I Will Follow (Up): The Duty To Investigate As It Relates To IAC

Like any attorney whose practice focuses on post-conviction work, I have a favorite passage from Strickland vs. Washington (what? Is that weird?). It states:

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. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances.

So why do I like this passage? Well, for one thing, it prevents an attorney who did shoddy or sloppy work at the trial level from then lazily invoking the word “strategy” to avoid being found to have been ineffective for doing so. Sure, you can fail to investigate and you can fail to follow up on information your client or their family provided, but you better hope you win or, if you lose, that that information would not have made a difference because there’s a difference between strategically channeling your resources elsewhere and just blowing something off.

That brings us to the recent decision by the Sixth Circuit in Upshaw v. Stephenson, 2024 WL 1320111 (6th Cir. March 28, 2024). Upshaw and a co-defendant were charged by the State of Michigan with robbing a gas station three and half miles away from his home at 3:35 a.m., based on an eyewitness’s identification of him as the robber (never mind that the robber had, “a t-shirt pulled over his nose and mouth.”) He told his first lawyer to speak with three alibi witnesses: his aunt and grandmother, whom he had awakened at 3:15 or 3:20 a.m. coming home from work and his girlfriend. The first attorney, who also made a habit of no-showing for hearings, did not speak with these witnesses and the family fired him two weeks before trial for failing to investigate. A new lawyer was retained and immediately informed of the three alibi witnesses, but he failed either to interview them or to call them as witnesses at Upshaw’s trial. Upshaw’s boss, who had driven him home from work at 3 a.m. and was able to testify about Upshaw’s Timberland boots, much different from the suspect’s purple gym shoes, was the only defense witness. Upshaw was convicted of armed robbery. His appeals and state habeas efforts went nowhere, but the district court in his federal petition granted relief.

Let’s start here: OMG! A §2254 petition was granted and affirmed! I want to take a quick side trip and talk about procedure for a second because virtually nobody understands this: prisoners under sentence from a state court may bring a habeas action under 28 U.S.C. §2254 as long as their claims identify a violation of their federal constitutional rights. Before the federal courts will entertain such a claim, though, the petitioner must exhaust their remedies in state court. How do they do that? It ain’t easy (or obvious). First, the petitioner must actually assert their claim as a violation of a federal constitutional right. This can be done in a variety of ways, e.g. by citing the United States Constitution in their briefing or by referring to cases whose holding is squarely based on federal constitutional principles. So you probably don’t have to say that your lawyer’s screw-ups were a violation of your Sixth Amendment rights, so long as you say they were a violation of your right to counsel (and just for good measure cite Strickland or any of the many other Supreme Court decisions concerning the effective assistance of counsel). Asserting the right is not enough, however; exhausting the claim means that it must be asserted to a trial level court (either the actual trial court or a post-conviction court) and then appealed. Generally, appealing means that the issue is identified to an appellate court, which does not have to give it full consideration, but must know you’re pressing it. So, for instance, a discretionary appeal application like a cert. petition to the state’s supreme court might identify the issue, but then be denied full consideration. That’s irrelevant, you gave the court a chance to consider the issue and you have exhausted the claim sufficiently then to bring it up in a §2254 petition. Normally, exhaustion means you have to raise the issue all the way to the highest court in the state, though there are exceptions to that, as in Georgia, where I practice, whose Supreme Court Rules specify that a claim is exhausted so long as it has been presented to the Court of Appeals on direct review.

After going through all of that, then all you have to do is persuade the district court to overrule the state courts on matters of constitutional interpretation. The court would have to find that the adjudication, “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” effectively creating double deference in an IAC claim: first, deference to the attorney in matters of strategy, second, deference to the state courts in their analysis of the attorney’s actions. Not an easy bar to clear, but as Upshaw shows, it can be cleared.

Speaking of Upshaw, the Sixth Circuit affirmed the district court’s grant of relief. The court agreed with the district court that Michigan’s Court of Appeals had, “impermissibly collapsed Strickland’s two-prong inquiry into a single question focused on the strength of Upshaw’s alibi testimony.” Upshaw’s aunt, none-too-pleased with his noisy arrival home after 3 a.m., testified that she spent quite a few minutes after that reaming him out for the same and could verify that he was home “between 3:20 and 3:30 a.m.,” with no car. Logic, then, had to intervene to persuade the court that Upshaw could not have made it three-and-a-half miles away to the gas station in order to rob it at 3:37 a.m..

Herein lay counsel’s unreasonable performance. Counsel both failed to interview these alibi witnesses and to notify the court that such witnesses existed, in conformity with the law in Michigan. He “offered no reasons for his actions” in doing so and thus, concluded the Sixth Circuit, his actions were unreasonable. From there, the court was a mere hop, skip and a jump from sewing up the claim and did, indeed, conclude that Upshaw was prejudiced, since the state’s case relied primarily on an eyewitness identification which was totally contradicted by Upshaw’s alibi. For good measure, the Sixth Circuit then found that the state had impermissibly struck African-American jurors in violation of Batson as well at Upshaw’s trial.

What is the lesson here? First, listen to your client. Your client knows more about their case than you ever will. Having enough humility to accept and believe that makes you a better advocate for your client and certainly will keep you from being identified as a defendant’s ineffective trial counsel (as happened in Upshaw). Yes, clients lie, they puff, they overpromise and underdeliver on evidence and judges have no patience for you to run out every ground ball and decisions sometimes must be made. Strickland acknowledges this: “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Once you know what the state’s case is, what their key pieces of evidence are and where the weak points might be, then talk to your client and if they identify witnesses or evidence that could put pressure on those weak points, you have duty at least to give it a look. You do not have a duty to talk to an alibi witness when your client says he killed someone in self-defense, nor to speak to someone who knows one of the state’s witnesses is lying about your client … if the state has three other witnesses ready to testify to the same thing. If state’s case is weak in an area, though, and that is your defense at trial and your client then says “I was busy getting cussed out by my auntie that night when I got home,” I think you have a duty to talk to Joe and see what’s going on.

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