Upshaw v. Stephenson

                UNITED STATES DISTRICT COURT                             
                EASTERN DISTRICT OF MICHIGAN                             
                      SOUTHERN DIVISION                                  

LAFAYETTE DESHAWN                                                         
UPSHAW,                                                                   

         Petitioner,              Case No. 20-cv-12560                   
                                  Honorable Linda V. Parker              
v.                                                                        

GEORGE STEPHENSON,                                                        

         Respondent.                                                     
_________________________/                                                

   OPINION AND ORDER GRANTING PETITION FOR A WRIT OF                     
                       HABEAS CORPUS                                     

    Petitioner, Lafayette Deshawn Upshaw, is currently serving between twenty 
and forty-two years in state prison for a conviction arising from a May 28, 2014 
armed robbery.  Two witnesses were available to testify that Upshaw was at home 
during the robbery; however, his trial attorneys failed to investigate and call them 
at trial.  Claiming that his Sixth Amendment rights were violated due to counsel’s 
ineffectiveness, as well as other errors in the proceedings, Upshaw filed an 
application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 in 
September 2020.  (ECF No. 1.)  On May 2, 2022, the Court granted summary  
judgment in favor of Upshaw on one of his claims and ordered that an evidentiary 
hearing be held with respect to two others.  (ECF No. 19.)  That hearing was held 
on May 17, 2022.                                                          
    For the reasons set forth below and in its previous opinion and order (ECF 
No. 19), the Court is granting Upshaw’s Petition as to three of his claims.  As 

already discussed in the Court’s May 2 decision, and as Respondent concedes, 
Upshaw’s Sixth Amendment rights were violated when the trial court used facts 
not found by the jury when calculating the sentencing guidelines.  As also 

discussed in that decision, and will be further discussed below, the State court 
unreasonably assessed the facts when evaluating whether Upshaw’s two trial 
attorneys were ineffective in failing to investigate and present alibi witnesses.  Two 
individuals had evidence that, when placed in context with judicially noticeable 

facts, indicated that Upshaw was at home when the armed robbery occurred.  
Upshaw repeatedly tried to get his attorneys to raise an alibi defense.  Yet trial 
counsel failed to investigate and/or present Upshaw’s alibi witnesses despite the 

fact that there was no strategic reason for failing to do so.  Finally, the State court 
unreasonably applied Supreme Court precedent when rejecting Upshaw’s claim 
that the prosecution exercised peremptory challenges based on race in violation of 
Batson v. Kentucky, 476 U.S. 79 (1986).                                   

I.   Standard of Review                                                   
    The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)  
provides the standard of review applicable to Upshaw’s application for habeas 

relief:                                                                   
    An application for a writ of habeas corpus on behalf of a person in  
    custody pursuant to the judgment of a State court shall not be granted 
    with respect to any claim that was adjudicated on the merits in State 
    court proceedings unless the adjudication of the claim–              

         (1) resulted in a decision that was contrary to, or involved an 
    unreasonable application of, clearly established Federal law, as     
    determined by the Supreme Court of the United States; or             

         (2) resulted in a decision that was based on an unreasonable    
    determination of the facts in light of the evidence presented in the 
    State court proceeding.                                              

28 U.S.C. § 2254(d)                                                       
    A state-court decision satisfies the “contrary to” clause if it “applies a rule 
that contradicts the governing law set forth in [the Supreme Court’s] cases” or 
“confronts a set of facts that are materially indistinguishable from a decision of 
[the Supreme] Court and nevertheless arrives at a result different from [its] 
precedent.”  Williams v. Taylor, 529 U.S. 362, 405-06 (2000).  Likewise,  
    [a] state-court decision is an unreasonable application of clearly   
    established federal law if it “correctly identifies the governing legal 
    rule but applies it unreasonably to the facts of a particular prisoner’s 
    case,” [Williams, 529 U.S.] at 407-08 . . . or if it “either unreasonably 
    extends or unreasonably refuses to extend a legal principle from     
    Supreme Court precedent to a new context,” Seymour v. Walker, 224    
    F.3d 542, 549 (6th Cir.2000).                                        

Murphy v. Ohio, 551 F.3d 485, 494 (6th Cir. 2009).  The Supreme Court has 
cautioned, however, that “evidence introduced in federal court has no bearing on 
§ 2254(d)(1) review.”  Cullen v. Pinholster, 563 U.S. 170, 185 (2011).  Thus, 
where, as here, “a claim has been adjudicated on the merits by a state court, a 
federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the 
record that was before that state court.”  Id.                            

    Finally, with respect to the “unreasonable determination” clause, 28 U.S.C. 
§ 2254(d)(2)                                                              
    the question . . . “is not whether a federal court believes the state 
    court’s determination was incorrect but whether that determination   
    was unreasonable—a substantially higher threshold.”  Schriro v.      
    Landrigan, 550 U.S. 465, 473 . . . (2007). . . .  [And] “the petitioner 
    must show that the resulting state court decision was ‘based on’ that 
    unreasonable determination.”  Rice v. White, 660 F.3d 242, 250 (6th  
    Cir. 2011).                                                          

Hill v. Shoop, 11 F.4th 373, 384 (6th Cir. 2021); see also 28 U.S.C. § 2254(e)(1) 
(explaining that “determination[s] of . . . factual issue[s] made by a State court 
shall be presumed to be correct” but that “th[is] presumption of correctness [can be 
rebutted] by clear and convincing evidence”).                             
    In conducting the § 2254(d) analysis, courts must be mindful “that even a 
strong case for relief does not mean the state court’s contrary conclusion was 
unreasonable.”  Richter, 562 U.S. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 
75 (2003)).  Rather, under AEDPA, “[a] state court’s determination that a claim 
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 
disagree’ on the correctness of the state court’s decision.”  Id. at 101 (citing 
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).                        
II.  Revisiting the Court’s May 2 Decision                                
    The Court finds it necessary to address two issues before proceeding further 

with its analysis of Upshaw’s claims.  First, in a supplemental brief filed after the 
evidentiary hearing, Respondent argues that the Court erred by “redetermine[ing] 
whether a state rule was properly applied” in relation to the affidavit of one of 

Upshaw’s alibi witnesses.  (ECF No. 24 at Pg ID 1640.)  While the Court did 
indicate in its May 2 decision that the affidavit satisfied the requirements of 
Michigan Court Rule 2.119(B)(1), contrary to the Michigan Court of Appeals’ 
conclusion, that did not factor into the Court’s conclusion that the State court’s 

analysis of Upshaw’s ineffective assistance claim was unreasonable.  Instead, it 
was the State court’s factual determination that the witness’s statement did not 
contain certain information that this Court found objectively unreasonable because 

the statement did contain that information.  (ECF No. 19 at Pg ID 1522.)  Stated 
differently, this Court was not communicating that the Michigan Court of Appeals’ 
interpretation or application of state law was “unreasonable”—as that term is used 
in § 2254(d).  (See ECF No. 19 at Pg ID 1522.)  Instead, what the Court found 

objectively unreasonable, as contemplated in the habeas statute, was the State 
court’s reading of the witness’ statement.  (Id.); see also 28 U.S.C. § 2254(d)(2) 
(providing for the grant of habeas relief where the State court’s adjudication of a 
claim “resulted in a decision that was based on an unreasonable determination of 
the facts in light of the evidence presented in the State court proceedings”). 

         Next, as will be discussed more fully below, even without the   
evidence from the May 17 evidentiary hearing, and even when viewed under  
AEDPA’s deferential standard of review, the Court concludes that Upshaw is 

entitled to habeas relief.  Based only on the record before the Michigan courts, 
it is clear that the State courts unreasonably adjudicated Upshaw’s ineffective 
assistance of counsel and Batson claims.                                  
III.  Background                                                          

    A.   Upshaw’s Convictions and Sentence                               
    Shortly after 8:00 a.m. on May 28, 2014, Upshaw and Darrell Miles Walker 
“were arrested in the process of committing a home invasion at a residence” 

located at 19475 Washburn Street in Detroit, Michigan.  (ECF No. 6-9 at Pg ID 
623; ECF No. 6-14 at Pg ID 863.)  They “were caught as they exited separate 
windows of the house,” from which they “had attempted to steal several items of 
jewelry.”  (ECF No. 6-14 at Pg ID 863.)  Upshaw was charged with second-degree 

home invasion in violation of Michigan Compiled Laws § 750.110a(3); larceny in 
a building in violation of Michigan Compiled Laws § 750.360; and resisting and 
obstructing in violation of Michigan Compiled Laws § 750.81d(1).  (ECF No. 6-6 

at Pg ID 327.)                                                            
    Several hours before Upshaw and Walker were arrested, an armed robbery 
occurred at 1920 West Fischer Service Drive, a gas station approximately ten miles 

south of the invaded home. 1  (ECF No. 6-2 at Pg ID 231-32; ECF No. 6-14 at Pg 
ID 862-63.)  Tina Williams was the only employee working at the time.  (ECF No. 
6-8, Pg ID 523.)  She reported that around 3:30 a.m., just after she had returned to 

her bullet-proof cashier booth from attempting to help a strangely behaving man 
with the gas station’s coffee machine, another man entered the station and robbed a 
female customer at gunpoint.  (ECF No. 6-14 at Pg ID 863.)                
    The second man, whose face was obstructed by a t-shirt, then demanded that 

Williams give him the money in the cash register.  (Id.; ECF No. 6-8 at Pg ID 489-
90.)  When Williams refused, the man tried to kick open the door of the cashier 
booth and fired several shots in her direction, which were blocked by the bullet-

proof glass.  (ECF No. 6-14 at Pg ID 863.)  The first man “shouted at her to open 
the access door, indicating that . . . [she] should do so in order to simply end the 
situation and get [the shooter] out of the gas station,” but Williams “stood her 
ground and did not comply.”  (Id.)  The shooter eventually “gave up and ran out of 

the gas station.”  (Id.)  After the altercation, the first man, who had remained at the 

1 The distance between the house and the gas station is a fact of which the Court 
may take judicial notice.  See Livingston Christian Sch. v. Genoa Charter Twp., 
858 F.3d 996, 1008 (6th Cir. 2017); see also, e.g., Hund v. Hund, No. 334313, 
2017 Mich. App. LEXIS 1082, at *14 (Mich. Ct. App. July 6, 2017) (taking  
judicial notice of distance and extrapolating travel time).               
coffee machine and had not run when the shooter’s gun was pointed in his  
direction, approached the booth and told Williams that she should call the police.  

