Terry Ceasor v. John Ocwieja

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0372n.06
No. 15-1145
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jul 01, 2016
DEBORAH S. HUNT, Clerk
TERRY CEASOR,
Petitioner-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
JOHN OCWIEJA, Warden, EASTERN DISTRICT OF MICHIGAN
Respondent-Appellee.
BEFORE: COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.
CLAY, Circuit Judge. In 2005, a Michigan jury convicted Petitioner Terry Ceasor of
one count of first-degree child abuse, in violation of Mich. Comp. Laws § 750.136b(2), based on
allegations that he had caused his girlfriend’s 16-month-old son, Brenden Genna, to suffer a
subdural hematoma1 and retinal hemorrhaging.2 The prosecution’s theory was that Ceasor
inflicted these injuries by violently shaking or slamming Brenden while the baby’s mother,
Cheryl Genna, was out of the house. The linchpin of the prosecution’s theory was the expert
testimony of Dr. Holly Gilmer-Hill, who opined that Brenden’s subdural hematoma and retinal
hemorrhages were (1) symptoms commonly associated with shaken baby syndrome (“SBS”),
(2) “caused by an intentional act,” and (3) inconsistent with Ceasor’s version of the facts—that
Brenden’s injuries resulted from an accidental fall from the couch. Following Ceasor’s
1
A subdural hematoma is a localized collection of blood between the dura and the brain generally caused
by a break in the wall of a blood vessel.
2
Retinal hemorrhaging is bleeding from the vessels of the retina.
No. 15-1145
conviction, the trial court sentenced him to a term of two to 15 years in prison.3 On direct
appeal, the Michigan Court of Appeals affirmed Ceasor’s conviction and sentence, and the
Michigan Supreme Court denied leave to appeal.
In 2008, Ceasor filed a petition for a writ of habeas corpus in the United States District
Court for the Eastern District of Michigan. After staying Ceasor’s federal habeas proceedings
and permitting him to exhaust a claim for post-conviction relief in state court, the district court
ultimately issued an order and judgment denying Ceasor’s habeas petition. This timely appeal
followed.
Ceasor’s appeal raises two inextricable issues related to ineffective assistance of counsel.
The first issue, which is more accurately characterized as a sub-issue of the main issue before
this Court, is whether Ceasor has demonstrated the strength of his claim that his trial counsel
rendered constitutionally ineffective assistance by failing to retain an expert witness to rebut
Dr. Gilmer-Hill’s testimony due to his ignorance (or misapprehension) of Michigan law
governing public funding for indigent defendants. The second issue is whether Ceasor’s
appellate counsel rendered ineffective assistance by (1) relying solely on the trial record to
support Ceasor’s ineffective assistance of trial counsel claim and (2) failing to file a separate
motion to remand, pursuant to Mich. Ct. R. 7.211(C)(1), for an evidentiary hearing under People
v. Ginther, 212 N.W.2d 922 (Mich. 1973) (a “Ginther hearing”). For the following reasons, we
REVERSE the district court’s judgment denying habeas relief and REMAND for an evidentiary
hearing on the merits of Ceasor’s ineffective assistance of appellate counsel claim.
3
At the time Ceasor was tried and convicted, first-degree child abuse was punishable by “imprisonment for
not more than 15 years”; currently, it is punishable by “imprisonment for life or any term of years.” Compare Mich.
Comp. Laws § 750.136b(2) (2000), with Mich. Comp. Laws § 750.136b(2) (2012).
2
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I. BACKGROUND
Ceasor’s trial for first-degree child abuse lasted almost three days. Thereafter, the jury
deliberated for nearly two days, and requested a deadlocked jury instruction, before returning a
unanimous verdict of guilty. The following facts were averred to and established at trial.
A. Brenden’s Injuries and Treatment
In June 2004, Ceasor began dating Cheryl Genna, Brenden Genna’s mother. Both Genna
and Ceasor described 16-month-old Brenden as an “active” child. Genna also had an older
daughter, Derian, who was approximately seven-years-old at the time Brenden was injured.
At about 7:00 pm on October 2, 2004, Genna and her two children went to Ceasor’s
home in Port Huron, Michigan. They had visited the home before, and Genna’s children had met
and been alone with Ceasor “[s]everal times” in the past. At some point during the evening,
Genna and Derian went to Blockbuster and China Lite, leaving Ceasor alone with Brenden.
When they returned, Brenden was fine and showed no sign of injury.
On October 3, 2004, the day Brenden sustained his injuries, Genna woke up around
9:30 am and observed Ceasor coming back from giving Brenden his morning bottle. Both Genna
and Ceasor—who testified in his own defense at trial—stated that it was normal for Ceasor to
help care for Brenden by feeding him or changing his diaper. At around 10:30 am, Genna and
Derian went to McDonald’s to pick up breakfast while Ceasor remained at the house with
Brenden. Once again, there was no indication that Brenden sustained injuries of any kind during
the time he was alone with Ceasor.
Around 1:00 pm, Genna decided to drop Brenden off at his grandmother’s house so she
could take Derian swimming. However, when Ceasor saw that Brenden was still asleep, he told
Genna “just let him sleep, go ahead and go,” and Genna agreed to let Ceasor babysit while she
and Derian went swimming.
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Genna and Derian left Ceasor’s house around 2:30 pm, and were away from the house for
approximately an hour-and-a-half. The questions surrounding what occurred during this
hour-and-a-half formed the basis of the prosecution’s child abuse charge against Ceasor.
At trial, Ceasor testified to the following. Brenden was still sleeping for at least 20 to 30
minutes after Genna and Derian left the house, but Ceasor eventually brought Brenden out to the
living room so the baby could sit on the couch with him while he watched football. Initially,
Brenden was relatively inactive, but when Ceasor brought him a jar of Gerber bananas, fruit
snacks, and a granola bar from the kitchen, Brenden became excited and began to eat. After
cleaning up, and as he was returning from the kitchen, Ceasor saw that Brenden was standing on
the couch and facing the TV. Ceasor crawled up to the back of the couch on his hands and knees
and he and Brenden began playing a game called “gotcha,” with Ceasor crawling behind the
couch and Brenden running across the couch cushions. While they were playing, Ceasor noticed
that Brenden’s foot got stuck between the couch cushions a couple of times. Ceasor testified that
during their game, Brenden was laughing and they were “having a good time.”
When Brenden stopped playing in order to drink from his sippy cup, Ceasor “figured [he
was] occupied enough” and stepped away to go to the bathroom. However, as he was urinating,
Ceasor heard a thud that sounded like “two hits.” Upon hearing the thud, Ceasor accidentally
urinated on his hand, washed his hands without drying them, and ran out to the living room.
There, he found Brenden wedged between the couch and the coffee table. At trial, Ceasor
testified that there was “no way that [Brenden] went down in this position on his own,” saying:
It wasn’t like he was playing in this position. And, um, when I came out
and saw him there, his head was, his head was flung back as far as the neck could
go. And when I picked up [Brenden] he was like, it was like he was dead and he
was like limp noodles . . . . I tried talking to him. I sprayed some water off my
hands that were wet. Um, I touched his head. I, um, I tried everything I could do.
I was calling his name.
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No. 15-1145
(R. 7-8, PageID# 373).
Ceasor was on his way to call 911 when Genna and Derian came home from the pool.
Genna initially laughed off Ceasor’s statement that Brenden had fallen, thinking Ceasor was
joking. However, when Ceasor said, “I’m serious,” and Genna saw that Brenden was
unconscious, she began screaming the baby’s name. Rather than call an ambulance, Ceasor and
Genna decided to use Genna’s car to drive Brenden to the emergency room at Port Huron
Hospital, which was located a couple of minutes away from Ceasor’s house. Genna did not
observe any injuries to Brenden at this time, but noticed that his hair was wet.
Both Ceasor and Genna testified that Brenden regained consciousness shortly after they
arrived at Port Huron. Thereafter, Genna began calling family members, including her mother,
sisters, and Brenden’s father. Around the time Genna called Brenden’s father, Ceasor informed
the hospital staff that he was not Brenden’s father, but Genna’s boyfriend.
Dr. Christopher Hunt, Brenden’s attending physician at Port Huron and one of the
prosecution’s witnesses at trial, testified that when he initially assessed Brenden, the baby’s
pupils were unequal in size and he was unresponsive to verbal commands and painful stimuli.
Dr. Hunt did not observe or document any signs of trauma or injury, including retinal
hemorrhaging, and noted that Brenden’s breathing sounds were normal. The medical staff did
not have to intubate Brenden, but took a CAT scan that Dr. Hunt later reviewed with a
radiologist. The CAT scan revealed that Brenden had a subdural hematoma with a “slight mass
effect,” meaning that the blood beneath Brenden’s dura4 had “start[ed] to push the brain to the
opposite side” of his skull. Because a subdural hematoma is a serious injury, Dr. Hunt
administered an anti-seizure medication to prevent continued swelling and ordered that Brenden
4
The dura is the outermost membrane enveloping the brain and spinal cord.
5
No. 15-1145
be transferred to Children’s Hospital in Detroit, where there was a pediatric neurosurgeon on
staff.
When Dr. Hunt spoke to Genna and Ceasor about Brenden’s history, he noted Ceasor as
“the boyfriend.” Dr. Hunt also documented a change in Ceasor’s explanation about how
Brenden sustained his injuries, observing that although Ceasor originally said that Brenden had
fallen off the couch and hit his head on the coffee table, he later claimed that “he didn’t know
how [the injuries] occurred.” (R. 7-7, PageID# 295–96). Concerned that Brenden’s injuries
were the result of “possible child abuse,” Dr. Hunt testified that although subdural hematomas
are frequently sustained by patients who have fallen and hit their heads, Brenden lacked the
typical trauma associated with a fall-induced hematoma, including “soft tissue damage.” He also
conceded, however, that bruising does not always occur “right away.”
Both Ceasor and Genna stayed with Brenden while he was in Port Huron’s emergency
room. Eventually, some of Genna’s family members began to arrive, and Ceasor told Genna’s
sister that he “was there at the house with Brenden by [him]self” at the time the baby was
injured. Later, however, Genna informed a police officer from the St. Clair County Sheriff’s
Department, Deputy Michael Garvin, that she was present when Brenden was injured and had
picked him up after he fell. Genna gave this account while sitting approximately ten feet away
from Ceasor in the Port Huron waiting room, and after Genna told this lie, Ceasor told Deputy
Garvin and another police officer from the sheriff’s department, Detective Terry Baker, that he
had seen Genna “already kneeling next to” an unconscious Brenden just moments after the baby
fell. At trial, Genna testified that she lied to Deputy Garvin about being present when Brenden
was injured because she was “afraid,” “scared,” and “in shock.” She also testified that at the
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No. 15-1145
time of Brenden’s injuries, she was embroiled in a dispute with Brenden’s father over child
support. Both Genna and Ceasor testified that Ceasor never told Genna to lie to the police.
