McCray v. Vasbinder , 499 F.3d 568 ( 2007 )

RONALD LEE GILMAN, Circuit Judge,

concurring.

I write separately simply to point out that, had McCray timely petitioned for habeas relief in a pre-AEDPA world, I would have been inclined to affirm the district court’s grant of relief on the basis of McCray’s substantive claim of ineffective assistance of counsel. A review of the record reveals a grave deficiency in lawyer preparation. McCray’s counsel not only failed to interview or subpoena the three witnesses whose names were provided to him by McCray, he also ignored potential witnesses that actually contacted him in an attempt to assist in McCray’s defense. I believe that these failures were more likely the result of inexcusable inattention or negligence rather than a “reasoned strategic judgment.” See Wiggins v. Smith, 539 U.S. 510, 526, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

The Michigan Court of Appeals, however, was apparently untroubled by defense counsel’s inaction, concluding that “the failure to interview witnesses does not establish ineffective assistance of counsel absent a showing that the failure to interview resulted in the loss of valuable evidence which would substantially benefit the accused.” People v. McCray, No. 181017, at *3 (Mich.Ct.App. June 25, 1996). Had the state presented a stronger case, including some physical evidence linking McCray to the crime, I would be inclined to agree with the state court’s conclusion. But that is not the case here.

Unfortunately for McCray, even if we were able to reach the merits of his claim, the heightened deference required by AEDPA precludes us from granting habe-as relief. Although I respectfully disagree with the conclusion of the Michigan Court of Appeals, AEDPA requires more than my independent judgment that the state court reached an erroneous conclusion. See Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir.2006) (holding that this court may grant habeas relief under AEDPA only if the state court’s application of clearly established federal law is unreasonable, not simply wrong) (citing Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). I do believe that Michigan’s application of federal law — in this case, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — -was wrong, but I cannot fairly say that it was unreasonable. For this reason, I reluctantly concur.