9,
12 o’clock. Immediate moderately prominent venous congestion at 4, 6, 8,
9-10 o’clock is seen. Linear vertical line extending posteriorly from 6
o’clock. No lesions, bleeding, discharge or bruising noted.”
Again, compatible with abuse.
Q And is that deep fissures at certain areas of the clock, what is that?
A That’s areas where the mucosa has broken and then healed back together,
leaving a fissure.
Q Okay.
And is that something you would normally see in a nine year old?

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A No, it’s not.
Given this relatively brief discussion, as well as Dr. Inocencio’s later testimony that good sphincter
tone is not necessarily inconsistent with sexual abuse and the lack of any other information contained
in the medical records relevant to the charges of conviction, we cannot find that it is reasonably
probable the jury would have reached a different conclusion had the records been presented at trial.
Defense counsel’s failure to obtain the records therefore resulted in no prejudice. Thus, his
performance, regardless of whether it was up to professional standards, did not constitute ineffective
assistance under Strickland.
III.
For the foregoing reasons, we reverse the district court’s grant of habeas relief.

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