At some point while Brenden was hospitalized, Genna noticed an ovular “mark on the
back of [Brenden’s] head” that was two or two-and-a-half inches long and “had red dots on it.”
(R. 7-6, PageID# 232–33). Although Genna testified that she told the medical staff at Children’s
about the red mark on Brenden’s head, she could not recall whether she told medical personnel at
either hospital about a second injury—a bite mark—that she observed on his tongue.
Around 7:25 pm, an ambulance transported Brenden and Genna from Port Huron
Hospital to Children’s Hospital in Detroit.5 One of Brenden’s attending physicians at Children’s
was Dr. Holly Gilmer-Hill, the expert witness at Ceasor’s trial.
Although a resident treated Brenden the day he was transferred from Port Huron, Dr.
Gilmer-Hill discussed the baby’s injuries with his parents the following day, October 4, 2004.
During this conversation, Genna told Dr. Gilmer-Hill that Brenden had fallen off the couch.
Dr. Gilmer-Hill physically examined Brenden, but did not notice or document “any external
bruising or swelling of the scalp.” Her review of Brenden’s CAT scan revealed that he had
sustained a “subdural hemorrhage” with “shift,” i.e., pressure caused by blood and swelling.
Subsequently, Brenden was placed under observation and given Mannitol—a medication that
draws fluid out of the brain—in order to minimize swelling.
When she saw Brenden again on October 6, Dr. Gilmer-Hill learned that the Children’s
ophthalmology staff had found retinal hemorrhages in both of Brenden’s eyes. At trial,
Dr. Gilmer-Hill testified that “[i]t takes a good deal of force to cause [a retinal hemorrhage], and
the combination of subdural blood with retinal hemorrhage is child abuse. It is patently
5
Ceasor did not go with them, but instead went back to his house with Detective Baker, who took pictures
of Ceasor’s living room, couch, and coffee table that were later presented at trial.
7
No. 15-1145
demonic. [It] [i]s diagnostic for child abuse.” (R. 7-7, PageID# 319). When pressed on this
point by the prosecution, Dr. Gilmer-Hill opined that “being [severely] shaken or slammed onto
a surface, either hard or soft,” would cause retinal hemorrhaging. (Id.).
Brenden remained at Children’s Hospital between Sunday, October 3—the day he was
injured and admitted—and the following Friday, October 8. He was not prescribed any
medications at the time of or following discharge. After seeing Brenden on October 6,
Dr. Gilmer-Hill did not treat him again before he was released, and she admitted on
cross-examination that she only observed Brenden for approximately 25 minutes during the
entirety of his five-day stay. Dr. Gilmer-Hill also conceded that: Brenden’s skeletal x-ray did
not reveal any broken or fractured bones; there were no marks on Brenden’s body suggesting
that someone had vigorously held or shaken him; Brenden did not need surgery to treat his
injuries; and Brenden did not experience seizures while being treated at Children’s.
According to Genna, by the time he was discharged on October 8, Brenden was “doing
better” and was walking and talking. However, because Brenden was placed in his father’s
custody following discharge, Genna could not testify as to whether he experienced any injury-
related difficulties in the three months following his hospital stay. However, at the time of
Ceasor’s trial, which was held a little more than a year later after Brenden was injured, Genna
testified that Brenden was “doing great” and did not need to follow up or report for regular
check-ups at either hospital.6
6
At trial, Genna admitted that she did not “know for sure what the lasting effects [from Brenden’s injuries]
might be.” (R. 7-7, PageID# 274). For her part, Dr. Gilmer-Hill testified that it was difficult to surmise whether a
child Brenden’s age would experience any long-term effects from his injuries, but that such effects could include
headaches, seizures, or a learning disability.
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No. 15-1145
B. Trial Testimony Regarding the Cause of Brenden’s Injuries
At trial, the prosecution’s case against Ceasor was based almost exclusively on the expert
testimony of Dr. Gilmer-Hill. Relevant to this appeal, Dr. Gilmer-Hill opined that: SBS is an
“accepted” syndrome in the medical community; subdural hematomas and retinal hemorrhages,
taken together, are symptoms “diagnostic of child abuse”; one cause of retinal hemorrhaging is
shaking a child or slamming him against a hard or soft surface; Brenden’s injuries were not
accidental because “a fall from a couch onto a carpeted floor . . . [could] not account for [those]
injuries”; the degree of force that caused Brenden’s injuries was more akin to “a fall out of a
second story window” or “a high speed car accident” than a fall from a couch; and Ceasor’s and
Genna’s inconsistent accounts of whether Genna was present when Brenden was injured
suggested that Brenden had been abused because the abusers in SBS cases frequently offer
conflicting or inconsistent accounts about how the victim’s injuries occurred.
With regard to SBS generally, Dr. Gilmer-Hill testified as follows:
Typically[,] [SBS] involves shaking of [an] infant, usually a child less
than two years old. Violent shaking. Not just shaking a child . . . a little bit to
revive them or because they have fainted or something like that, but really
violently shaking the child such that the head whips back and forth on the body,
which is the axis.
The head is larger relative to the body in a child than it is in an adult, and
so it causes . . . a big lever of force, and it causes severe forces within the head.
The brain is not fixed within the skull and it can move. So, the brain slams back
and forth inside the skull. The bridging veins between the brain and the skull can
tear, which can cause a subdural hemorrhage. The[ victim] can [experience]
bleeding in the back of the eye, which is [a] retinal hemorrhage[,] from the force
of the shaking, and usually it involves an aspect of impact, too. Usually the child
is struck as well, or slammed down on a, a sofa or a soft surface, even against a
wall or thrown up against the ceiling. There are a lot of variations.
(R. 7-7, PageID# 314).
To support her opinion about the alleged link between subdural hematomas, retinal
hemorrhages, and SBS, Dr. Gilmer-Hill referenced, among other things, an experimental study
9
No. 15-1145
conducted by Dr. Ann-Christine Duhaime, an American neurosurgeon. On cross-examination,
Dr. Gilmer-Hill stated that Duhaime’s study simulated accidental injuries using cats and rats.
When Ceasor’s trial counsel asked Dr. Gilmer-Hill about a study conducted by forensic
pathologist Dr. John Plunkett, which found that children could sustain serious trauma or even
fatal head injuries from short falls, Dr. Gilmer-Hill rejected Plunkett’s study on the ground that it
was not “widely accepted” in her profession. Additionally, Dr. Gilmer-Hill disagreed with Dr.
Plunkett’s finding that children can sustain serious or fatal injuries “even on carpeted surfaces.”
On re-cross, Dr. Gilmer-Hill stated that her expertise on SBS was derived from American
neurosurgical literature (as opposed to literature published in other countries or by professionals
in other fields). When asked whether she habitually discounted the findings of medical studies
with which she disagreed, Dr. Gilmer-Hill stated that she had not “seen any well-done, rigorous
studies that disagreed with [her] theory [about SBS].” (Id. at 329–30).
Finally, Dr. Gilmer-Hill testified that Brenden’s injuries were non-accidental because the
history offered by Ceasor and Genna—a fall from the couch—was “not consistent with the
mechanism of the injur[ies].” (Id. at 315, 319–20). Although Dr. Gilmer-Hill conceded that she
was not an expert in biomechanics, she nonetheless testified that a child falling from a height of
five or six feet experiences “[m]uch less” gravitational force than a child being shaken. Further,
when asked about nurse’s notes generated at Children’s that both documented and diagrammed
that Brenden had “bruising to the forehead”—an injury potentially consistent with an accidental
fall—Dr. Gilmer-Hill testified that she did not rely on this part of Brenden’s history in
formulating her opinion because the notes were the “only place” that documented bruising and
she “[did not] see the bruise [her]self.” (R. 7-7, PageID# 323). Dr. Gilmer-Hill also claimed not
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No. 15-1145
to have seen an intake form from Children’s pediatric surgery service documenting that Brenden
had oral redness.
After the prosecution rested its case, Ceasor testified on his own behalf as the defense’s
only witness. Among other things, Ceasor corroborated Genna’s earlier testimony that Ceasor
frequently helped care for Brenden, had never expressed impatience with Brenden being an
“active” child, and had never physically disciplined Genna’s children or his own
thirteen-year-old son. Ceasor also specifically denied being upset with or feeling the need to
discipline Brenden on the day he was injured. At the conclusion of Ceasor’s testimony, the
defense rested its case.
C. Jury Deliberations and Verdict
The jury deliberated for two days, watching a video recording of Dr. Gilmer-Hill’s expert
testimony twice and requesting “further instructions” from the trial court after failing to reach a
unanimous verdict. At the end of the second day of deliberations, the jury returned a unanimous
verdict of guilty, and Ceasor was sentenced to a prison term of two to 15 years.
D. Procedural Background
On direct appeal, Ceasor’s appellate counsel argued, inter alia, that Ceasor had been
deprived of his right to effective assistance of counsel under the Sixth Amendment of the United
States Constitution because trial counsel “fail[ed] to contact, investigate, and urge Ceasor to hire
an expert to refute the medical testimony presented by the prosecution.”7 (R. 7-12, PageID#
572). More specifically, appellate counsel maintained that trial counsel’s failure to retain an
expert was objectively unreasonable because: (1) expert testimony could have “directly refuted”
Dr. Gilmer-Hill’s conclusion that Brenden’s injuries were non-accidental; (2) SBS “is a hotly
7
This is the only argument raised in Ceasor’s direct appeal that is relevant to the appeal before this Court.
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No. 15-1145
contested matter” in the scientific community; and (3) issues involving brain injury “are
generally beyond easy understanding by legal professionals or lay jurors,” “require[] precise
attention to the particular facts” of the case, and “demand[] consult[ation] with qualified
experts.” (Id. at 574–75). Appellate counsel also argued that Ceasor was prejudiced by trial
counsel’s failure to retain an expert because there was a “high probability” that the jury would
have rendered a verdict of not guilty if the defense had offered expert testimony “to refute the
prosecutor’s claims and support the defense[’s] theory that [Brenden] was injured during an
accidental fall.” (Id. at 575–76). Finally, appellate counsel asserted that even if Ceasor could
not afford to retain an expert, trial counsel should have requested public funding to pay for
consultation with an expert. See Mich. Comp. Laws § 775.15.