(Id.)  He “then fled in the same direction as the shooter.”  (Id.)        
    A few days later, Williams identified Walker as the coffee machine man and 
Upshaw as the shooter in separate photographic lineups.  (Id.; ECF No. 6-8 at Pg 

ID 500-04.)  Upshaw thereafter was charged with five additional crimes: armed 
robbery in violation of Michigan Compiled Laws § 750.529; carrying a dangerous 
weapon with unlawful intent in violation of Michigan Compiled Laws § 750.226; 
possession of a firearm during the commission of a felony (“felony-firearm”) in 

violation of Michigan Compiled Laws § 750.227b; assault with intent to commit 
murder in violation of Michigan Compiled Laws § 750.83; and assault with intent 
to do great bodily harm less than murder in violation of Michigan Compiled Laws 

§ 750.84.  (ECF No. 6-2 at Pg ID 229.)                                    
    Upshaw ultimately pleaded guilty to second-degree home invasion but  
elected to go to trial on the gas station robbery charges.  (ECF No. 6-7 at Pg ID 
340-41; ECF No. 6-11 at Pg ID 757.)  He was tried jointly with Walker before the 

Honorable Michael J. Callahan in Wayne County Circuit Court.  (See, e.g., ECF 
No. 6-7 at Pg ID 329.)  A week before trial, during an October 2, 2014 pre-trial 
conference, Upshaw requested an adjournment.  (ECF No. 6-5 at Pg ID 322.)  He 

explained to the trial judge that he was dissatisfied with his attorney, Ray Paige, 
who failed to appear at an August 5, 2014 conference,2 and had just retained a new 
attorney, Wright Blake, who was present at the conference.  (ECF No. 6-4 at Pg ID 

314-15; ECF No. 6-5 at Pg ID 322.)  The full colloquy proceeded as follows: 
     MR. BLAKE: And we’re going to talk some more.  Mr. Upshaw           
     wants an adjournment.  He doesn’t feel that we’re quite ready.  I told 
     him that I would bring myself up to speed by the time for the trial 
     date.  Is that correct, Mr. Upshaw?                                 

     MR. UPSHAW: Yes, but as you can see, your Honor, I have retained    
     a new lawyer because of my insufficient counsel for not showing up  
     and not coming and telling me the information.  So I feel like my   
     lawyer hasn’t, my lawyer hasn’t saw the DVD.  He hasn’t retained    
     the transcript or anything and I feel like it’s best grounds of     
     adjournment right there, your Honor, just to get him caught up on   
     what’s going on with the case cause I just retained him like a week 
     and a half ago, probably not even that.                             

     THE COURT: Well, I’m not granting an adjournment at this point.     
     We’ll see what happens. Okay.                                       

     MR. BLAKE: Thank you, your Honor.                                   

(ECF No. 6-5 at Pg ID 321-22.)                                            

    The trial began on October 9, 2014 and lasted three days.  (See ECF No. 6-1 
at Pg ID 225.)  On October 16, 2014, the jury found Upshaw guilty of armed 
robbery, carrying a dangerous weapon with unlawful intent, and felony-firearm.  
(ECF No. 6-10 at Pg ID 743.)  He was acquitted of the assault charges.  (Id.) 

2 In a letter to the Michigan Attorney Grievance Commission, Upshaw’s mother, 
Toya Green, stated that Paige had, in fact, failed to appear on four separate 
occasions.  (ECF No. 6-14 at Pg ID 950.)                                  
    On November 14, 2014, the trial court sentenced Upshaw to prison for two 
years for felony-firearm followed by concurrent terms of eighteen to forty years for 

armed robbery, one to five years for carrying a dangerous weapon, and one to 
fifteen years for second-degree home invasion.  (ECF No. 6-11 at Pg ID 756-57.) 
    B.   Upshaw’s State Appellate and Post-Conviction Efforts            

    On December 17, 2014, Upshaw commenced an appeal as of right through 
counsel.  (ECF No. 6-14 at Pg ID 905.)  Upshaw raised several claims, including 
denial of his Sixth Amendment right to the effective assistance of counsel due to 
trial counsel’s failure to investigate potential alibi witnesses, file the required 

notice to present an alibi defense, and present alibi witnesses.  (Id. at 975.)  
Upshaw also moved to remand for an evidentiary hearing pursuant to Michigan 
Court Rule 7.211(C)(1) and People v. Ginther, 212 N.W.2d 922 (Mich. 1973).  

(ECF No. 6-14 at Pg ID 895-96.)                                           
    In support, Upshaw provided an affidavit in which he stated:         
    . . . on May 28, 2014, at about 3:30 a.m., a co-worker dropped me off 
    at my home, where my aunt (Crystal Holloway) let me in, and along    
    with my grandmother (Joann Holloway), along with my significant      
    other (Diamond Woods), all heard me preparing a meal in the kitchen  
    of the home before I went to bed.                                    

    I was never at, or near[,] the Mobil gas station located at 1920 West 
    Fischer Drive.  Neither was I with Darrell Walker in that early      
    morning, until around 7:30-7:45 a.m., due to the fact I caught the bus 
    to go help someone move, and saw him along the bus ride and which    
    we did a criminal act along the way.  The information above is true, 
    and are facts that need to be established, due to my attorney lacking 
    adequate information and time to prepare my defense.  I had nothing  
    to do with an armed robbery, nor did I have any knowledge of one.    

(Id. at 897 (capitalization omitted).)  Also attached was an affidavit from Upshaw’s 
co-defendant, Walker, in which Walker stated that Upshaw was not at the gas 
station with him and that Walker went to the gas station alone.  (Id. at 898.)  On 
May 6, 2015, the Court of Appeals denied Upshaw’s Motion to Remand.  (Id. at 
894.)                                                                     
    With the assistance of newly retained appellate counsel, Upshaw filed a 

successive motion to remand and moved for leave to file a supplemental brief on 
January 25, 2016.  (Id. at 912-14.)  In support of the motion to remand, Upshaw 
attached a new affidavit that he signed, along with notarized statements from his 

grandmother, JoAnn Green, and his aunt, Crystal Holloway.  (Id. at 878-84.)  In 
her statement, Holloway averred:                                          
    I was a [sic] alibi witness to some events that happened on May [sic].  
    [Upshaw’s] lawyer knew about me being a witness but he choose [sic]  
    not to call on me to give my testimony. . . . I am writing this letter in 
    hopes that [Upshaw] will be granted a new trial in which he will be  
    able to have his witness called to the stand to testify on his behalf. 

(Id. at 882.)                                                             
    Green’s affidavit provided Upshaw an alibi for the time immediately  
preceding the robbery, suggested that Upshaw did not leave the home until 7:45 
a.m. that day, and described with particularity why Green remembered the details 
of that night.  Green wrote, in part, that she lived with her children and Upshaw 
and on May 28, 2014:                                                      

    I know Shawn . . . could not have been anywhere else, because at     
    between 3:20 and 3:30 he was getting blessed out by me[.]  [H]e’d    
    woke me again.  I’d been watching one of my programs and fell        
    asleep[.]  I woke up from the knock on the door[,] look at the tv set 
    the time on the cable box[,] that’s why I know he couldn’t be in too 
    [sic] places at a time[.]  I was mad after seeing what time it was and I 
    let (Shawn) Lafayette Upshaw know it to[o], later when he left at    
    around 7:45, I was still upset, sitting on my front porch didn’t want a 
    kiss or say love you.                                                

(ECF No. 6-14 at Pg ID 884.)                                              
    The Michigan Court of Appeals denied Upshaw’s successive motion to   
remand, holding that Upshaw failed to “demonstrate[] that further factual 
development of the record or an initial ruling by the trial court [was] necessary.”  
(Id. at 874.)3  Nevertheless, the court of appeals permitted the filing of a 
supplemental brief.  (Id. at 911.)  As relevant here, Upshaw argued in the 
supplemental brief that “the trial court abused its discretion when it denied [his] 
request for a brief adjournment” and that “[he] was denied a fair trial and due 
process of law [because] the prosecutor improperly dismissed minority venire 
members” and gave “insufficient [race-neutral reasons] to avoid a finding of 
purposeful discrimination.”  (Id. at 927, 930 (capitalization omitted).)  

3 Presiding Judge Cynthia Diane Stephens disagreed and would have granted the 
motion to remand. (Id.)                                                   
    On May 19, 2016, the Michigan Court of Appeals rejected all of Upshaw’s 
arguments and affirmed his convictions and sentence.  People v. Walker, Nos. 

324672, 325195, 2016 WL 2942215 (Mich. Ct. App. May 19, 2016).  On April 4, 
2017, the Michigan Supreme Court denied leave to appeal.  People v. Upshaw, 891 
N.W.2d 487 (Mich. 2017)  The United States Supreme Court denied Upshaw’s  

petition for the writ of certiorari on November 6, 2017.  Upshaw v. Michigan, 138 
S. Ct. 422 (2017).                                                        
    On July 10, 2018, Upshaw filed a pro se motion for relief from judgment.  
(ECF No. 6-12 at Pg ID 760.)  In it, he argued, among other things, that his Sixth 

Amendment rights were violated by the trial court’s use of judicially found facts to 
score offense variables one, four, and nine (which increased his mandatory 
minimum sentence and guidelines range), as well as his appellate counsel’s failure 

to raise this issue; and that the Michigan Court of Appeals unreasonably applied 
the Supreme Court’s precedent in Batson v. Kentucky, 476 U.S. 79 (1986), in 
violation of the Fourteenth Amendment.  (Id. at 796, 806.)  On November 27, 
2018, the Honorable Wanda A. Evans (to whom the case was reassigned following 

Judge Callahan’s retirement) denied Upshaw’s motion.  (ECF No. 6-13 at Pg ID 
855; see also ECF No. 6-1 at Pg ID 225.)  Both the Michigan Court of Appeals and 
the Michigan Supreme Court denied leave to appeal.  (ECF No. 6-15 at Pg ID 

1057; ECF No. 6-17 at Pg ID 1316.)                                        
    C.   Upshaw’s Habeas Petition (ECF No. 1)                            
    On September 18, 2020, Upshaw filed the current federal habeas petition.  