The Michigan Court of Appeals affirmed Ceasor’s conviction in an unpublished opinion
dated July 12, 2007. People v. Ceasor, No. 268150, 2007 WL 2011747 (Mich. Ct. App. July 12,
2007). At the outset, the court of appeals noted that “[b]ecause [Ceasor] did not move for a
Ginther hearing, [the court’s] review [wa]s limited to errors apparent on the record.” Id. at *3(footnote omitted). Indeed, appellate counsel failed to move for a Ginther hearing—which
allows a defendant to proffer facts or evidence in support of his ineffective assistance of counsel
claim—by filing a separate motion to remand under Mich. Ct. R. 7.211(C)(1)
(“Rule 7.211(C)(1)”).8 Instead, counsel represented that the “record alone show[ed] that [trial]
counsel was ineffective” and conditioned Ceasor’s request for a Ginther hearing on a finding that
the “record [wa]s lacking.” (R. 7-12, PageID# 575).
Examining only the trial record, the Michigan Court of Appeals found that even if there
were scientific studies that conflicted with Dr. Gilmer-Hill’s trial testimony, the existing record
8
See People v. Parker, No. 244118, 2004 WL 1392292, at *6 (Mich. Ct. App. June 22, 2004).
12
No. 15-1145
did not show “that an expert would have been willing to opine,” based on the specific facts in
Ceasor’s case, that Brenden’s injuries were not the result of being shaken or slammed or that his
injuries were accidental and unrelated to abuse. Ceasor, 2007 WL 2011747, at *4 (emphasis
added). The court also concluded that “the record [did] not support [Ceasor’s] contention that
his counsel failed to contact or try to procure an expert to support [the defense’s] theory” because
there was evidence that trial counsel sought and was granted additional time to consult an expert
witness. Id. In light of the evidence that trial counsel at least attempted to locate an expert
witness to testify on Ceasor’s behalf, as well as the “presumption that [trial] counsel’s decision to
not call an expert witness was a matter of sound trial strategy,” the court concluded that “[t]he
fact that SBS may be a disputed diagnosis does not mean that an expert would have found after
reviewing the evidence that [Brenden’s] injuries resulted from an accident.” Id. Following the
Michigan Court of Appeals’ affirmance of Ceasor’s conviction, the Michigan Supreme Court
denied leave to appeal on October 29, 2007. People v. Ceasor, 740 N.W.2d 257 (Mich. 2007)
On August 21, 2008, Ceasor filed a pro se petition for a writ of habeas corpus in the
district court. In February 2010, he filed an amended habeas petition through counsel. Pursuant
to the parties’ stipulation, however, the district court ultimately stayed Ceasor’s federal habeas
proceedings so that he could exhaust a claim for post-conviction relief in state court.
Before the state trial court, Ceasor filed a motion for relief from judgment arguing that
appellate counsel rendered ineffective assistance when he failed to file a separate motion to
remand for a Ginther hearing, pursuant to Rule 7.211(C)(1), in raising Ceasor’s ineffective
assistance of trial counsel claim. More specifically, Ceasor observed that the Michigan Court of
Appeals rejected his ineffective assistance of trial counsel claim on the grounds that there was
insufficient evidence in the “existing [trial] record” to rebut the presumption that trial counsel’s
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No. 15-1145
decision not to call an expert witness was a matter of “sound trial strategy.” Ceasor, 2007 WL
2011747, at *3–4. The court of appeals only reached this conclusion, Ceasor argued, because
appellate counsel neglected to file a proper motion to remand for a Ginther hearing under
Rule 7.211(C)(1) and instead relied on a trial court record that was “devoid of any facts related to
[trial] counsel’s failure to hire an expert.” Relatedly, Ceasor argued that if appellate counsel had
properly moved for a Ginther hearing under Rule 7.211(C)(1), Ceasor would have established on
remand that:
i. An expert would have informed the jury of the growing body of evidence
undermining the [SBS] hypothesis.
ii. An expert would have countered Dr. Gilmer-Hill’s many incorrect
assertions and would have prepared trial counsel to effectively
cross-examine Dr. Gilmer-Hill.
iii. An expert could have offered testimony that the injuries Brenden Genna
suffered were consistent with a short fall, inconsistent with shaking, and
unlikely to have been caused by intentionally applied force.
iv. Trial counsel failed to call an expert not because of trial strategy but solely
because [Ceasor] could not afford one, and trial counsel never considered
asking the Court for funds to hire an expert.
(R. 24-2, PageID# 1252).
To support these contentions, Ceasor proffered the affidavits of four experts who
reviewed his case pro bono: Dr. John Plunkett, a forensic pathologist; Dr. Peter Stephens, a
medical doctor board certified in anatomical pathology, clinical pathology, and forensic
pathology; Dr. Ronald Uscinksi, a clinical neurosurgeon with “special expertise in the literature
surrounding pediatric head injuries”; and Dr. Christopher Van Ee, a Ph.D. in biomedical
engineering. Together, these experts swore to the following. Since approximately 2004, the
theories underlying SBS have been challenged and called into question due to their purported
lack of a scientific basis. This is, at least in part, because the biomechanical and forensic
literature demonstrates that shaking without impact is unlikely to cause subdural hematomas or
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retinal hemorrhages. Instead, such injuries may result from an accidental impact, including a
short fall, or from a variety of natural causes. In fact, the gravitational force from the impact of a
short fall far exceeds the force from shaking, and short falls can result in serious or even fatal
head injuries. Further, injury biomechanics confirm that when a child is manually shaken, he or
she will suffer a neck injury or gripping-style chest injuries well before sustaining a subdural
hematoma or retinal hemorrhage.
With regard to Ceasor’s case in particular, the experts opined that Brenden’s injuries
were consistent with a short fall from the couch onto the coffee table or the floor and inconsistent
with abusive shaking. In evaluating Dr. Gilmer-Hill’s expert testimony at trial, the experts
asserted that Dr. Gilmer-Hill had misrepresented the findings in Dr. Duhaime’s study9 and given
the jury incorrect information regarding the biomechanics of infant head injury, short distance
falls, and abusive shaking. They also noted that Dr. Gilmer-Hill’s apparent misapprehension of
the literature on SBS and pediatric head injury likely stemmed, at least in part, from her limited
focus on American neurosurgical literature at the exclusion of international literature and
literature from other disciplines, including pathology, pediatrics, and biomechanics. Each of the
experts expounded on criticisms of SBS (or Dr. Gilmer-Hill’s understanding thereof) that existed
at the time of Ceasor’s December 2005 trial or earlier, and Drs. Plunkett and Van Ee expressly
represented that they would have offered the opinions included in their respective affidavits if
they had been asked to testify at trial.
9
One such misrepresentation was Dr. Gilmer-Hill’s statement that Dr. Duhaime’s University of
Pennsylvania study involved “cats and rats and different type[s] of experimental animals subjected to different levels
of force simulating accidental injury.” (R. 7-7, PageID# 315, 325, 327). In fact, a cursory examination of Dr.
Duhaime’s study reveals that she and her colleagues examined (1) “autopsy findings” for patients who had presented
with a history suspicious for child abuse and (2) “[m]odels of 1-month-old infants with various neck and skull
parameters” that had been equipped with accelerometers. See Ann-Christine Duhaime et al., The Shaken Baby
Syndrome: A Clinical, Pathological, and Biomechanical Study, 66 J. Neurosurg. 409, 409–13 (1987). The study
includes no reference to cats or rats.
15
No. 15-1145
Finally, Ceasor attached affidavits from himself and his uncle—who had accompanied
Ceasor to each of his meetings with trial counsel—swearing to the following. Trial counsel
informed Ceasor that he would need an expert witness “in order to succeed at trial due to the
complexity of the medical issues involved” in his case. (R. 24-2, PageID# 1368, 1371). At some
point during summer 2005, trial counsel consulted with a potential expert witness, Dr. Faris
Bandak. Thereafter, trial counsel asserted that Ceasor owed Dr. Bandak $1,500 for this initial
consultation and would need to pay an additional fee of at least $10,000 in order to compensate
Dr. Bandak for testifying at trial. When Ceasor informed trial counsel that he could not afford
these fees because he had already exhausted his and his family’s financial resources by retaining
an attorney, trial counsel “refused to entertain other options for expert testimony” and, as a
result, “never retained an expert for . . . trial.” (Id. at 1369, 1372, 1374). Trial counsel also
failed to pursue “other avenues to attain an expert for [Ceasor], such as petitioning the court for
fees for an expert due to [Ceasor’s] indigency.” (Id. at 1249).
Overall, Ceasor’s main argument before the trial court was that appellate counsel’s
failure to request a Ginther hearing “precluded [him] from presenting the evidence essential to
support his [ineffective assistance of trial counsel] claim.” (Id. at 1254). Such evidence
included: (1) testimony from expert witnesses revealing the flaws affecting Dr. Gilmer-Hill’s
trial testimony and affirmatively demonstrating that Brenden’s injuries were consistent with
Ceasor’s version of the facts; and (2) testimony from lay witnesses demonstrating that trial
counsel’s decision not to retain an expert witness was not a “reasonable trial strategy,” but
instead based on Ceasor’s inability to pay the fee of a specific expert. The final page of Ceasor’s
motion noted that “[t]his claim for relief has not been raised previously and could not have been
16
No. 15-1145
raised on direct appeal because [Ceasor] was represented on direct appeal by the appellate
attorney who provided the ineffective assistance that is the basis of this motion.” (Id. at 1255).
Citing Mich. Comp. Laws § 6.508(D) (“Rule 6.508(D)”),10 the trial court denied Ceasor’s
motion in a three-page order, reasoning that Ceasor’s ineffective assistance of appellate counsel
claim was merely his ineffective assistance of trial counsel claim “re-framed” in pursuit of a
different result. Consequently, the trial court did not assess whether appellate counsel performed
deficiently by failing to file a motion to remand for a Ginther hearing under Rule 7.211(C)(1), let
alone mention the affidavits filed with Ceasor’s motion. Relying on Rule 6.508(D), the
Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal.
On June 20, 2012, Ceasor filed a second amended habeas petition in the district court,
and the district court re-opened his federal habeas proceedings. As exhibits to his habeas
memorandum, Ceasor filed the same affidavits previously presented to (but apparently not
considered by) the trial court. On January 13, 2015, the district court issued an order and
judgment denying Ceasor’s habeas petition.
In its order denying habeas relief, the district court observed that the trial court failed to
address the merits of Ceasor’s ineffective assistance of appellate counsel claim “on the erroneous
ground that the claim had already been raised and decided against [Ceasor] by the Michigan
Court of Appeals on direct review.” Ceasor v. Ocwieja, No. 5:08-CV-13641, 2015 WL 164008,
at *4 (E.D. Mich. Jan. 13, 2015). Since the state courts generated no results or reasoning to
which the district court could defer on Ceasor’s ineffective assistance of appellate counsel claim,
the district court reviewed this claim de novo.
10
Rule 6.508(D) provides that a court may not grant relief to a defendant whose motion “alleges grounds
for relief which were decided against the defendant in a prior appeal.”
17
No. 15-1145
Ultimately, the district court found that appellate counsel’s decision not to file a separate
motion for an evidentiary hearing was a “reasonable recognition that the allegations of
ineffective assistance could be determined from the trial transcript alone.” Id. at *6 (citation and
quotation marks omitted). The court also found that even “assuming that appellate counsel was
ineffective for failing to move for a Ginther hearing,” Ceasor could not show prejudice because
he had not demonstrated that “a Ginther hearing would have been granted or that the Michigan
Court of Appeals would have reversed his conviction had such a hearing been held.” Id.Ceasor timely appealed the district court’s denial of his habeas petition and denial of a
certificate of appealability, and this Court granted a certificate of appealability as to Ceasor’s
ineffective assistance of appellate counsel claim.
II. DISCUSSION
A. Jurisdiction
Although Respondent John Ocwieja (the “Warden”), does not raise a jurisdictional
challenge to Ceasor’s habeas appeal, because Ceasor is no longer in prison, we find it necessary
to briefly discuss the issue of jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 95 (1998). As noted in our order granting a certificate of appealability, Ceasor was paroled
in October 2009. “The federal habeas statute gives the United States district courts jurisdiction
to entertain petitions for habeas relief only from persons who are ‘in custody in violation of the
Constitution or laws or treaties of the United States.’” Maleng v. Cook, 490 U.S. 488, 490
(1989) (citing 28 U.S.C. § 2241(c)(3); 28 U.S.C. § 2254(a)) (emphasis in original). The
Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner be
‘in custody’ under the conviction or sentence under attack at the time his [habeas] petition is
filed.” Id. at 490–91 (emphasis added). Because Ceasor filed the instant habeas petition in
18
No. 15-1145
August 2008, and remained in custody until October 2009, the district court had jurisdiction to
entertain Ceasor’s habeas petition under 28 U.S.C. §§ 2241 and 2254, and this Court has
jurisdiction to hear the appeal thereof pursuant to 28 U.S.C. § 1291.
Ceasor’s appeal raises a second jurisdictional question: whether his petition for habeas
relief has been mooted by his release from prison. See Demis v. Sniezek, 558 F.3d 508, 512 (6th
Cir. 2009) (“Because the exercise of judicial power under Article III of the Constitution depends
on the existence of a live case or controversy, mootness is a jurisdictional question.”).
“Article III, Section 2 of the United States Constitution authorizes the federal judiciary only to
hear cases or controversies.” Gentry v. Deuth, 456 F.3d 687, 693 (6th Cir. 2006).
“[T]herefore[,] federal courts may not exercise jurisdiction when the controversy has been
mooted, that is to say, when the ‘issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome.’” Id. (quoting Los Angeles County v. Davis, 440 U.S. 625,
631 (1979)) (internal quotation marks omitted). Nonetheless, we have previously recognized the
following with regard to habeas petitions in particular:
Although the Supreme Court had seemed to limit habeas relief to “the body of the
petitioner” in Fay v. Noia, 372 U.S. 391, 430–31 (1963), . . . the Court
subsequently expanded the writ’s scope in Carafas v. LaVallee, 391 U.S. 234, 237
(1968), stating that the petitioner’s challenge was not mooted by his release from
incarceration prior to his hearing because, “in consequence of his conviction, he
cannot engage in certain businesses; he cannot serve as an official of a labor union
for a specified period of time; he cannot vote in any election held in New York
State; he cannot serve as a juror.” Ibid. Therefore, “[o]n account of these
‘collateral consequences,’ the case is not moot.” Id. at 237–38.
Gentry, 456 F.3d at 693.
Carafas and its progeny, including several opinions issued by this Court, have recognized
that “the appropriate remedy for a writ of habeas corpus issued pursuant to an unlawful criminal
conviction includes relief not only from the conviction’s direct consequences (e.g. incarceration),
19
No. 15-1145
but also from its collateral consequences.” Id. (emphasis in original); see, e.g., Benton v.
Maryland, 395 U.S. 784, 790–91 (1969); Sibron v. New York, 392 U.S. 40, 55 (1968); Abela v.
Martin, 380 F.3d 915, 921 (6th Cir. 2004), abrogated on other grounds by Guilmette v. Howes,
624 F.3d 286 (6th Cir. 2010); Green v. Arn, 839 F.2d 300, 302 (6th Cir. 1988). Further, the
Supreme Court has “allowed federal courts to presume the existence of collateral consequences”
in cases where the petitioner is challenging an allegedly unconstitutional conviction, Gentry, 456
F.3d at 694–95, stating, “we have been willing to presume that a wrongful criminal conviction
has continuing collateral consequences (or, what is effectively the same, to count collateral
consequences that are remote and unlikely to occur).” Spencer v. Kemna, 523 U.S. 1, 8 (1998).
Accordingly, we will presume the existence of collateral consequences flowing from
Ceasor’s allegedly wrongful conviction. See id.; see also Leyva v. Williams, 504 F.3d 357, 363
(3d Cir. 2007). Because Ceasor’s habeas petition has not been mooted by his release from
prison, we proceed to the merits of his claim.
B. Standard of Review
In habeas proceedings, we review the “district court’s legal conclusions de novo and its
factual findings for clear error.” Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009) (citation
and quotation marks omitted). Our review of the state court’s decision, on the other hand, is
generally “governed by the standards set forth in the Antiterrorism & Effective Death Penalty
Act of 1996,” also known as “AEDPA.” Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir. 2000).
Under AEDPA, “a federal court shall not grant a petition for a writ of habeas corpus unless the
state court adjudication of the claim ‘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.’” Id. (quoting 28 U.S.C. § 2254(d)(1)). This highly deferential
20
No. 15-1145
standard of review is commonly known as “AEDPA deference.” See Fitzpatrick v. Robinson,
723 F.3d 624, 634, 637 (6th Cir. 2013).
AEDPA deference is warranted in those cases where the state court “put[s] forward a
merits-based ground for denying post-conviction relief”—even if the court also posits an
alternative, procedural ground for denying relief. Moritz v. Lafler, 525 F. App’x 277, 284 (6th
Cir. 2013) (citing Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010)); Brooks v. Bagley,
513 F.3d 618, 624–25 (6th Cir. 2008). However, this Court will review a federal habeas claim
de novo where there “there are simply no results [on the merits], let alone reasoning, to which
this [C]ourt can defer.” McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003); see also
Thompson v. Bell, 580 F.3d 423, 439 (6th Cir. 2009) (“Because the Tennessee state courts did
not adjudicate Thompson’s chemical competency claim on the merits, there is no state court
decision to which this Court can defer pursuant to 18 U.S.C. § 2254(d).”).
In the instant case, the trial court relied on Rule 6.508(D)(2) to deny Ceasor’s
post-conviction motion on the grounds that the claim raised by the motion had already been
raised before and decided by the Michigan Court of Appeals. As we have previously recognized,
a petitioner’s claims may be procedurally defaulted under Rule 6.508(D) where the petitioner did
not present his claims “in accordance with [Michigan’s] procedural rules.” Simpson v. Jones,
238 F.3d 399, 405–06 (6th Cir. 2000). However, as acknowledged by the district court and each
of the parties below, Ceasor’s ineffective assistance of appellate counsel claim was never
reviewed by the Michigan Court of Appeals, and therefore could not have been decided against
him. Cf. Mich. Comp. Laws § 6.508(D)(2). Instead, the court of appeals only addressed his
ineffective assistance of trial counsel claim, which itself was presented by his allegedly
ineffective appellate attorney. Nonetheless, after erroneously finding that Ceasor’s ineffective
21
No. 15-1145
assistance of appellate counsel claim had already been adjudicated on direct appeal, the trial
court neglected to assess whether appellate counsel performed deficiently by failing to file a
motion to remand for a Ginther hearing or whether such a failure was prejudicial. Additionally,
the court made no mention of Ceasor’s argument that appellate counsel was required to file a
separate motion to remand under Rule 7.211(C)(1), and failed to evaluate whether it was
unreasonable for appellate counsel not to file a motion to remand in light of the alleged absence
of facts in the trial record regarding trial counsel’s failure to hire an expert. In other words, the
trial court failed to review Ceasor’s ineffective assistance of appellate counsel claim on the
merits. Because the trial court did not adjudicate this claim on the merits, let alone provide any
reasoning by which this Court may assess its decision, the standard of review is de novo.11 See
Thompson, 580 F.3d at 439; McKenzie, 326 F.3d at 727.
C. Analysis
Under the Supreme Court’s holding in Evitts v. Lucey, 469 U.S. 387, 396 (1985), a
defendant has a “constitutional right to counsel on his first appeal [as of right].” Lutze v. Sherry,
392 F. App’x 455, 458 (6th Cir. 2010). This right encompasses “the right to the effective
assistance of counsel.” Evitts, 469 U.S. at 397 (emphasis added); see also Evans v. Hudson, 575
F.3d 560, 564 (6th Cir. 2009) (“On an appeal of right, a criminal defendant is entitled to effective
assistance of appellate counsel.”).
The two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984), governs
claims of ineffective assistance of counsel, including claims of ineffective assistance of appellate
11
The Warden asserts that there is “a strong argument . . . that the [trial] court effectively rejected Ceasor’s
[ineffective assistance of appellate counsel] claim . . . on the merits” because Ceasor’s ineffective assistance of trial
counsel and ineffective assistance of appellate counsel claims are “connected, overlapping, and derivative.”
Appellee’s Br. at 15–16. The Warden cites no authority for this proposition. Further, as explained below, see infra
Part II.C, the adjudication of an ineffective assistance of appellate counsel claim invariably requires us to evaluate
the merits of the underlying ineffective assistance of trial counsel claim.
22
No. 15-1145
counsel. See Evans, 575 F.3d at 564 (citing Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008)).