(ECF No. 1.)  Upshaw raises seven grounds for relief in his petition: (1) that his 
“trial counsel was constitutionally ineffective for failing to investigate potential 
alibi witnesses and failing to file an alibi notice;” (2) that “the trial court denied 

[his] motion for a brief adjournment . . . in violation of due process;” (3) that “the 
prosecutor dismissed African-American potential jurors in a discriminatory 
manner, in violation of the Equal Protection Clause;” (4) that “the trial court found 
facts that were not found by the jury to score offense variable 14, which increased 

the mandatory minimum sentence, in violation of the Sixth and Fourteenth  
Amendments;” (5) that “appellate counsel was constitutionally ineffective for 
failing to request a ‘Crosby remand’ as the remedy for [the offense variable 14] 

claim;” (6) that “the trial court found facts that were not found by the jury to score 
offense variables 1, 4, and 9, which increased the mandatory minimum sentence, in 
violation of the Sixth and Fourteenth Amendments, and [that] appellate counsel 
was constitutionally ineffective for failing to raise this claim on direct appeal;” and 

(7) that “trial and appellate counsel were constitutionally ineffective for failing to 
argue that prior record variable 5 was [inappropriately] []scored.”  (Id. at Pg ID 6-
11 (capitalization omitted).)                                             
    On May 2, 2022, this Court granted summary judgment in favor of Upshaw 
on claim six; found claims four, five, and seven moot in light of the relief 

appropriate for claim six; and ordered an evidentiary hearing on claims one and 
two.  (ECF No. 19.)  With respect to claim one, the Court concluded that the State 
court’s adjudication of the claim involved an unreasonable application of 

Strickland v. Washington, 466 U.S. 668, 685-86 (1984), as well as an unreasonable 
determination of the facts.  (Id. at Pg ID 1520.)  The Court therefore held that 
Upshaw had overcome the limitation of § 2254(d)(1) and that AEDPA deference is 
inappropriate as to that claim.  (Id. at Pg ID 1530.)                     

    The evidentiary hearing was held on May 17, 2022.  (ECF No. 23.)  Three 
witnesses testified: Upshaw, Blake, and Holloway.  (See id. at Pg ID 1548.) 
    D.   Evidentiary Hearing                                             

         1)   Upshaw’s and Holloway’s Testimony                          
    After getting off work at Tony’s Bar and Grill in the early morning of May 
28, 2014, Upshaw received a ride home from his manager, Jeffrey Haugabook.  
(Id. at Pg ID 1555.)  Upshaw needed a ride because, at the time, he had no car or 

bike, and relied exclusively on public transportation and ridesharing to get around.  
(Id. at Pg ID 1555-56.)  Upshaw did not have his keys with him when he arrived 
home around 3:25 a.m., so he knocked on the front door.  (Id. at Pg ID 1556.)  
Holloway, who suffers from insomnia, heard the knocking from her bedroom  
upstairs and let him in.  (Id. at Pg ID 1555, 1613-14.)                   

    Upshaw’s knocking also woke up Green, who was sleeping on the couch  
downstairs.  (Id. at Pg ID 1583, 1614-15.)  Green was very angry with Upshaw for 
waking her up and spent several minutes yelling at him.  (Id. at Pg ID 1583, 1608.)  

Eventually, Upshaw went upstairs and began to attend to his infant daughter, who 
had been awakened by the commotion.  (Id. at Pg ID 1583-84, 1609, 1612.)  
Holloway, who also went upstairs, was in and out of her bedroom for about twenty 
or thirty minutes, during which time she spoke with Upshaw and heard him  

playing with his daughter.  (Id. at Pg ID 1583-84, 1615.)                 
    Diamond Woods, the mother of Upshaw’s daughter, was with Upshaw as   
well.  (Id. at Pg ID 1615, 1619.)  Holloway retired to her room for the night “a 

little before 4:00 [a.m.].”  (Id. at Pg ID 1615.)  At some point, Upshaw went 
downstairs to make something to eat.  (Id. at Pg ID 1583.)  He then returned to his 
room, which he shared with Woods, and went to sleep.  (Id. at Pg ID 1584.)  The 
next morning, Upshaw awoke around 6:30 or 7:00 and left the house shortly 

thereafter.  (Id. at 1585.)  Green was awake and sitting downstairs when he left.  
(Id. at Pg ID 1585.)                                                      
    After being charged with the armed robbery of the gas station, Upshaw 

retained Ray Paige to represent him at trial.  (Id. at Pg ID 1572.)  At their first 
meeting, Upshaw informed Paige that he had been at home with his baby, Green, 
Holloway, and Woods at the time of the robbery and that the three women were 

willing to serve as alibi witnesses.  (Id. at Pg ID 1562, 1565, 1572-73.)  At no point 
during the following months, however, did Paige try to contact them.  (Id. at Pg ID 
1562-63, 1565, 1610, 1621.)  This total failure to investigate, combined with 

Paige’s poor communication and absence at certain pre-trial proceedings, proved 
too much for Upshaw.  (Id. at Pg ID 1564.)  Accordingly, he replaced Paige with 
another attorney, Wright Blake, about two weeks before trial.  (Id. at Pg ID 1566.)  
Despite the little time remaining before trial, Blake waited nearly a week to meet 

with Upshaw and failed to familiarize himself with the facts of Upshaw’s case 
beforehand.  (Id. at Pg ID 1566-67, 1573.)                                
    At their first meeting, eight days before trial, Upshaw told Blake that he was 

home at the time of the gas station robbery and that Green, Holloway, and Woods 
were prepared to testify at trial to his alibi.  (Id.)  Upshaw also gave Blake their 
contact information.  (Id. at Pg ID 1568.)  Blake, who primarily used the meeting 
to review Upshaw’s discovery packet for the first time, offered no response and 

took no notes.  (Id. at Pg ID 1566-67, 1574.)                             
    The next day, Blake told Upshaw that he had missed the deadline to call 
alibi witnesses.  (Id. at Pg ID 1576-77.)  Nevertheless, Blake declined to make any 

arguments at the pre-trial conference in support of Upshaw’s plea for an  
adjournment and, instead, told the trial court that he could be prepared for trial the 
following week.  (Id. at Pg ID 1566-67; ECF No. 6-5 at Pg ID 321-22.)  Blake did 

not meet with Upshaw again before trial and did not contact Holloway.  (Id. at Pg 
ID 1575-76, 1610.)                                                        
    Green, Holloway, and Woods spoke with Upshaw “[m]ultiple times” about 

serving as alibi witnesses and even attempted to reach out to Blake.  (Id. at Pg ID 
1579-80.)  Blake, however, called none of these individuals to testify—though all 
attended the trial.  (Id. at Pg ID 1580.)  Blake ultimately called only one witness, 
Haugabook.  (Id. at Pg ID 1576.)  Haugabook, however, did not offer an alibi.  

(ECF No. 6-9 at Pg ID 671.)                                               
    From Upshaw’s perspective, Blake “just winged the whole case.” (ECF No. 
23 at Pg ID 1577.)  At every opportunity, even as the trial wore on, Upshaw 

renewed his pleas for Blake to call his alibi witnesses.  (Id. at Pg ID 1575.)  But 
Blake repeatedly insisted that he could do nothing because he had missed the alibi 
witness deadline.  (Id.)                                                  
         2.   Blake’s Testimony                                          

    Blake remembered very little of Upshaw’s case and had no records     
pertaining to his representation of Upshaw.  (Id. at Pg ID 1596.)4  Blake recalled 


4 Blake stated that “[he] always take[s] notes,” but admitted that he is “not a very 
good notetaker.” (ECF No. 23 at Pg ID 1604-05.)                           
that the trial took place in 2014, that the charges involved a gas station, and that 
there was a video.  (Id. at Pg ID 1595-96.)  But that was about it.  (Id. at Pg ID 

1598-99.)  He did not recall how many weeks before trial he had been retained, 
whether he met with Upshaw more than once before trial, whether he had been 
informed of the existence of alibi witnesses, whether he contacted any of those 

witnesses, or how much time he spent preparing for trial.  (Id. at Pg ID 1596-98.)  
Despite these numerous lapses in memory, Blake was “sure” that he was     
adequately prepared for Upshaw’s trial.  (Id. at Pg ID 1597.)             
    The Court’s confidence in Blake’s credibility was seriously diminished, 

however, by his inconsistent statements and complete lack of preparation—or 
attempt to prepare—for the evidentiary hearing.  For example, Blake initially 
claimed that no one, except possibly the Attorney General’s office, contacted him 

about the evidentiary hearing, and that he did not know why he was being called to 
testify until he looked up the docket.  (Id. at Pg ID 1601.)  He later recalled, 
however, that Upshaw’s habeas counsel contacted him via email before      
subpoenaing him and that he responded.  (Id. at 1602.)  Similarly, Blake claimed 

that he was “sure” he would have requested an adjournment if he was retained so 
soon before trial.  (Id. at Pg ID 1605.)  Yet, at the October 2, 2014 pre-trial 
conference, he did not do so.  (ECF No. 6-5 at Pg ID 321-22.) 5           
    In addition, Blake declined to review (or even request) any materials from 

the record to prepare to give testimony, save for the register of actions, despite the 
fact that he could recall almost nothing related to his representation of Upshaw and 
knew that the evidentiary hearing would focus on that representation.  (Id. at Pg ID 

1598, 1601.)  Against this backdrop, the Court does not find credible Blake’s claim 
that he would have asked the trial court for an adjournment if he was provided alibi 
witnesses past the time to file an alibi notice.  (Id. at Pg ID 1599.)    
IV.  Analysis                                                             

    A.   Trial Counsel’s Failure to Investigate and Call Alibi Witnesses to 
         Testify at Trial (Claim I)                                      

    In his first claim, Upshaw argues that his “trial counsel was constitutionally 
ineffective for failing to investigate potential alibi witnesses and failing to file an 
alibi notice.”  (ECF No. 1 at Pg ID 6 (capitalization omitted).)          
    The Sixth Amendment to the United States Constitution guarantees criminal 
defendants the right to the effective assistance of counsel.  See Strickland v. 
Washington, 466 U.S. 668, 685-86 (1984).  To prove ineffective assistance of 


5 Although Blake no longer remembers how soon before trial he joined the case, he 
does not dispute Upshaw’s claim that it was two weeks.  (ECF No. 23 at Pg ID 
1568, 1604.)  The Court also notes that at the October 2, 2014 pre-trial conference, 
where Blake declined to argue for an adjournment, he did not disagree with 
Upshaw’s statement that he had been retained “a week and a half ago, probably not 
even that.”  (ECF No. 6-5 at Pg ID 322.)                                  
counsel, Upshaw must satisfy Strickland’s familiar two-prong test.  See, e.g., 
Peoples v. Lafler, 734 F.3d 503, 512 (6th Cir. 2013).                     