Strickland’s first prong requires Ceasor to demonstrate that “counsel’s representation was
deficient in that it ‘fell below an objective standard of reasonableness.’” Towns v. Smith, 395
F.3d 251, 258 (6th Cir. 2005) (quoting Strickland, 466 U.S. at 688). In assessing whether
counsel’s performance was deficient, this Court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance,” and Ceasor
“must overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland, 466 U.S. at 689 (citation and quotation marks
omitted). The second prong requires Ceasor to show “prejudice,” i.e., “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.In evaluating ineffective assistance of appellate counsel claims, “we assess the strength of
the claim appellate counsel failed to raise.” Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008).
Accordingly, we will grant habeas relief only if “there is a reasonable probability that inclusion
of the issue would have changed the result of the appeal.” McFarland v. Yukins, 356 F.3d 688,
699 (6th Cir. 2004).
1. Ineffective Assistance of Appellate Counsel
a. Deficient Performance
In support of his ineffective assistance of appellate counsel claim, Ceasor asserts that
“[a]ppellate counsel’s performance was deficient under Strickland because it was objectively
unreasonable for him to fail to file a separate motion for the evidentiary hearing that was both
required under the Michigan Court Rules and absolutely necessary to establish the record for the
23
No. 15-1145
claim of ineffective assistance of trial counsel.” Appellant’s Br. at 40; see also Reply Br. at 1–5.
In response, the Warden argues that “appellate counsel’s decision to seek reversal on the existing
record, rather than to file a separate motion seeking a remand, did not fall below an objective
standard of reasonableness . . . where appellate counsel specifically indicated in his brief that if
the appellate court found that the record was lacking, he requested a remand for a Ginther
hearing.” Appellee’s Br. at 17–18 (emphasis in original). For the reasons stated below, we reject
the Warden’s argument.
The Michigan Supreme Court has held that “[i]f a convicted defendant believes that his
attorney’s representation was below an objective standard of reasonableness, the appropriate
procedure is to seek a Ginther hearing.” People v. Smith, 581 N.W.2d 654, 660 (Mich. 1998).
“The purpose of a Ginther hearing is to allow a defendant to establish facts or evidence to assist
in making his claims.” Parker, 2004 WL 1392292, at *6 (citing Ginther, 212 N.W.2d at 925).
“A defendant is not entitled to a Ginther hearing as a matter of right,” but instead “must
demonstrate that there are factual issues regarding his or her counsel’s performance that require
further inquiry.” People v. Randolph, No. 293999, 2010 WL 5383526, at *3 (Mich. Ct. App.
Dec. 28, 2010).
Here, appellate counsel did not move for a Ginther hearing under Rule 7.211(C)(1).
Instead, counsel asserted the following in his brief:
[SBS] is a hotly contested matter as is evidenced by [trial] counsel’s
cross-examination of the prosecution’s medical experts. The complexity of brain
injury cases is unquestioned. The issues are generally beyond easy understanding
by legal professionals or lay jurors[, and] [h]andling these cases requires precise
attention to the particular facts and demands consult with qualified experts. It is
blatantly obvious from the record that a defense expert was needed. The record
alone shows that counsel was ineffective. But, if this Court finds that the record is
lacking, then Mr. Ceasor requests that this Court remand this case to the trial court
for a Ginther hearing.
24
No. 15-1145
(R. 7-12, PageID# 575) (emphasis added). Citing appellate counsel’s failure to file a separate
motion to remand, the Michigan Court of Appeals held that “[b]ecause [Ceasor] did not move for
a Ginther hearing, this Court’s review is limited to errors apparent on the record.” Ceasor,
2007 WL 2011747, at *3 (citing People v. Nantelle, 544 N.W.2d 667, 673 (Mich. App. Ct.
1996)). The court went on to state that “based on the existing record,” it could not conclude that
“an expert would have been willing to opine . . . , under the circumstances of [Ceasor’s case] and
given [Brenden’s] symptoms, [that Brenden] could not have suffered his injuries as a result of
being shaken or slammed or that his injuries could have been accidental.” Id. at *4. Thus, the
court opined that “any conclusion that an expert could have successfully challenged
Gilmer-Hill’s diagnosis is entirely speculative.” Id.
In order to evaluate the reasonableness of appellate counsel’s conduct, we must examine
the state of the law at the time of the appeal. See Jacobs v. Mohr, 265 F.3d 407, 418 (6th Cir.
2001) (“[T]he reasonableness of counsel’s performance is to be evaluated from counsel’s
perspective at the time of the alleged error and in light of all the circumstances”) (citation and
quotation marks omitted); see also, e.g., Goff v. Bagley, 601 F.3d 445, 464–66 (6th Cir. 2010)
(evaluating the reasonableness of appellate counsel’s conduct “[u]nder Ohio law at the time of
[the petitioner’s] direct appeal”). In People v. Nantelle, a published 1996 case, the Michigan
Court of Appeals held that where a defendant “[does] not move for a Ginther hearing” on his
ineffective assistance of counsel claim, the court’s review is “limited to mistakes apparent on the
record.” 544 N.W.2d at 673 (emphasis added). The court of appeals reiterated this rule in
subsequent opinions issued prior to Ceasor’s appeal, rejecting a defendant’s request for an
evidentiary hearing when it did not appear in a separate motion to remand under
Rule 7.211(C)(1). See, e.g., People v. Fisher, No. 262961, 2007 WL 283799, at *2 n.2 (Mich.
25
No. 15-1145
Ct. App. Feb. 1, 2007); People v. Carter, No. 232862, 2003 WL 887594, at *4 (Mich. Ct. App.
Mar. 6, 2003). In the instant case, when the court of appeals limited its review of Ceasor’s
ineffective assistance of trial counsel claim to “errors apparent on the record” based on appellate
counsel’s failure to move for a Ginther hearing, the court cited Nantelle in support. Nantelle, as
a published case, is precedentially binding on future panels of the Michigan Court of Appeals.
See Mich. Ct. R. 7.215(C)(2), (J)(1).
The Warden cites two unpublished 2013 opinions for the proposition that although it may
have been a “best practice” for appellate counsel to file a separate motion to remand under
Rule 7.211(C), “it [wa]s not necessarily deficient performance to fail to do so.” Appellee’s Br. at
28 (citing People v. Henry, Nos. 306449, 308963, 2013 WL 6331731, at *5 n.1 (Mich. Ct. App.
Dec. 5, 2013); People v. Moore, No. 303750, 2013 WL 1500886, at *1 n.2 (Mich. Ct. App.
Apr. 11, 2013)). We note, however, that the authorities cited by the Warden are unpublished and
therefore non-binding on the Michigan courts. See Mich. Ct. R. 7.215(C)(1). More importantly,
they do not represent the state of Michigan law at the time Ceasor’s direct appeal was decided in
2007.
Prior to and at the time of Ceasor’s 2007 appeal, the Michigan courts had consistently
held—in both published and unpublished opinions—that a defendant was required to move for a
Ginther hearing in order to avoid having his ineffective assistance of counsel claim adjudicated
solely on the trial court record. See Fisher, 2007 WL 283799, at *2 n.2; Carter, 2003 WL
887594, at *4; Nantelle, 544 N.W.2d at 673. Thus, the 2013 cases cited by the Warden merely
demonstrate that the Michigan courts have not been perfectly consistent in determining whether
to entertain requests for Ginther hearings included only in the appellate brief in the years after
26
No. 15-1145
Ceasor’s appeal.12 However, the Warden does not cite, and we have not found, any cases
decided prior to Ceasor’s 2007 appeal contradicting Nantelle’s holding that the review of a
defendant’s ineffective assistance of trial counsel claim shall be limited to mistakes apparent on
the record unless he moves for a Ginther hearing.
Importantly, the Michigan Court of Appeals has also rejected requests for Ginther
hearings on the separate and distinct ground that the attorney failed to file “a supporting
‘affidavit or offer of proof regarding the facts to be established at a hearing’” under
Rule 7.211(C)(1)(a). People v. Babby, No. 256308, 2005 WL 2679687, at *4 (Mich. Ct. App.
Oct. 20, 2005) (quoting Mich. Ct. R. 7.211(C)(1)(a)(ii)); see, e.g., J. Nicks, 2015 WL 9392729,
at *2; Singleton, 2009 WL 2170681, at *2; People v. Williams, 737 N.W.2d 797, 801 (Mich. Ct.
App. 2007); People v. Hamby, Nos. 252735, 252850, 2005 WL 1398361, at *5 (Mich. Ct. App.
June 14, 2005). In this case, appellate counsel did not file an affidavit or offer proof of facts that
he planned to establish if the case were remanded for a Ginther hearing. Thus, unlike the motion
for relief from judgment filed in the trial court several years later, Ceasor’s appellate brief did
not include affidavits from Ceasor or any potential experts, let alone explain whether there were
experts willing to testify in support of Ceasor’s version of the facts. The brief also failed to
explain why Dr. Bandak, the one expert trial counsel had contacted, was not retained as an expert
witness for trial. The Michigan Court of Appeals recognized this deficiency when it concluded
that “the record [did] not support [Ceasor’s] contention that his counsel failed to contact or try to
procure an expert to support [his] theory” because “the trial court granted [Ceasor] a stipulated
12
In this vein, we note that both before and after the 2013 cases cited by the Warden were decided, the
Michigan Court of Appeals has rejected defendants’ requests for a remand for a Ginther hearing where such a
request was made in the text of the appellate brief rather than in a separately-filed motion to remand pursuant to
Rule 7.211(C)(1). See, e.g., In re J. Nicks, No. 327352, 2015 WL 9392729, at *2 (Mich. Ct. App. Dec. 22, 2015);
People v. Singleton, No. 285477, 2009 WL 2170681, at *2 (Mich. Ct. App. July 21, 2009).
27
No. 15-1145
adjournment to consult an expert witness, and [Ceasor] then received additional adjournments
because his counsel had located an expert on SBS willing to review the evidence.” Ceasor, 2007
WL 2011747, at *4. Since the record made clear that Ceasor was granted additional time to
retain an expert but lacked any indication as to why Ceasor ultimately failed to present expert
testimony at trial, the court of appeals presumed that “defense counsel declined to present an
expert witness because any expert consulted was unwilling to support [Ceasor’s] position that
[Brenden’s] injur[ies] w[ere] accidental.” Id.In his brief before the Michigan Court of Appeals, appellate counsel asserted that “[t]he
record alone shows that [trial] counsel was ineffective.” (R. 7-12, PageID# 575) (emphasis
added). Approving this characterization, the district court found that:
[A]ppellate counsel’s decision to raise the ineffective assistance of trial counsel
claim without separately requesting an evidentiary hearing was a “reasonable
recognition that the allegations of ineffective assistance could be determined from
the trial transcript alone. No additional evidence was really necessary for the
[appellate] court to make a fair determination of the [S]ixth [A]mendment issue.”
Ceasor, 2015 WL 164008, at *6 (quoting Young v. Miller, 883 F.2d 1276, 1280 (6th Cir. 1989)).
This conclusion is clearly erroneous and plainly belied by the trial record. See United States v.
Byrd, 689 F.3d 636, 639–40 (6th Cir. 2012) (“A factual finding is clearly erroneous when the
reviewing court is left with the definite and firm conviction that a mistake has been made.”).
The trial record included testimony from: Brenden’s mother, Genna; three law
enforcement officers employed by the local sheriff’s department; an emergency room nurse at
Port Huron; the emergency room physician at Port Huron, Dr. Hunt; one of Brenden’s attending
physicians at Children’s Hospital and the prosecution’s expert witness, Dr. Gilmer-Hill; and the
defendant, Ceasor. Both Ceasor’s and Genna’s testimony—including their statements that
Ceasor had never expressed impatience with Brenden’s high energy level or physically
28
No. 15-1145
disciplined Genna’s children, as well as Ceasor’s account about playing “gotcha” with Brenden
on the couch immediately before the baby was injured—supported the conclusion that Brenden
was injured by an accidental fall from the couch while Ceasor was in the bathroom and Genna
was out swimming with her daughter. Testifying for the prosecution, Dr. Gilmer-Hill opined
that Brenden’s injuries were inconsistent with such a history and instead showed that Ceasor had
intentionally shaken or slammed Brenden during the hour-and-a-half that Genna was away.
Dr. Gilmer-Hill also testified, on direct and cross-examination, that SBS was an accepted
syndrome in her field and that Dr. Duhaime’s study had demonstrated that a short fall had less
force than shaking and could not cause a severe intracranial injury. Thus, although the trial
record showed that there were competing theories as to how Brenden sustained his injuries (with
only the prosecution’s theory supported by expert testimony), the record did not show whether
any expert would have been willing to testify about (1) SBS’ controversial status in the medical
community, (2) the alleged misinformation included in Dr. Gilmer-Hill’s testimony (including
her mischaracterization of Dr. Duhaime’s study), or (3) the plausibility of Ceasor’s version of the
facts and the implausibility of the prosecution’s theory of the case. The record also lacked any
indication as to why Ceasor requested an adjournment to confer with an expert, but ultimately
did not present any expert testimony at trial. See Ceasor, 2007 WL 2011747, at *4. The
Michigan Court of Appeals recognized these significant omissions and affirmed Ceasor’s
conviction based on the record at trial. Id. at *3–4, *6.
The United States Supreme Court has recognized that “the services of a lawyer will for
virtually every layman be necessary to present an appeal in a form suitable for appellate
consideration on the merits.” Evitts, 469 U.S. at 393 (emphasis added). In Ginther, the
Michigan Supreme Court held that “[t]o the extent his claim depends on facts not of record, it is
29
No. 15-1145
incumbent on him to make a testimonial record at the trial court level . . . which evidentially
supports his claim and which excludes reasonable hypotheses consistent with the view that his
trial lawyer represented him adequately.” 212 N.W.2d at 925 (citation omitted) (emphasis
added). At the time of Ceasor’s 2007 appeal, the Michigan Court of Appeals had made clear that
in order demonstrate the need for a Ginther hearing, the appellant was required to (1) move to
remand for such a hearing under Rule 7.211(C)(1), see Fisher, 2007 WL 283799, at *2 n.2;
Carter, 2003 WL 887594, at *4; Nantelle, 544 N.W.2d at 673, and (2) pursuant to the Rule’s
requirements, support the motion with an “affidavit or offer of proof regarding the facts to be
established at a hearing,” Mich. Ct. R. 7.211(C)(1)(a); see Williams, 737 N.W.2d at 801; Babby,
2005 WL 2679687, at *4; Hamby, 2005 WL 1398361, at *5. Appellate counsel neither filed a
separate motion to remand under Rule 7.211(C) nor supported his perfunctory request for a
remand, included only in his appellate brief, with an affidavit or proof of the facts that he
planned to establish at the Ginther hearing. Without the latter, the Michigan Court of Appeals
accurately characterized appellate counsel’s assertion that an expert could have successfully
challenged Dr. Gilmer-Hill’s testimony as “entirely speculative.” Ceasor, 2007 WL 2011747, at
*4. Finally, appellate counsel’s argument that the trial record alone demonstrated that trial
counsel was ineffective for failing to retain an expert witness was patently unreasonable. As
Ceasor points out, there was nothing in the trial record showing “Ceasor’s inability to pay for an
expert, why trial counsel did not present an expert, [or] what an expert might have said” at trial.
Appellee’s Br. at 41. Indeed, the trial record merely demonstrated that there was some
controversy surrounding SBS diagnoses; there was no indication that this controversy actually
affected the outcome of Ceasor’s case. See Ceasor, 2007 WL 2011747, at *3–4. Because
Ceasor’s claim of ineffective assistance of trial counsel depended on facts not in the trial record,
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No. 15-1145
we find that it was objectively unreasonable for counsel to argue that this claim was
demonstrated by the trial record alone. See Ginther, 212 N.W.2d at 925; Williams, 737 N.W.2d
at 801; Nantelle, 544 N.W.2d at 673. Accordingly, we reject the district court’s conclusion to
the contrary as clearly erroneous.
Overall, we find that appellate counsel performed deficiently by (1) deciding not to file a
separate motion to remand under Rule 7.211(C)(1), (2) failing to present an affidavit or offer of
proof under subsection (a) of the same Rule, and (3) representing that the record alone showed
that trial counsel was ineffective. For the aforementioned reasons, this conduct “fell below an
objective standard of reasonableness.” See Strickland, 466 U.S. at 688.
b. Prejudice
Having established deficient performance, Ceasor must also show prejudice. Ceasor
“need not show that counsel’s deficient conduct more likely than not altered the outcome,” but
instead must demonstrate “a probability sufficient to undermine confidence in the outcome.” Id.at 693–94. As indicated above, appellate counsel’s “failure to raise an issue on appeal could
only be ineffective assistance if there is a reasonable probability that inclusion of the issue would
have changed the result of the appeal.” McFarland, 356 F.3d at 699. Thus, the adjudication of
Ceasor’s ineffective assistance of appellate counsel claim requires an assessment of the strength
of his ineffective assistance of trial counsel claim. See Wilson, 515 F.3d at 707.
2. Ineffective Assistance of Trial Counsel
a. Deficient Performance
As noted by the district court, trial counsel could and did cross-examine Dr. Gilmer-Hill
on several issues, including: Dr. Plunkett’s study indicating that children have died as a result of
falls from a height as short as two or three feet; questions of whether Brenden’s injuries could
31
No. 15-1145
have been caused by an earlier trauma or a recent vaccination; and two articles published in the
American Journal of Forensic Medicine and Pathology discussing the effect of short falls on
children. Ceasor, 2015 WL 164008, at *3, *6. Relying on trial counsel’s “extensive[]”
cross-examination of Dr. Gilmer-Hill, the district court concluded that it was a reasonable trial
strategy to rely on this cross-examination in lieu of an expert witness and held that the
reasonableness of this strategy “defeat[ed] [Ceasor’s] ineffective assistance of trial counsel
claim.” Id. at *6. We disagree with this assessment.
It is well-established that a trial attorney’s arguments are not evidence. See Darden v.
Wainwright, 477 U.S. 168, 182 (1986); People v. Ullah, 550 N.W.2d 568, 575 (Mich. 1996).
Similarly, an attorney’s questions or examinations of witnesses are not evidence. See United
States v. Ross, 703 F.3d 856, 885 (6th Cir. 2012); United States v. Campbell, 317 F.3d 597, 607
(6th Cir. 2003); People v. Guyton, No. 317970, 2014 WL 6783764, at *1 n.1 (Mich. Ct. App.
Dec. 2, 2014); People v. Bunn, No. 182595, 1996 WL 33324020, at *1 (Mich. Ct. App. July 19,
1996). At trial, Dr. Gilmer-Hill testified that Brenden’s subdural hematoma and retinal
hemorrhaging were consistent with, and diagnostic of, child abuse. Dr. Gilmer-Hill also
characterized the defense’s alternative causation theories as unsupported by the medical
literature or not widely accepted. In other words, the only expert testimony presented in a child
abuse case with no direct evidence of abuse supported the prosecution’s version of the facts and
contradicted the defendant’s. Further, although trial counsel attempted to undermine Dr. Gilmer-
Hill’s credibility by highlighting some of the weaknesses affecting her opinion, he lacked the
ability to proffer evidence contradicting her opinions, including evidence that Ceasor’s version of
the facts was consistent with Brenden’s injuries. He also lacked the ability to refute Dr.
Gilmer-Hill’s allegedly erroneous assertions about causation, the biomechanics of short falls, and
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No. 15-1145
the etiology of Brenden’s subdural hematoma and retinal hemorrhaging. Nonetheless, as
indicated by the affidavits attached to Ceasor’s habeas petition, four experts have asserted that
Dr. Gilmer-Hill’s opinions were contradicted by both the medical literature and the facts of this
case, including the hospital records from Port Huron and Children’s. Thus, Ceasor has put
forward a strong argument that “expert testimony was not only integral to the prosecution’s
ability to supply a narrative of [Ceasor’s] guilt, it was likewise integral to [Ceasor’s] ability to
counter that narrative and supply his own.” See People v. Ackley, 870 N.W.2d 858, 867 (Mich.
2015).
In 2015, the Michigan Supreme Court decided a case involving several similar issues:
People v. Ackley. The prosecution’s case against Ackley arose from the “unexplained and
unwitnessed death of a child”: the three-year-old daughter of Ackley’s live-in girlfriend. Id. at
860. Ackley “denied hurting the child, and said that she must have died as the result of an
accidental fall” from the bed while she was napping alone in her room. Id. At trial, the
prosecution argued that Ackley “killed the child, either by blunt force trauma or [by] shaking
[her].” Id. At a Ginther hearing, trial counsel testified that he contacted only one expert in
preparation for Ackley’s case: Dr. Brian Hunter, a forensic pathologist. Dr. Hunter, however,
informed counsel that he was “not the best person” to testify for the defense because there was a
deep divide between medical experts “about diagnosing injuries that result from falling short
distances, on the one hand, and [SBS] . . . , on the other hand,” and Dr. Hunter “was on the
wrong side of this debate to be able to assist [Ackley].” Id. at 860–61. Dr. Hunter nonetheless
referred trial counsel to a well-known forensic pathologist, Dr. Mark Shuman, who “had
conducted substantial research on short falls” and was a “man of science” who could assess and
potentially support Ackley’s version of the facts. Id. at 861. Despite this referral, trial counsel
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No. 15-1145
never contacted Dr. Shuman, reached out to any other expert on short falls, or familiarized
himself with the medical literature about the diagnoses at issue in Ackley’s case. At the Ginther
following his trial and conviction for first-degree felony murder and first-degree child abuse,
Ackley proffered the affidavit of Dr. Werner Spitz, an expert in forensic pathology, who opined
that the “bruises on the child’s body were consistent with the intubation and CPR she received on
the day of her death” and “the child’s head injuries could not be attributed to [SBS] but were
caused by a likely accidental ‘mild impact.’” Id. at 861–62.