    The first prong assesses counsel’s performance.  Under this prong,   
    “the defendant must show that counsel’s representation fell below an 
    objective standard of reasonableness.”  Strickland, 466 U.S. at 687-88.  
    In other words, a court assessing an ineffective assistance claim must 
    “determine whether, in light of all the circumstances, the challenged 
    acts or omissions were outside the wide range of professionally      
    competent assistance.”  Id. at 690.  When making this assessment,    
    “counsel is strongly presumed to have rendered adequate assistance   
    and made all significant decisions in the exercise of reasonable     
    professional judgment.”  Id.                                         

    Second, in order to amount to a constitutional violation, the error by 
    counsel must have been prejudicial to the defendant.  Id. at 691-92.  
    To prove prejudice, “the defendant must show that there is a         
    reasonable probability that, but for counsel’s unprofessional errors, 
    the result of the proceeding would have been different.  A reasonable 
    probability is a probability sufficient to undermine confidence in the 
    outcome.”  Id. at 694.  “The question is not whether a court can be  
    certain counsel’s performance had no effect on the outcome or        
    whether it is possible a reasonable doubt might have been established 
    if counsel acted differently. . . . The likelihood of a different result 
    must be substantial, not just conceivable.”  Richter, 562 U.S. at 111-
    12.                                                                  

Stermer v. Warren, 959 F.3d 704, 736 (6th Cir. 2020) (brackets omitted).  
    Before turning to the proper application of Strickland, the Court makes the 
following factual findings as to the handling of Upshaw’s case by Paige and Blake.  
These findings are based upon the Court’s careful review of the record evidence as 
well as its consideration of the testimony adduced at the evidentiary hearing. 
    Upshaw, with the assistance of his mother and Green, retained Paige in June 
or July 2014.  (ECF No. 6-2 at Pg ID 227; ECF No. 6-14 at Pg ID 950; ECF No. 23 

at Pg ID 1565, 1572, 1620.)  The two women took responsibility for corresponding 
with Paige.  (ECF No. 6-14 at Pg ID 950; ECF No. 23 at Pg ID 1620.)  At their 
very first attorney-client meeting, Upshaw told Paige that he was innocent and that 

Green, Holloway, and Woods could provide alibi testimony.  (ECF No. 23 at Pg ID 
1562, 1565, 1572-73.)  Paige, however, did not contact Holloway, and likely did 
not contact Woods.  (Id. at Pg ID 1562-63, 1610, 1621.)  Paige may have spoken to 
Green on one occasion, but he did not pursue her alibi testimony.  (Id. at Pg ID 

1562-63; ECF No. 6-14 at Pg ID 884.)  At no time during the next two months did 
Paige file an alibi notice.  (ECF No. 23 at Pg ID 1577.)  In addition, Paige failed to 
appear for at least one, and possibly multiple, proceedings.  (ECF No. 6-1 at Pg ID 

225; ECF No. 6-4 at Pg ID 314-15; ECF No. 6-5 at Pg ID 322; ECF No. 6-14 at Pg 
ID 950; ECF No. 23 at Pg ID 1564.)                                        
    Approximately two weeks before trial, Upshaw, again with the help of his 
mother and Green, retained Blake to replace Paige.  (ECF No. 6-5 at Pg ID 322; 

ECF No. 6-14 at Pg ID 950; ECF No. 23 at Pg ID 1566.)  Although time was of the 
essence, Blake waited until eight days before trial to meet with Upshaw and did not 
begin familiarizing himself with the case materials until that first attorney-client 

meeting.  (ECF No. 23 at Pg ID 1566-67, 1573.)  During that meeting, Upshaw 
told Blake that he had been home at the time of the robbery and that Green, 
Holloway, and Woods were prepared to testify to his alibi at trial. 6  (Id.)  Upshaw 

also provided their contact information.  (Id. at Pg ID 1568; ECF No. 6-14 at Pg ID 
950.)  Blake, however, used the meeting to review Upshaw’s discovery packet, 
which he had not obtained the previous week, and did not discuss Upshaw’s alibi.  

(ECF No. 23 at Pg ID 1566-67, 1574.)                                      
    The next day, Blake told Upshaw that he missed the deadline to call alibi 
witnesses and, at the pre-trial conference, declined to make any arguments in 
support of Upshaw’s plea for an adjournment.  (Id. at Pg ID 1566-67, 1576-77; 

ECF No. 6-5 at Pg ID 321-22.)  Blake made no attempt to seek an extension of the 
alibi-witness deadline.  He instead told the trial court that he could be prepared for 
trial by the following week.  (ECF No. 6-5 at Pg ID 322).  That was the last time 

Upshaw saw Blake before trial.  (ECF No. 23 at Pg ID 1575-76.)  And although 
Green reached out to Blake on behalf of herself, Holloway, and Woods, Blake did 


6 Respondent argues that Upshaw’s testimony should not be believed because it is 
“self-serving.”  (ECF No. 24 at Pg ID 1636.)  This argument is unpersuasive, 
however.  See Hodges v. Colson, 727 F.3d 517, 538 (6th Cir. 2013) (en banc) 
(quoting Miller v. Straub, 299 F.3d 570, 581 (6th Cir. 2002)) (explaining that 
“testimony, though self-serving, may be enough by itself to satisfy [Strickland’s] 
prejudice prong”).  Upshaw and Holloway were both very credible at the hearing.  
Their testimony, in combination with Green’s notarized letter, lead the Court to 
find that Upshaw told Paige and Blake that he had an alibi defense and witnesses to 
back it up.  Significantly, Blake never claimed that he was not informed of 
Upshaw’s alibi witnesses but stated that he “did not remember.”           
not attempt to file an alibi notice, did not investigate Holloway if not also Green 
and Woods, and ultimately called none of the women to testify.  (Id. at Pg ID 1580, 

1610; ECF No. 6-14 at Pg ID 884.)  At every opportunity, Upshaw renewed his 
pleas for Blake to call alibi witnesses, but Blake insisted that he could do nothing 
because he had missed the deadline.  (Id. at Pg ID 1575.)                 

         1)   Performance                                                
    “Under Strickland, trial counsel has a duty to investigate his case[.]”  
Stewart v. Wolfenbarger, 468 F.3d 338, 356 (6th Cir. 2006).  “This duty includes 
the obligation to investigate all witnesses who may have information concerning . . 

. [a] client’s guilt or innocence.”  Id. (quoting Towns v. Smith, 395 F.3d 251, 258 
(6th Cir. 2005)) (emphasis added).  In this case, it was objectively unreasonable for 
Paige to neither contact nor investigate Holloway after Upshaw informed him at 
their initial meeting that she was a potential alibi witness.7  Id.; see also, e.g., 

McQueen v. Winn, No. 19-2212, 2020 U.S. App. LEXIS 14373, at *17 (6th Cir. 
May 5, 2020) (citing Towns, 395 F.3d at 258; Clinkscale v. Carter, 375 F.3d 430, 
443 (6th Cir. 2004)) (“An attorney is . . . ineffective when he or she fails to 

investigate potential alibi witnesses.”).  Likewise, it was objectively unreasonable 


7 Although it seems likely that Paige also failed to investigate Green and Woods, 
the Court bases its decision specifically on Holloway because her testimony at the 
evidentiary hearing was highly credible and based on personal knowledge.  (ECF 
No. 23 at Pg ID 1610 (“I can’t speak for my mother, but he didn’t contact me.”). 
for Blake to fail to undertake any investigation into Upshaw’s case until eight days 
before trial, after the deadline for filing an alibi notice had passed.  See Williams v. 

Taylor, 529 U.S. 362, 395 (2000) (failure to begin mitigation investigation until a 
week before trial was unreasonable); see also Rompilla v. Beard, 545 U.S. 374, 
387 (2005) (citation omitted) (requiring “a prompt investigation”) (emphasis 

added).  Blake, who testified that he has  tried “thousands” of cases, knew or 
should have known that Michigan law requires a defendant to file an alibi notice at 
least ten days before trial, and should have moved quickly to ascertain whether 
Upshaw had an alibi.  (ECF No. 23 at Pg ID 1599); Mich. Comp. Laws        

§ 768.20(1); see Clinkscale, 375 F.3d at 443 (citations omitted) (noting that “a 
number of courts have found ineffective assistance of counsel in violation of the 
Sixth Amendment where . . . a defendant’s trial counsel fails to file a timely alibi 

notice and/or fails adequately to investigate potential alibi witnesses”). 
    Even assuming that Blake’s late addition to the case hindered his ability to 
timely discover Upshaw’s alibi defense, Blake’s failure to attempt to remedy the 
situation is independently sufficient to constitute ineffective assistance of counsel.  

See Bigelow v. Williams, 367 F.3d 562, 570-71 (6th Cir. 2004) (citing Matthews v. 
Abramajtys, 319 F.3d 780, 789-90 (6th Cir. 2003); Blackburn, 828 F.2d at 1182-
83) (“[T]he failure to call a known alibi witness generally . . . constitute[s] 
ineffective assistance of counsel.”); see also Wilson v. Cowan, 578 F.2d 166, 168 
(6th Cir. 1978) (reaching same conclusion under pre-Strickland standard). 

    After learning of the existence of Upshaw’s alibi defense, Blake had various 
remedial options available to him to avoid the preclusion of Upshaw’s alibi 
witnesses.  The most reasonable course of action was for Blake to argue for an 

adjournment which, given the circumstances, the trial court was obliged to grant.  
See People v. Merritt, 238 N.W.2d 31, 37-38 (Mich. 1976) (providing that it would 
be an abuse of discretion for the trial court to preclude a defendant from filing a 
timely alibi notice by denying a continuance where there is no evidence of 

prejudice to the prosecution or intentional delay by the defendant).  But at the very 
least, Blake could have requested permission to file a late alibi notice.  See Mich. 
Comp. Laws § 768.20(1) (requiring notice to be served “not less than 10 days 

before the trial of the case, or at such other time as the court directs”) (emphasis 
added); People v. Travis, 505 N.W.2d 563, 568 (Mich. 1993) (explaining that this 
language “preserves the trial court’s discretion to fix the timeliness of notice in 
view of the circumstances”).  Blake, however, did neither.8  Instead, he  


8 It seems likely that Blake’s failure to request permission to file a late alibi notice 
was at least partially based on his lack of knowledge of the trial court’s discretion 
“to fix the timeliness of notice in view of the circumstances.”  Travis, 505 N.W.2d 
at 568; (see ECF No. 23 at Pg ID 1575 (“Even during trial, I kept telling him 
[about my alibi witnesses].  He was like, ‘We can’t do nothing.  We – it’s a 
deadline.  I didn’t meet my deadline.’”).)  This is further evidence of deficient 
compounded his ineffectiveness by emphasizing that the adjournment request was 
coming from his client, not him, and assuring the trial court that he could be ready 

to try the case the following week.  (ECF No. 6-5 at Pg ID 322 (“Mr. Upshaw 
wants an adjournment.  He doesn’t feel that we’re quite ready.  I told him that I 
would bring myself up to speed by the time for the trial date.”) (emphasis added); 