Analyzing Strickland’s first prong, the Ackley court concluded that “counsel performed
deficiently by failing to investigate and attempt to secure an expert witness who could both
testify in support of the defendant’s theory that the child’s injuries were caused by an accidental
fall and prepare counsel to counter the prosecution’s expert medical testimony.” Id. at 863. The
court reasoned that trial counsel knew that: “the prosecution’s theory of the case was that
[Ackley] intentionally caused the child’s unwitnessed injuries”; the prosecution “intended to
prove [this premise] with expert testimony”; and “[t]his testimony would require a response.” Id.Despite this knowledge, trial counsel consulted only with Dr. Hunter, an expert who identified
himself as being on the wrong side of the SBS debate to assist Ackley. Counsel also failed to
contact Dr. Shuman, despite Dr. Hunter’s referral, a choice he “did not have sufficient
information to legitimate” because he failed to investigate the law and facts of his case, including
any medical treatises or articles that could explain the child’s death. Id. The court noted that
counsel’s failure to adequately investigate his options for obtaining favorable expert testimony
was particularly unreasonable “in light of the prominent controversy within the medical
community regarding the reliability of [SBS] diagnoses.” Id. at 864.
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No. 15-1145
Ackley is instructive. Here, as in Ackley, because Brenden’s injuries were unwitnessed
(and Ceasor had no known history of child abuse), the prosecution needed an expert to support
its theory that the child’s injuries were caused by intentional shaking or slamming and could not
have resulted from an accidental fall. See id. at 860, 863, 866–67. Because the prosecution’s
causation theory (and rebuttal of Ceasor’s explanation) was based almost exclusively on the
expert testimony of Dr. Gilmer-Hill, Ceasor has proffered a strong argument that trial counsel
should have known that Dr. Gilmer-Hill’s testimony “would require a response.” See id. at 863.
Further, we have every indication that trial counsel did in fact understand that Dr. Gilmer-Hill’s
testimony would need to be met with countervailing expert testimony. At the preliminary
examination of Dr. Gilmer-Hill, which took place almost a year before Ceasor’s December 2005
trial, defense counsel13 represented to the trial judge that Ceasor’s trial was “going to be expert
against expert.” More damningly, two of Ceasor’s affidavits assert that trial counsel
acknowledged the need for expert testimony at attorney-client meetings, telling Ceasor that he
would need an expert witness “in order to succeed at trial due to the complexity of the medical
issues” in his case. (R. 24-2, PageID# 1368, 1371). Nonetheless, trial counsel failed to retain an
expert witness for trial. According to Ceasor, this decision was based on Ceasor’s inability to
pay Dr. Bandak’s fees of more than $10,000. Ceasor also asserts that after he informed trial
counsel that he could not afford Dr. Bandak’s fees, counsel “refused to entertain other options
for expert testimony” and “never retained an expert for . . . trial.” (Id. at 1369, 1372).
Under Michigan law, a court may “provide public funds for indigent defendants to retain
expert witnesses” under Mich. Comp. Laws § 775.15. People v. Agar, No. 321243, 2016 WL
13As acknowledged in Ceasor’s opening brief, Ceasor’s counsel at the preliminary examination was David
Black, while his counsel at trial was Kenneth Lord. It is unclear from the trial record whether Black and Lord had
any affiliation, and for the purposes of this appeal, we assume they did not.
35
No. 15-1145
399933, at *2 (Mich. Ct. App. Feb. 2, 2016); see also People v. Tanner, 671 N.W.2d 728, 729–
30 (Mich. 2003). Although “a trial court is not compelled to provide funds for the appointment
of an expert on demand,” Tanner, 671 N.W.2d at 730 (citing People v. Jacobsen, 532 N.W.2d
838, 839 (1995)), in this case, trial counsel never moved for funds to retain an expert in the first
place.
We are mindful of the Supreme Court’s admonition that “[t]he selection of an expert
witness is a paradigmatic example of the type of strategic choice that, when made after thorough
investigation of the law and facts, is virtually unchallengeable.” Hinton v. Alabama, 134 S. Ct.
1081, 1089 (2014) (quotation marks and brackets omitted) (emphasis added). However,
“strategic choices made after less than complete investigation are reasonable precisely to the
extent 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.” Strickland, 466 U.S. at 690–91. In this case,
trial counsel’s alleged error was failing to investigate Michigan law governing public funds for
indigent defendants that could have been used to either (a) pay Dr. Bandak’s $11,500 fee or
(b) compensate a different expert at a similar or lower rate. Recently, the Supreme Court found
that an analogous failure to investigate a “state statute providing for defense funding for indigent
defendants” constituted deficient performance where there was evidence that the “attorney knew
that he needed more funding to present an effective defense.” Hinton, 134 S. Ct. at 1088–89. In
Hinton, trial counsel put on an expert witness that he himself deemed “inadequate” because he
mistakenly believed he could not obtain more than $1000 under an Alabama statute providing for
state reimbursement of expenses incurred by an indigent criminal defendant. Id. The Supreme
Court found that counsel’s choice to hire a sub-par expert based on his misapprehension of the
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No. 15-1145
funding statute not only demonstrated that counsel was ignorant of the law, but also that he failed
to “perform basic research” regarding the availability of public funds. Id. at 1089. This conduct,
the Court held, constituted deficient performance. Id.Here, the affidavits sworn to by Ceasor and his uncle indicate that trial counsel’s decision
to try Ceasor’s case without an expert was made without investigating Michigan law. This is
because although trial counsel allegedly told Ceasor that the medical complexity of his case
necessitated hiring a defense expert, there is no record that counsel ever moved for funding under
Mich. Comp. Laws § 775.15 or pursued any other avenues for retaining an expert. Ceasor argues
that because trial counsel failed to investigate available options for paying an expert despite
Ceasor’s indigency, the jury’s determination of his guilt or innocence hung on the testimony of
the prosecution’s lone expert witness. Since Ceasor has never been granted an evidentiary
hearing on this issue, in state or federal court, we do not presume that this assertion will be borne
out by the evidence. However, we are persuaded that Ceasor has demonstrated the strength of
the first prong of his ineffective assistance of trial counsel claim—deficient performance. See
Wilson, 515 F.3d at 707.
b. Prejudice
With regard to the second prong, prejudice, Ceasor highlights several considerations
suggesting that there is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” See Strickland, 466 U.S. at 694. First,
“[t]here was no explanation for [Brenden’s] injuries beyond the theor[y] presented by the
expert[], and the prosecution produced no witnesses who testified that [Ceasor] was ever
abusive.” See Ackley, 870 N.W.2d at 865. Instead, witnesses who observed Ceasor at Port
Huron testified that he seemed “shaken up” and upset by Brenden’s injuries. Further, both
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Genna and Ceasor testified that Ceasor regularly contributed to Brenden’s care, had been left
alone with both of Genna’s children “several times” in the months preceding Brenden’s injuries,
and never used violence to discipline Genna’s children or his own child. Ceasor also testified
that there was nothing Brenden did on the day that he sustained his injuries that made Ceasor
angry or tried his patience. Second, Ceasor’s conviction “turned on the jury’s assessment of the
prosecution’s [causation] theory,” which itself depended on the expert testimony of
Dr. Gilmer-Hill. See id. Nonetheless, while the affidavits sworn to by Drs. Plunkett, Stephens,
Uscinksi, and Van Ee signal that an expert could have challenged Dr. Gilmer-Hill’s testimony
based on the specific facts averred to in Ceasor’s 2005 trial, the affidavits from Drs. Plunkett and
Van Ee indicate that an expert would have testified in support of Ceasor’s version of the facts if
trial counsel had sought their testimony.
The crux of the prosecution’s proof that Ceasor knowingly or intentionally caused
Brenden serious physical harm—an element of first-degree child abuse that the prosecution was
required to prove beyond a reasonable doubt, see Mich. Comp. Laws § 750.136b(2); People v.
Nowack, 614 N.W.2d 78, 82 (Mich. 2000)—was Dr. Gilmer-Hill’s expert testimony. At closing
argument, the prosecution went out of its way to point out that this testimony was
uncontroverted. Brenden’s injuries—a subdural hematoma and retinal hemorrhaging—were
medically complex and beyond the easy comprehension of the jury. Further, no amount of cross-
examination or lay witness testimony could have rebutted Dr. Gilmer-Hill’s medical opinions
that these injuries were medically consistent with abuse and inconsistent with an accidental fall.
Thus, we acknowledge, as the Ackley court did, that in many SBS cases “where there is ‘no
victim who can provide an account, no eyewitness, no corroborative physical evidence and no
apparent motive to [harm],’ the expert ‘is the case.’” 870 N.W.2d at 867 (quoting Deborah
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No. 15-1145
Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87
Wash U. L. Rev. 1, 27 (2009)) (emphasis in original).
D. The District Court’s Errors
Finally, we are unpersuaded by the district court’s reasons for concluding that even
“assuming that appellate counsel was ineffective for failing to move for a Ginther hearing,”
Ceasor cannot show prejudice because his ineffective assistance of trial counsel claim lacks
merit. Ceasor, 2015 WL 164008, at *6. As indicated above, to be afforded habeas relief, Ceasor
need only show that “there is a reasonable probability that inclusion of the issue would have
changed the result of the appeal.” McFarland, 356 F.3d at 699.
First, we reject as irrelevant the district court’s reliance on the fact that Ceasor did not
submit an affidavit showing that Dr. Bandak would have testified favorably at trial. Ceasor has
provided affidavits from four other experts—two of whom explicitly represented that they would
have testified favorably at his 2005 trial—as well as affidavits swearing that Dr. Bandak
forewent testifying at Ceasor’s trial because Ceasor could not afford to pay his fee. There is no
indication that Dr. Bandak declined to testify because he questioned Ceasor’s version of the
facts, and if the district court doubted the veracity of the statements included in Ceasor’s
affidavits, or sought additional factual development on this issue, the proper course would have
been to hold an evidentiary hearing. See McAdoo v. Elo, 365 F.3d 487, 500 (6th Cir. 2004)
(“[W]hen a defendant diligently seeks an evidentiary hearing in the state courts in the manner
prescribed, but the state courts deny him that opportunity, he can avoid [28 U.S.C.]
§ 2254(e)(2)’s barriers to obtaining a hearing in federal court.”); Stanford v. Parker, 266 F.3d
442, 459 (6th Cir. 2001) (“Generally, a habeas petitioner is entitled to an evidentiary hearing in
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No. 15-1145
federal court if the petition ‘alleges sufficient grounds for release, relevant facts are in dispute,
and the state courts did not hold a full and fair evidentiary hearing.’”).
Additionally, the district court’s finding that it was reasonable for trial counsel to
“extensively” cross-examine Dr. Gilmer-Hill in lieu of calling an expert witness is belied by trial
counsel’s alleged statements, in his meetings with Ceasor, that Ceasor would need an expert
witness “in order to succeed at trial due to the complexity of the medical issues” in his case.
Further, the trial record gives us reason to doubt the efficacy of trial counsel’s cross-examination,
which failed to highlight errors in Dr. Gilmer-Hill’s opinions that a well-prepared attorney would
have recognized.14 More importantly, even if trial counsel could effectively attack Dr.
Gilmer-Hill’s credibility through cross-examination, Ceasor has put forth a cogent argument that
because trial counsel knew that the prosecution would rely on Dr. Gilmer-Hill’s testimony to
show that the medical evidence contradicted and effectively disproved Ceasor’s version of the
facts, it was objectively unreasonable to fail to take steps to retain an expert. See Hinton, 134 S.
Ct. at 1088; Ackley, 870 N.W.2d at 865.
Finally, we reject as clearly erroneous the district court’s conclusion that there was
sufficient evidence against Ceasor, apart from Dr. Gilmer-Hill’s testimony, to preclude a finding
14
For example, at least one portion of trial counsel’s cross-examination of Dr. Gilmer-Hill appears to have
been as farcical as the testimony that preceded it. As noted above, Dr. Duhaime’s study examined autopsy findings
and models of one-month-old infants, not cats and rats. See supra n.9. Nonetheless, during cross-examination the
following exchange transpired:
Dr. Gilmer-Hill: “[Dr. Duhaime’s studies] involve[ed] clinical data, as well as cats and—”
Trial counsel: “Cats?”
Dr. Gilmer-Hill: “Yes, because they were experimental, you can’t, you know, drop people.”
Trial counsel: “Obviously.”
Dr. Gilmer-Hill: “You know, so they [sic] were cats and rats and different type[s] of experimental
animals subjected to different levels of force simulating accidental injury.”
Trial counsel: “And some of the criticism[s] of those [studies] is that cats and rats do not simulate
well in relationship to babies and 16 month olds, correct?”
Dr. Gilmer-Hill: “That’s true.”
(R. 7-7, PageID# 327).
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No. 15-1145
of prejudice, i.e., a reasonable probability that the outcome of Ceasor’s trial would have been
different if trial counsel had presented an expert to challenge Dr. Gilmer-Hill’s testimony. See
Byrd, 689 F.3d at 639–40. The district court relied on two types of evidence in support of this
conclusion. First, the district court observed that Ceasor and Genna told “inconsistent stories to
the police, which called into question their credibility.” Ceasor, 2015 WL 164008, at *7.
Although we agree with the general proposition that inconsistencies affecting a criminal
defendant’s version of events may undermine his or her credibility, see, e.g., United States v.
Edmond, 815 F.3d 1032, 1047 (6th Cir. 2016), the only testimonial inconsistency in this case is
that Ceasor and Genna changed their story about whether Genna was present when Brenden was
injured. However, both Ceasor and Genna admitted to police that Genna was away from the
house when Brenden was injured, the truth came out within days of Brenden’s injuries and more
than a year before Ceasor was tried, and the trial testimony showed that Ceasor never told Genna
to lie to the police. The trial record also demonstrates that Ceasor consistently told the police
and medical personnel that Brenden fell off the couch shortly after they played a game of
“gotcha,” and that Ceasor reiterated this account of how Brenden was injured even after he was
confronted with the inconsistency regarding Genna’s presence at the time of Brenden’s
injuries.15 And, perhaps most importantly, this inconsistency was plainly immaterial to
Brenden’s treatment because it did not alter the alleged cause of his injuries and no witness
testified that Brenden’s treatment would have changed had Ceasor told a different story about
whether Genna was present when the child was hurt.
15
We note one more change that Ceasor made to his account of how Brenden was injured: Ceasor
originally told Brenden’s attending physician at Port Huron, Dr. Hunt, that Brenden was injured when he fell off the
couch and hit his head on the coffee table, but later told Dr. Hunt that he did not know how Brenden was injured.
However, this statement is not necessarily inconsistent with Ceasor’s other statements about the cause of Brenden’s
injuries because, since Brenden’s injuries were allegedly unwitnessed and occurred while Ceasor was in the
bathroom, Ceasor could not have known, with certainty, how Brenden was hurt. In any event, the district court did
not rely on this inconsistency as a reason Ceasor could not show prejudice.
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No. 15-1145
The district court also relied on the purported lack of external trauma noted by Drs. Hunt
and Gilmer-Hill to support its conclusion that Ceasor could not show prejudice. However, Dr.
Hunt, who saw Brenden at Port Huron within hours of when he was injured, acknowledged that
bruising does not always occur “right away.” Dr. Gilmer-Hill, on the other hand, conceded that
bruising and oral redness were documented in the nurse’s notes at Children’s, but said she did
not rely on this part of Brenden’s history because the nurse’s notes were the “only place” that
noted bruising and she “didn’t see the bruise [her]self.” (R. 7-7, PageID# 323–24). In our view,
this isolated and contested16 evidence regarding the lack of external trauma to Brenden’s body,
standing alone and weighed against the evidence that Ceasor often served as a second caretaker
for Brenden, never physically disciplined Genna’s children or his own, and repeatedly offered a
consistent account to physicians and police about how he believed Brenden’s (unwitnessed)
injuries occurred, falls far short of being dispositive of the issue of Ceasor’s guilt. See Ackley,
870 N.W.2d at 865–66.
Based on the strength of Ceasor’s ineffective assistance of trial counsel claim, see
Wilson, 515 F.3d at 707, we find that habeas relief is warranted because there is a reasonable
probability that if appellate counsel had (1) properly moved to remand for a Ginther hearing
under Rule 7.211(C)(1) and (2) submitted an affidavit or other offer of proof in support of this
claim, such performance “would have changed the result of [Ceasor’s direct] appeal.” See
McFarland, 356 F.3d at 699. Having found that appellate counsel performed deficiently by
(1) arguing that the trial record alone supported Ceasor’s claim and (2) failing to comply with the
requirements of Michigan law in 2007, including Rule 7.211(C)(1)(a)’s “affidavit or offer of
proof” requirement, see supra Part II.C.1.a, we remand this case to the district court for an
16
As noted above, in addition to the nurse’s notes that documented oral redness and “bruising to the
forehead,” Genna testified she saw an ovular mark on the back of Brenden’s head and a bite mark on his tongue.
42
No. 15-1145
evidentiary hearing on whether Ceasor was prejudiced by appellate counsel’s deficient
performance.17
We note that because the state courts never considered Ceasor’s ineffective assistance of
appellate counsel claim on the merits, the evidentiary limitation articulated in Cullen v.
Pinholster, 563 U.S. 170, 180–82 (2011), and derived from 28 U.S.C. § 2254(d), does not bar the
district court from considering proof in support of Ceasor’s ineffective assistance of appellate
counsel claim at an evidentiary hearing, see Bies v. Sheldon, 775 F.3d 386, 394 n.5 (6th Cir.
2014); McClellan v. Rapelje, 703 F.3d 344, 351 (6th Cir. 2013). We also find that Ceasor
diligently sought an evidentiary hearing before both the trial court and the district court, and
therefore has complied with the requirements of § 2254(e)(2). See Williams v. Taylor, 529 U.S.
420, 432 (2000) (“Under the opening clause of § 2254(e)(2), a failure to develop the factual basis
of a claim is not established unless there is lack of diligence, or some greater fault, attributable to
the [petitioner] or the [petitioner’s] counsel.”).
In examining the issue of prejudice, the district court18 shall consider the affidavits
submitted with Ceasor’s habeas petition, the sworn statements of counsel, if available, and any
other evidence the district court finds relevant to the question of prejudice. At this juncture, we
offer no comment as to whether Ceasor will be able to demonstrate prejudice at the evidentiary
hearing. Should the district court find prejudice, it may enter a conditional writ of habeas to
17
We reject as unpersuasive the Warden’s argument that we should deny Ceasor’s request that this case be
remanded for an evidentiary hearing because his sought-after remedy is more limited in scope than one of the
remedies more typically granted in habeas cases involving claims of ineffective assistance of appellate counsel: a
new state court appeal. See 28 U.S.C. § 2106; United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999)
(observing that “the courts of appeals have broad discretion to issue general or limited remands”).
18
Ceasor requests that we remand for further proceedings before a new judge under the test articulated in
John B. v. Goetz, 626 F.3d 356 (6th Cir. 2010). Although 28 U.S.C. § 2106 gives us the authority to reassign a case
on remand, see Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006), “reassignment is an ‘extraordinary
power and should be rarely invoked,’” Sagan v. United States, 342 F.3d 493, 501 (6th Cir. 2003). Having examined
the factors articulated in Goetz, 626 F.3d at 365, we decline to reassign Ceasor’s case at this time.
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No. 15-1145
allow the state courts to consider a new appeal or a renewed request for a Ginther hearing on
Ceasor’s ineffective assistance of trial counsel claim. See, e.g., Goff, 601 F.3d at 472–73, 482
(granting a conditional writ of habeas corpus unless the state courts reopened the petitioner’s
direct appeal within 120 days to permit petitioner to raise his allocution claim); Johnson v.
Mitchell, 585 F.3d 923, 946 (6th Cir. 2009) (granting a conditional writ of habeas vacating the
petitioner’s death sentence unless the state courts conducted a new sentencing hearing within 180
days). If Ceasor cannot show prejudice, further habeas relief should be denied. See Strickland,
466 U.S. at 691–92.
IV. Conclusion
For the reasons stated in this opinion, we REVERSE the district court’s judgment
denying habeas relief and REMAND for an evidentiary hearing on the prejudice prong of
Ceasor’s ineffective assistance of appellate counsel claim.
44