ECF No. 23 at Pg ID 1567.)                                                
    Counsel’s actions were not objectively reasonable.  See Roe v. Flores-
Ortega, 528 U.S. 470, 481 (2000) (citing Strickland, 466 U.S. at 688) (“The 
relevant question is not whether counsel’s choices were strategic, but whether they 

were reasonable.”); Matthews, 319 F.3d at 790 (finding that trial counsel “[met] the 
standard for incompetence” where he “actively barred his client from introducing 
[an] alibi witness” and thereby “appear[ed] to . . . furnish[] a net negative to the 

defense”); Clinkscale, 375 F.3d at 443-44 & n.9 (holding that trial counsel’s failure 
to call the defendant’s father as an alibi witness was objectively unreasonable even 
though the jury might have suspected the father had motive to lie and might have 
found his alibi weak).  Blake offered no reason for his actions and in fact indicated 

that if he had been retained so soon before Upshaw’s trial, he certainly would have 

performance.  See King v. Westbrooks, 847 F.3d 788, 797 (6th Cir. 2017) (quoting 
Hinton v. Alabama, 571 U.S. 263, 274 (2014)) (“An attorney’s ignorance of a point 
of law that is fundamental to his case combined with his failure to perform basic 
research on that point is a quintessential example of unreasonable performance 
under Strickland.”).                                                      
requested a continuance.  But, again, he did not.  Upshaw has accordingly 
overcome the “strong presumption that [his] counsel’s conduct [fell] within the 

wide range of reasonable professional assistance.”  Strickland, 466 U.S. at 689.  
The Court reaches the same conclusion even if it considers only the record before 
the State court.                                                          

    That record reflects, at the very least, trial counsel’s failure to investigate 
Upshaw’s alibi defense.  See Stewart, 468 F.3d at 356 (an attorney’s duty “includes 
the obligation to investigate all witnesses who may have information concerning 
his or her client’s guilt or innocence”) (emphasis added).  Despite being aware of 

Upshaw’s claim that he was home with Woods, Holloway, and Green at the time 
of the armed robbery, Paige apparently did nothing to investigate that defense.  The 
Court sees no reasonable justification for that failure.  See Ramonez v. Berghuis, 

490 F.3d 482, 488 (6th Cir. 2007) (“[T]he investigation leading to the choice of a 
so-called trial strategy must itself have been reasonably conducted lest the 
‘strategic’ choice erected upon it rest on a rotten foundation.”).        
    Blake could have attempted to remedy that defect when he stepped in as trial 

counsel but he made no attempt to do so.  Although he was hired to represent 
Upshaw less than two weeks before trial, the record reflects that a week before trial 
Blake still had not reviewed the evidence against Upshaw.  (See ECF No. 6-5 at Pg 

ID 321-22.)  Blake was made aware of Upshaw’s alibi defense.  Yet Blake   
undermined Upshaw’s request for a continuance, which would have given Blake 
time to investigate and prepare a defense.  Again, there is no reasonable 

justification for counsel’s decisions.                                    
         2)   Prejudice                                                  
    “When trial counsel fails to present an alibi witness, ‘the difference between 

the case that was and the case that should have been is undeniable.’”  Caldwell v. 
Lewis, 414 F. App’x 809, 818 (6th Cir. 2011) (quoting Stewart 468 F.3d at 361) 
(brackets omitted).  For this reason, the Sixth Circuit has repeatedly found 
prejudice where trial counsel fails to present a known alibi witness, especially 

where “alibi is a critical aspect of [the] defendant’s defense.”  Clinkscale, 375 F.3d 
at 443; see, e.g., Stewart, 468 F.3d at 360 (finding prejudice where the  
“[p]etitioner’s entire defense strategy was an alibi defense”).           

    In this case, Upshaw’s defense was that he had been misidentified and was 
elsewhere at the time of the gas station robbery.  (ECF No.  6-14 at Pg ID864.)  
But because of Blake’s deficient performance, Upshaw did not offer a single alibi 
witness to back up that argument.  By Blake’s own admission, Haugabook could 

not “testify to where . . . Upshaw was at the time that the shooting happened” and 
would not be providing Upshaw with an alibi.  (ECF No. 6-9 at Pg ID 670.)  
Through Haugabook, Upshaw was able to establish only that he had been dropped 

off at home around 3:20 a.m. and was wearing different shoes than those worn by 
the perpetrator of the armed robbery several minutes later.  (ECF No. 6-8 at Pg ID 
542-44; ECF No. 6-10 at Pg ID 682-83.)  This was not much of a defense.   

    In contrast, had Holloway and Green been able to testify, the jury would 
have heard an entirely different narrative.  The State court records reflect that, at 
the very least, Green would have told the jury that within minutes of the robbery 

taking place, Upshaw was at home, with her, his aunt, his daughter, and his 
daughter’s mother, being reprimanded by Green, and that he left the house the next 
morning, hours after the armed robbery occurred.  (ECF No. 23 at Pg ID 1608-09, 
1613-15; ECF No. 6-14 at Pg ID 884.)                                      

    The Court finds no reasonable explanation for presenting Haugabook as a 
witness but not Upshaw’s alibi witnesses, and Blake has offered none.  Haugabook 
could have bolstered and corroborated Green’s and Holloway’s alibi testimony.  

Standing alone, Haugabook’s testimony was of marginal benefit to the defense. 
    Contrary to the State court’s conclusion, Green’s statements did place 
Upshaw at home at the time of the robbery—or close enough to it that “there is a 
reasonable probability that, but for counsel’s [failure to investigate and present her 

testimony], the result of the proceeding would have been different.”9  Strickland, 


9 Green’s statement strongly suggests that Upshaw was home from 3:20 a.m. until 
he left at 7:45 a.m.  Effective counsel at least would have questioned Green to 
determine whether she knew and intended to convey in her statement that Upshaw 
was home this entire period.                                              
466 U.S. at 694.  Green’s statements had to be read in context of Haugabook’s 
testimony that he dropped Upshaw at home around 3:20 a.m., trial testimony that 

Walker entered the gas station at 3:35 a.m. and the person believed to be Upshaw 
approached seconds before 3:37 a.m., that they both arrived on foot, that the gas 
station is approximately three-and-a-half miles from Upshaw’s home, and   

Walker’s statement that Upshaw was not with him at the gas station when the 
robbery occurred.                                                         
    There is no reason to conclude that Green or Holloway would have testified 
to anything other than what has been presented in the record.  And while the Court 

recently learned that Green is now deceased, her statement is part of the record and 
may be considered.  See Rule 7(b) of the Rules Governing § 2254 Cases     
(permitting a federal habeas court to consider “letters predating the filing of the 

petition” as well as “documents” and other “exhibits”).  The Michigan Court of 
Appeals noted that Green’s statement did not comply with Michigan Court Rule 
2.119(B), see 2016 WL 2942215, at *6; however, the court did not strike the 
statement, although it had the authority to do so, and still evaluated it as an offer of 

proof.                                                                    
    Respondent argues that Upshaw cannot demonstrate prejudice because “the 
jury would not have been obligated to believe the[] testimony” of his alibi 
witnesses.  (ECF No. 24 at Pg ID 1636.)  However, the Sixth Circuit rejected a 
nearly identical argument in Clinkscale:                                  

         The state attacks the significance of Arthur Clinkscale’s       
    affidavit on the grounds that: (1) he is defendant Clinkscale’s father 
    and therefore has a motive to lie; and (2) the substance of his affidavit 
    “only barely provides an alibi for Clinkscale” because “Clinkscale   
    could certainly have driven from Columbus to Youngstown in the       
    hours between the shooting and the time his father allegedly saw him 
    that morning.”  . . .  These arguments are unavailing.  In considering 
    the significance of this affidavit, our role is limited to determining 
    whether there is a “reasonable probability” that the outcome of      
    Clinkscale’s trial would have been different but for his counsel’s   
    errors.  Strickland, 466 U.S. at 694.  The factors that the state has 
    highlighted may ultimately affect the credibility of Arthur          
    Clinkscale’s testimony in the eyes of the jury, but they are not     
    dispositive with respect to our analysis.                            

375 F.3d at 444 n.9.  The lesson from Clinkscale is that where a defense theory 
hinges upon placing the defendant elsewhere than at the scene of the crime, a trial 
attorney’s failure to call a willing and available alibi witness will likely be 
prejudicial even if the persuasive value of the testimony might be diminished on 
cross-examination.  See, e.g., Matthews, 319 F.3d at 789 (finding a reasonable 
probability of a different outcome where trial counsel failed “to present potential 
alibi witnesses, whose testimony would have been quite useful, even if not 
conclusive”) (emphasis added).  Indeed, the Sixth Circuit has found prejudice 
“even where the state postconviction court said the alibi witnesses would have 
been ‘unconvincing,’ and there were other alibi witnesses presented at trial.”  
Caldwell, 414 F. App’x at 818 (quoting Bigelow v. Haviland, 576 F.3d 284, 291 
(6th Cir. 2009)); see also Ramonez v. Berghuis, 490 F.3d 482, 485-86 (6th Cir. 
2007) (“Even though the jury could have discredited the potential witnesses here 

based on factors such as bias and inconsistencies in their respective stories, there 
certainly remained a reasonable probability that the jury would not have.”); 
Matthews, 319 F.3d at 790 (citing Strickland, 466 U.S. at 694) (“[A] ‘reasonable 

probability’ does not mean a certainty, or even a preponderant likelihood, of a 
different outcome, nor, even more, that no rational juror could constitutionally find 
[the defendant] guilty.”) (internal citation omitted).                    
    Finally, “the availability of willing alibi witnesses must . . . be considered in 

light of . . . otherwise flimsy evidence supporting [a defendant’s] conviction.”  
Avery v. Prelesnik, 548 F.3d 434, 439 (6th Cir. 2008) (citing Strickland, 446 U.S. 
at 696).  Here, contrary to Respondent’s assertions, the State’s case against 

Upshaw “was not overwhelming.”  Matthews, 319 F.3d at 790.  The State’s chief 
evidence as to Upshaw’s guilt was Williams’ testimony.  But eyewitness testimony 
is “inherent[ly] unreliab[le].”  Ferensic v. Birkett, 501 F.3d 469, 482 (6th Cir. 
2007) (quoting Watkins v. Sowders, 449 U.S. 341, 352 (1981)); see also Wilson v. 

Cowan, 578 F.2d 166, 168 (6th Cir. 1978) (explaining that “the identification of 
strangers in violent crime situations is fraught with the hazard of mistake” and 
collecting cases).  Furthermore, “[e]ven putting aside [the Sixth Circuit’s] ‘grave 

reservations concerning the reliability of eyewitness testimony,’ the accuracy of 
[the] identification [in this case] is highly suspect” given the particular 
circumstances under which Williams saw the shooter.  Clinkscale, 375 F.3d at 445 

(quoting Blackburn, 828 F.2d at 1186).  Not only was Williams unable to see the 
shooter’s entire face, which was covered with a t-shirt, but she viewed him while 
in a state of fear, while he pointed a gun and shot at her six or seven times.  (ECF 

No. 6-2 at Pg ID 237-38); see, e.g., Thomas v. Heidle, 615 F. App’x 271, 278 (6th 
Cir. 2015) (listing “factors . . . known to create problems for accurate eyewitness 
testimony,” including “stress,” “fright,” and “weapon focus”).            
    Apart from Williams’ testimony, the State’s only evidence against Upshaw 

was that he had been arrested for home invasion with Walker several hours after 
the gas station was robbed.10  (ECF No. 6-10 at Pg ID 691-94.)  But the Sixth 
Circuit has found prejudice in the face of far more damning evidence.  In 

Matthews, for example, the court found prejudice where trial counsel failed to call 
the defendant’s family members as alibi witnesses, despite evidence that the 
defendant had (1) sold jewelry stolen from the victim’s house within days of his 


10 Respondent argues that this evidence is “highly incriminating” and must be 
considered when deciding Strickland’s prejudice prong.  (ECF No. 24 at Pg ID 
1649.)  But this argument fails to appreciate that the Court is not determining that 
the State court’s prejudice analysis was an unreasonable application of Strickland.  
Rather, the Michigan Court of Appeals’ prejudice analysis relies upon multiple 
objectively unreasonable factual determinations and assumptions.  See 28 U.S.C. 
§ 2254(d)(2).  Because subsections (d)(1) and (2) of § 2254 are disjunctive, the 
Court is not required to also find that the State court’s prejudice analysis was an 
objectively unreasonable application of Strickland.                       
murder, and (2) previously been photographed wearing a distinctive jacket that was 
also seen on a man fleeing the scene of the crime.  319 F.3d at 783-84, 789-90.  

Likewise, in Stewart, the court found prejudice where two alibi witnesses were 
unable to testify due to a deficient alibi notice, even though one of the State’s 
witnesses “testified that he saw [the defendant] holding a gun and point[ing] the 

gun . . . at the victim” and another testified that the defendant had “stated he was 
going to kill the victim.”  468 F.3d at 343-44, 357-59.                   
    “If [Upshaw’s] alibi witnesses are to be believed, they present a complete 
defense to the crime.”  United States v. Murillo, No. 07-20417, 2011 WL 5039800, 

at *13 (E.D. Mich. Oct. 24, 2011).  “Had even one alibi witness been permitted to 
testify,” Haugabook’s testimony would have been corroborated and far more 
persuasive.  Clinkscale, 375 F.3d at 445.  And the jury would not have been left to 

wonder why no one could account for Upshaw’s whereabouts at the time of the 
crime.  Without Upshaw’s alibis, however, “the only credible identifying witness’s 
testimony [was] virtually unchallenged” and the jury was “foreclosed . . . from 
hearing valuable countervailing evidence.”  Blackburn, 828 F.2d at 1186.  Thus, 

because there is a substantial likelihood that the trial would have turned out 
differently if counsel had called even one alibi witness, habeas relief is appropriate 
based on Claim I.                                                         
    B.   Prosecutor’s Dismissal of Six Black Prospective Jurors (Claim III) 
    In his third claim, Upshaw argues that he was denied equal protection, in 

violation of the Fourteenth Amendment, when the prosecutor used six of her 
peremptory challenges against Black prospective jurors in violation of Batson.  
(ECF No. 1 at Pg ID 8.)  In Batson, the Supreme Court held that the Equal 

Protection Clause prohibits a prosecutor from using the State’s peremptory 
challenges for the purpose of excluding from the jury members of the defendant’s 
race.  476 U.S. at 96.                                                    
         1)   State Court’s Decision                                     

    The Michigan Court of Appeals rejected Upshaw’s Batson claim, 11     
summarizing the trial proceedings and reasoning:                          
    Our Supreme Court in Knight stated that Batson “announced a three-   
    step process for determining the constitutional propriety of a       
    peremptory challenge.”  [People v. Knight, 473 Mich. 324, 336        
    (2005)].  “First, the opponent of the peremptory challenge must make 
    a prima facie showing of discrimination.”  Id.  . . .  “Second, if the 
    trial court determines that a prima facie showing has been made, the 
    burden shifts to the proponent of the peremptory challenge to        
    articulate a race-neutral explanation for the strike.”  Id. at 337. . . .  
    “Finally, if the proponent provides a race-neutral explanation as a  
    matter of law, the trial court must then determine whether the race- 

11 While Upshaw last presented his Batson claim in his July 10, 2018 motion for 
relief from judgment (ECF No. 6-12 at Pg ID 763-65), the State trial court made no 
reference to the claim when denying the motion (ECF No. 6-13 at Pg ID 855-59.)  
The Court therefore “look[s] through the [trial court’s] unexplained decision to the 
last related state-court decision that does provide a relevant rationale[.]”  Wilson v. 
Sellers, 138 S. Ct. 1188, 1192 (2018).                                    
neutral explanation is a pretext and whether the opponent of the     
challenge has proved purposeful discrimination.”  Id. at 337-338. . . . 

    In the instant case, after the prosecutor exercised multiple    
peremptory challenges, Upshaw’s attorney informed the trial court    
that he had a motion to make.  The trial court excused the           
veniremembers and those remaining in the jury pool.  Upshaw’s        
counsel then presented a Batson challenge, arguing that six of the   
eight peremptory challenges exercised by the prosecutor pertained to 
African-Americans; both defendants are African-American.  Walker’s   
attorney indicated that he would join in the motion.  Other than noting 
the number of peremptory challenges exercised by the prosecutor and  
the race of those excused veniremembers, the defense attorneys did   
not provide any additional argument in support of making a prima     
facie case of discrimination.  The trial court, failing to indicate  
whether defendants had made the required prima facie showing of      
discrimination, asked the prosecutor whether she had any response as 
to why the African-American veniremembers were excused.  The         
prosecutor then provided race-neutral explanations for the strikes in 
regard to four of the African-American veniremembers.  Before the    
prosecutor could continue with her explanations concerning the       
remaining two African-American veniremembers, the trial court        
interjected, asking Upshaw’s counsel whether he had any response.    
Upshaw’s attorney then began addressing and challenging the race-    
neutral explanation given by the prosecutor in regard to one of the  
stricken veniremembers.  The trial court quickly chimed in, “Yes, but 
are you saying that’s a pretext to get her off the jury because she’s 
black?”  Upshaw’s counsel replied in the affirmative, at which point 
the trial court queried, “Anything else?”  Upshaw’s attorney replied, 
“No, your Honor.”  Walker’s attorney also indicated that he had      
nothing to add.                                                      

    Next, the trial court ruled:                                    

    Well, the prosecutor has given some explanation other           
    than race being challenged.  I don’t think the Batson           
    motion can be sustained.  I don’t have any further              
    comments on whether it’s good or bad. . . . .                   
    After some further discussion on the matter, Upshaw’s attorney  
began challenging the race-neutral explanation given by the          
prosecutor regarding another veniremember, but the trial court       
interrupted, making clear that it had denied the Batson motion.      

    In Knight, 473 Mich. at 339, our Supreme Court counseled the    
bench with respect to Batson challenges, stating that “trial courts must 
meticulously follow Batson’s three-step test, and we strongly urge our 
courts to clearly articulate their findings and conclusions on the   
record.”  The Court further noted that “when a trial court methodically 
adheres to Batson’s three-step test and clearly articulates its findings 
on the record, issues concerning what the trial court has ruled are  
significantly ameliorated.”  Id. at 338-339.  Here, unfortunately, the 
trial court failed to adhere to the directive announced by the Knight 
Court a decade earlier.                                              

    With respect to the first step, i.e., whether defendants made a 
prima facie showing of discrimination, actual proof of discrimination 
is not required.  Id. at 336.  And, given that there is no dispute that the 
veniremembers at issue in this case were members of a cognizable     
racial group and that peremptory challenges were exercised to exclude 
them from the jury, the question in regard to step one becomes       
whether all of the relevant circumstances raised an inference that the 
prosecutor struck the excluded veniremembers on the basis of race.   
Id.  The trial court’s statements on the bench failed to expressly   
indicate whether it found that defendants had made a prima facie case 
of discrimination.  Although such a finding might be implied because 
the court asked the prosecutor to articulate explanations for why    
veniremembers were stricken, the court’s ruling is ultimately unclear 
and muddled on the matter.  We cannot conclude, on the existing      
record, that defendants made a prima facie showing or case of racial 
discrimination.  While not binding precedent, we find persuasive the 
following discussion by the United States Court of Appeals for the   
Eleventh Circuit in United States v Ochoa-Vasquez, 428 F3d 1015,     
1044 ([11th Cir.] 2005):                                             

    In order to determine whether a Batson objector . . . has       
    established a prima facie case of discrimination, courts        
    must consider all relevant circumstances.  This Court has       
    cautioned that the mere fact of striking a juror or a set of    
         jurors of a particular race does not necessarily create an      
         inference of racial discrimination.  While statistical          
         evidence may support an inference of discrimination, it         
         can do so only when placed in context.  For example, the        
         number of persons struck takes on meaning only when             
         coupled with other information such as the racial               
         composition of the venire, the race of others struck, or        
         the voir dire answers of those who were struck compared         
         to the answers of those who were not struck. . . . .            

         The Eleventh Circuit observed that pertinent circumstances to   
    consider include the racial composition of remaining potential jurors, 
    “the percentage of jurors of a particular race or ethnicity struck and 
    the percentage of their representation on the venire,” whether       
    members of the relevant racial group served unchallenged on the jury, 
    and whether the prosecutor used all or nearly all of his or her      
    challenges to strike veniremembers of a particular race.  Id. at 1044-
    1045.  Here, the only argument posed by defense counsel during voir  
    dire was that six of eight peremptory challenges exercised by the    
    prosecutor concerned veniremembers of the same race as defendants.   
    Neither Walker nor Upshaw’s attorney made a record regarding any     
    other surrounding circumstance, such as those alluded to in Ochoa-   
    Vasquez, nor are we able to discern from the existing record whether 
    additional relevant facts or circumstances were present, e.g.,       
    information regarding the percentage of African-American jurors on   
    the venire.  Assuming that the trial court found that defendants had 
    made a prima facie case of discrimination, it erred in that part of its 
    analysis. Absent a prima facie showing of discrimination, the        
    remaining two steps in the Batson analysis are rendered moot.        
    Reversal is unwarranted.                                             

2016 WL 2942215, *7-8 (original brackets and footnote omitted).           
         2)   Overall Analysis                                           
    Although the Michigan Court of Appeals correctly identified Batson as 
providing the relevant standard, its application of Batson and its progeny was 
objectively unreasonable.  28 U.S.C. § 2254(d)(1).  Specifically, the State court 
failed to adhere to the Supreme Court’s admonition that “[o]nce a prosecutor has 
offered a race-neutral explanation for the peremptory challenges and the trial court 

has ruled on the ultimate question of intentional discrimination, the preliminary 
issue of whether the defendant had made a prima facie showing becomes moot.”  
Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion).12    

    In Lancaster v. Adams, the Sixth Circuit, applying Batson and Hernandez, 
held that the State court unreasonably applied Supreme Court precedent by solely 
analyzing step one of the Batson analysis—the strength of the petitioner’s prima 
facie showing of discrimination—even though “the trial court . . . had ruled on the 

ultimate question under Batson.”  324 F.3d 423, 435 (6th Cir. 2003).  Here, like in 


12 Respondent argues that Hernandez is not “clearly established” for purposes of 
AEDPA because it was a plurality opinion.  (ECF No. 5 at Pg ID 183.)  The Sixth 
Circuit has explicitly rejected this argument, however.  See Drain v. Woods, 595 F. 
App’x 558, 570 (6th Cir. 2014) (citation omitted) (“This Court has previously 
applied Hernandez’s mootness holding as clearly established law and we see no 
reason to treat it otherwise now.”); see also Braxton v, Gansheimer, 561 F.3d 453, 
461 (6th Cir. 2009) (treating Hernandez’s mootness holding as clearly established); 
Smith v. Stegall, 385 F.3d 993, 998 (6th Cir. 2004) (“We are . . . bound by any 
prior Sixth Circuit decisions concluding that federal law on a particular issue has 
been ‘clearly established’ by certain holdings of the Supreme Court.”).  Moreover, 
the concurring justices in Hernandez “wr[o]te separately because [they] believe[d] 
that the plurality opinion [went] further than it need[ed] to in assessing the 
constitutionality of the prosecutor’s asserted justification for his peremptory 
strikes.”  Hernandez, 500 U.S. at 372 (O’Connor, J., concurring in the judgment).  
However, they otherwise “agree[d] with [the plurality’s] analysis of th[e 
discriminatory intent] issue,” a necessary subset of which was its preliminary 
mootness determination.  Id.                                              
Lancaster, the trial court reached step two and three of the Batson inquiry,13 but the 
court of appeals nevertheless analyzed the prima facie issue anew and rested its 

decision solely on that issue.  (ECF No. 6-7 at Pg ID 427; ECF No. 6-14 at Pg ID 
870.)  This was an unreasonable application of Batson and Hernandez.  See 
Lancaster, 324 F.3d at 435; cf. Braxton v. Gansheimer, 561 F.3d 453, 461 (6th Cir. 

2009) (citing Lancaster, 324 F.3d at 435) (concluding “that the Ohio Court of 
Appeals’ application of Batson and Hernandez was neither erroneous nor    
unreasonable because the appellate court did not rely solely upon the moot issue in 
rejecting [the petitioner’s] Batson claim”) (emphasis added).             

    Accordingly, the Court will review de novo the trial court’s Batson inquiry, 
“unencumbered by the deference AEDPA normally requires.”  Rice, 660 F.3d at 
251-52 (quoting Panetti v. Quarterman, 551 U.S. 930, 948 (2007)); see also id. 

(citing Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011); Smith v. Bradshaw, 591 
F.3d 517, 522, 525 (6th Cir. 2010)) (explaining that a claim adjudicated on the 
merits is review de novo “if the petitioner shows, by virtue of one of its exceptions, 
that the relitigation bar of § 2254(d) does not apply” and explaining that one of 




13 As set forth in more detail below, the trial court failed to conduct the proper 
analysis at step three. However, this failure does not change the fact that the court 
still reached a final decision on the merits of Upshaw’s motion, mooting the prima 
facie inquiry on appeal.                                                  
those exceptions includes the state court’s unreasonable application of clearly 
established law).                                                         

         3)   Batson Steps Two and Three                                 
    As set forth above, “[Upshaw] met his burden [at step one] because the 
prosecutor proceeded to step two of Batson before the trial court made a ruling at 

step one.  As a result, ‘the preliminary issue of whether [Upshaw] . . . made a 
prima facie showing [is] moot.’”  Rice, 660 F.3d at 258 (quoting Braxton, 561 F.3d 
at 461); see Hernandez, 500 U.S. at 355 (plurality opinion).  Accordingly, the 
Court proceeds directly to steps two and three.                           

    At step two, “the burden shifts to the prosecutor to articulate a race-neutral 
explanation for striking the jurors in question.”  Hernandez, 500 U.S. at 358 (citing 
Batson, 476 U.S. at 97-98); see Johnson v. California, 545 U.S. 162, 171 (2005) 

(noting that “even . . . frivolous or utterly nonsensical justification[s]” are 
sufficient to satisfy this step of the inquiry).  Finally, step three requires the trial 
court to “determine whether the defendant has carried his burden of proving 
purposeful discrimination.”  Hernandez, 500 U.S. at 358 (citing Batson, 476 U.S. 

at 98); see Bryan v. Bobby, 843 F.3d 1099, 1110 (6th Cir. 2016) (citing Miller-El v. 
Cockrell, 537 U.S. 322, 339 (2003)) (explaining that “[t]he critical question here is 
. . . whether the trial court finds the prosecutor’s race-neutral explanations credible 

or pretextual”).                                                          
    Upshaw’s counsel made his Batson motion after the prosecutor exercised 
peremptory challenges against eight prospective jurors, six of whom were Black.  

(ECF No. 6-14 at Pg ID 869.)  And although Upshaw’s counsel initially referenced 
only two of the stricken Black jurors by name, it is clear that his challenge 
encompassed all six.  (ECF No. 6-7 at Pg ID 426 (arguing that “[a]ll of them had 

neutral responses that they could be fair and impartial”)); see People v. Knight, 701 
N.W.2d 715, 728 (2005) (explaining that Batson objections launched after several 
jurors are stricken apply “to all strikes in [an] alleged pattern”).      
    After moving past the prima facie determination, the trial court engaged the 

attorneys in the following colloquy:                                      
    THE COURT: Do you have any response why they were challenged?        

    [PROSECUTOR]: Well, do you want me to go specifically one by         
    one, Judge?                                                          

    THE COURT: Go ahead.                                                 

    [PROSECUTOR]: Ms. Stinson, I dismissed recently because she          
    seemed to have very delayed responses to questions as if she really  
    wasn’t focused or paying attention and she’s an older female.  As    
    relates to Ms. Williams, Ms. Williams is convicted of a CCW.  Mr.    
    Smith was in seat #6, I believe.                                     

    THE COURT: He was.  He’s the jury with had [sic] the relatives in    
    prison.                                                              

    [PROSECUTOR]: Yes, thank you, Judge.  That is correct.  Ms. Jones,   
    was a student, I believe.  I believe she was too young, in my opinion.  
    Too young for this particular case.  Not based on her race, but based 
    on her age.  I also thought that when I watched her, her demeanor was 
very distracted.  You’d have to repeat questions to her as if she really 
wasn’t listening.  That is seat #13.  I think that I’ve established— 

THE COURT: Mr. Blake?                                                

MR. BLAKE: Well, Judge, too young?  Apparently she’s not too         
young, Ms. Jones, to be a juror.  So, that particular response is—   

THE COURT: Yes, but are you saying that’s a pretext to get her off   
the jury because she’s black?                                        

MR. BLAKE: Yes, Judge.                                               

THE COURT: Anything else?                                            

MR. BLAKE: No, your Honor.                                           

THE COURT: Mr. Goze?                                                 

[WALKER’S COUNSEL]: Just joining what the Counsel said.              

THE COURT: Well, the Prosecutor has given some explanation other     
than race being challenged.  I don’t think the Batson motion can be  
sustained.  I don’t have any further comments on whether it’s good or 
bad.  That’s the strategy of a trial.  The Batson challenge, well, see 
Batson would be to a specific juror.  Were you challenging her       
excusal of the last, of White and Stinson?                           

MR. BLAKE: Of both of the Jones’; Pamela Jones.                      

THE COURT: No, you can’t do it that way.  Once you say there’s a     
pattern, then you challenge a specific juror challenge.              

MR. BLAKE: Well, Judge, with respect to Ms. Stinson, the fact that   
she’s elderly.  She gave direct responses, although they weren’t rapid 
speed, but her answers were clear and concise and we’d ask the Court 
not to excuse her.                                                   
    THE COURT: Denied.  As to Ms. White?  She was challenged in the      
    last challenges by the People.  Was she the student?  Ms. White has  
    not been challenged?                                                 

    [PROSECUTOR]: Ms. White was in seat #14.  She was a white            
    female.                                                              

    THE COURT: Oh, then it doesn’t apply.                                

(ECF No. 6-7 at Pg ID 426-28.)                                            

    “In criminal trials, trial judges possess the primary responsibility to enforce 
Batson and prevent racial discrimination from seeping into the jury selection 
process.”  Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019).  In this instance, 
the trial court failed to shoulder this burden.                           
    Although the trial court directed the prosecutor to explain her strikes 
“specifically one by one,” the prosecutor offered race-neutral explanations for her 
strikes against only three jurors: Margie Stinson, Perrice Williams, and Kimberly 
Jones.  (ECF No. 6-7 at Pg ID 426-27.)  The trial court provided the race-neutral 
explanation for the prosecutor’s excusal of a fourth juror, Donald Smith.  (Id. at Pg 
ID 427.)  And no race-neutral explanations were ever proffered for the prosecutor’s 
strikes of Latrice Wilborn and Pamela Jones.  (Id. at Pg ID 426-28.)  Finally, rather 
than properly evaluating the prosecutor’s explanations for any indications of 
pretext, as required by Batson, the trial court found that there had been no 
discrimination merely because “the Prosecutor ha[d] given some explanation other 
than race being challenged.”  (Id. at Pg ID 427.)  These errors warrant habeas 
relief.                                                                   

    Batson itself makes clear that a trial court cannot “flatly reject[] [an] 
objection [to a peremptory strike] without requiring the prosecutor to give an 
explanation for [her] action.”  476 U.S. at 100 (emphasis added).  However, that is 

precisely what the trial court did with respect to Wilborn and Pamela Jones.  (ECF 
No. 6-7 at Pg ID 427-28.)                                                 
    In addition, with respect to Smith, the trial court irreparably tainted the 
Batson inquiry by supplying the prosecutor with a race-neutral reason the court 

would find acceptable: that Smith had relatives in prison.  (ECF No. 6-7 at Pg ID 
427); see Flowers, 139 S. Ct. at 2243-44 (“[T]he prosecutor must provide race-
neutral reasons for the strikes).  The trial court must consider the prosecutor’s 

race-neutral explanations in light of all of the relevant facts and circumstances, and 
in light of the arguments of the parties.”) (emphasis added).  Although the 
prosecutor implicitly adopted the trial court’s explanation by offering him thanks, 
the damage was done.  (ECF No. 6-7 at Pg ID 427.)  “[W]hen a trial court offers its 

own speculation as to the prosecutor’s reasons for striking minority jurors, it 
essentially disregards its own core function under Batson—to evaluate the reasons 
offered by the prosecutor, including the prosecutor’s demeanor and other  

contextual information, in order to determine the prosecutor’s true intent.”  
Johnson v. Martin, 3 F.4th 1210, 1227 (10th Cir. 2021) (citing Flowers, 139 S. Ct. 
at 2243-44); see Paulino v. Castro, 371 F.3d 1083, 1089-90 (9th Cir. 2004) (“[I]t 

does not matter that the prosecutor might have had good reasons to strike the 
prospective jurors.  What matters is the real reason they were stricken.”).  In 
suggesting a race-neutral reason before the prosecutor could supply one herself, the 

trial court impermissibly signaled to the prosecutor that this was a reason the court 
was prepared to find credible and never explored the prosecutor’s real reason. 
    Finally, with respect to Stinson, Williams, and Kimberly Jones, those jurors 
for whom the prosecutor actually articulated a race-neutral explanation, the trial 

court decided the ultimate question of discrimination without conducting the 
analysis “constitutionally required” at step three.  Rice, 660 F.3d at 258.  “The 
third step is important; Batson imposes upon the trial court a strict constitutional 

‘duty to determine if the defendant has established purposeful discrimination.’”  Id. 
at 250 (quoting Batson, 476 U.S. at 98).  “[T]he critical question” at step three is 
“the persuasiveness of the prosecutor’s justification for [her] peremptory strike.”  
Cockrell, 537 U.S. at 338-39.  Here, although the trial court briefly alluded to 

pretext, it is clear from the record that the court did not actually focus on that issue.  
Instead, the court summarily concluded that there had been no discrimination 
purely because “the Prosecutor . . . [gave] some explanation other than race being 

challenged.”  (ECF No. 6-7 at Pg ID 427 (emphasis added).)                
    A trial court’s determination at step three is a “historical fact” that may be 
overturned only if “clearly erroneous.”  Hernandez, 500 U.S. at 367-69; see Rice, 

660 F.3d at 242 (citing Snyder v. Louisiana, 552 U.S. 472, 477 (2008)); Lancaster, 
324 F.3d at 429 (internal quotation marks and citations omitted) (“Under AEDPA, 
primary or historical facts found by state courts are presumed correct and are 

rebuttable only by clear and convincing evidence.”).  Here, the trial court’s step 
three determination was clearly erroneous for three reasons.  First, the court did not 
“require[e] the prosecutor to give an explanation for [two of her peremptory] 
action[s.]”  Batson, 476 U.S. at 100.  Second, the trial court suggested a race-

neutral reason for one of the strikes that the prosecutor could adopt.  See Flowers, 
139 S. Ct. at 2243-44; Johnson, 3 F.4th at 1227.  Third, the court considered only 
whether “the Prosecutor ha[d] given some explanation other than race being 

challenged” (ECF No. 6-7 at Pg ID 427), as opposed to “the persuasiveness of 
[her] justification for [the] peremptory strike[s,]” Cockrell, 537 U.S. at 338-39.14 



14 Even if the trial court conducted a proper step three inquiry as to Stinson, 
Williams, and Kimberly Jones, Upshaw would be entitled to habeas relief based on 
the other errors addressed above—namely, the prosecutor’s failure to advance a 
race-neutral explanation for her strikes against Wilborn and Pamela Jones and the 
trial court’s impermissible suggestion of a race-neutral reason for Smith’s excusal.  
For this reason, the Court does not attempt to review the prosecutor’s explanations 
for Stinson, Williams, and Kimberly Jones using only the cold record.     
    Respondent argues that “Upshaw’s counsel only challenged two of [the 
prosecutor’s] explanations as pretextual” and that “because he failed to argue that 

the remaining challenged jurors were dismissed for discriminatory reasons, he has 
failed to meet his burden to succeed on his Batson claim.”  (ECF No. 5 at Pg ID 
186.)  Although Respondent is correct that Upshaw carries the final “burden of 

proving purposeful discrimination,” Johnson, 545 U.S. at 171, Respondent’s 
argument ultimately lacks merit.  True, the Sixth Circuit has “held that once the 
proponent of the peremptory strike proffers a race-neutral explanation, the 
opposing party has the burden to rebut those reasons on the record,” and that 

“[f]ailure to rebut race-neutral explanations or the district court’s conclusion will 
result in a plain error review.”  United States v. McAllister, 693 F.3d 572, 582 (6th 
Cir. 2012) (citing United States v. Jackson, 347 F.3d 598, 605 (6th Cir. 2003)).  
But even assuming that this plain error rule is valid,15 Respondent’s logic at most 


15 The Court questions whether this interpretation of the plain error doctrine is 
consistent with precedent.  See United States v. Davis, 809 F.2d 1194, 1202 (6th 
Cir. 1987) (“Batson does not require rebuttal of the Government’s explanation by 
defense counsel. . . . Once the defendants had established a prima facie case of 
racial motivation sufficient for the district court to make an inquiry of the 
Government, there was nothing more defendants were required to do.”); see also 
Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) 
(explaining that “prior decision[s] [of the Sixth Circuit] remain[] controlling 
authority” unless abrogated by the Supreme Court or the Sixth Circuit sitting en 
banc).  The “failure to rebut” rule appears to stem from a footnote in United States 
v. Wilson, 11 F. App’x 474, 476 n.3 (6th Cir. 2001), which cited neither Batson nor 
its progeny and instead focused on the doctrine of plain error more generally.  But 
applies to the prosecutor’s explanations for Stinson, Williams, Kimberly Jones, and 
Smith.                                                                    

    Respondent ignores that the prosecutor never offered race-neutral    
explanations for striking Wilborn and Pamela Jones, and that accordingly, there 
was “no race-neutral evidence [for the trial court] to weigh,” Paulino v. Harrison, 

542 F.3d 692, 703 (9th Cir. 2008), and nothing for Blake to rebut, see Johnson, 
545 U.S. at 171 n.6 (citation omitted) (“[Where] the prosecutor declines to respond 
to a trial judge’s inquiry regarding [her] justification for making a strike, the 
evidence before the judge . . . consist[s] not only of the original facts from which 

the prima facie case was established, but also the prosecutor’s refusal to justify 
[her] strike in light of the court’s request.  Such a refusal . . . provide[s] additional 
support for the inference of discrimination raised by a defendant’s prima facie 

case.”).  Furthermore, despite the prosecutor’s failure to come forward with race-
neutral explanations, Upshaw’s counsel reiterated that he was challenging the 


this was contrary to the Sixth Circuit’s earlier holding in Davis, and the Supreme 
Court’s Batson cases suggest no such rule.  See, e.g., Cockrell, 537 U.S. at 326 
(“[I]f [a prima facie] showing is made, the prosecutor must then offer a race-
neutral basis for striking the juror in question.  Third, in light of the parties’ 
submissions, the trial court must determine whether the defendant has shown 
purposeful discrimination.”).  In any case, because the trial court’s summary denial 
of Upshaw’s motion in the absence of two race-neutral explanations from the 
prosecutor could not withstand even plain error review, the Court need not resolve 
this conflict.                                                            
strike of Pamela Jones, essentially renewing his Batson objection.  (ECF No. 6-7 at 
Pg ID 428.)  The prosecutor offered no response.  (Id.).  Consequently, even if 

Respondent’s plain error argument had merit with respect to the other jurors 
stricken by the prosecutor, the record still supports an inference of purposeful 
discrimination as to Pamela Jones.  Respondent has made no arguments to the 

contrary.                                                                 
         4)   Remedy                                                     
         Because “even a single instance of race discrimination against a 
prospective juror is impermissible,” Flowers, 139 S. Ct. at 2242, the only 

remaining question is the proper remedy.  “District courts have ‘broad discretion in 
conditioning a judgment granting habeas relief.’”  Morrell v. Wardens, 12 F.4th 
626, 631 (6th Cir. 2021) (quoting Hilton v. Braunskill, 481 U.S. 770, 775 (1987)); 

see also 28 U.S.C. § 2243 (directing habeas courts to “dispose of the matter as law 
and justice require”).                                                    
    The Sixth Circuit has not addressed this precise situation.16  The Second, 
Seventh, and Tenth Circuits have indicated that a district court presented with these 


16 The Sixth Circuit addressed a similar situation in Ewing v. Horton, 914 F.3d 
1027 (6th Cir. 2019), which involved a claim of extraneous influence on the jury 
requiring an evidentiary hearing “to afford the defendant the opportunity to 
establish actual bias” pursuant to Remmer v. United States, 347 U.S. 227, 229-30 
(1954).  The Ewing court acknowledged “that the passing of time since [the 
defendant]’s conviction eight years ago may make it difficult to conduct a suitable 
circumstances must remand for a new trial if the passage of time since jury 
selection renders it “impossible or unsatisfactory” for the state court to conduct a 

hearing attempting “to reconstruct the prosecutor’s state of mind at the time of jury 
selection.”  Jordan v. Lefevre, 206 F.3d 196, 202 (2d Cir. 2000); accord Johnson v. 
Martin, 3 F.4th at 1227 (“If the district court concludes that a Batson   

reconstruction hearing is impossible or unsatisfactory, it must grant habeas relief in 
the form of an order that [the petitioner] be released from custody unless the State 
grants him a new trial within 120 days from the entry of the district court’s 
order.”); United States v. McMath, 559 F.3d 657, 666 (7th Cir. 2009) (same).  This 

is the approach the Supreme Court took in Snyder v. Louisiana, albeit not in a 
habeas posture.  See 552 U.S. at 486 (declining to remand for judicial factfinding 
because roughly eleven years had passed since the petitioner’s trial).    

    Here, like Snyder, there is no “realistic possibility that [Batson’s] subtle 
question of causation could be profitably explored further” due to the eight-year 

Remmer hearing at this stage,” but concluded that it would not be impossible.  914 
F.3d at 1033-34.  Its decision, however, was largely based upon the fact that the 
defendant had not shown actual prejudice, and that a hearing to determine 
prejudice was the Supreme Court’s well-established remedy for “allegations of 
juror partiality.”  Id. at 1031.  Here, in contrast, Upshaw’s “Batson error is 
structural, requiring automatic reversal without a showing of prejudice.”  United 
States v. Whiteside, 747 F. App’x 387, 396 n.6 (6th Cir. 2018) (citing McAllister, 
693 F.3d at 582 n.5).  And the Supreme Court has recognized that improper Batson 
factfinding cannot realistically be explored if too much time has passed between 
jury selection and remand.  See Snyder, 552 U.S. at 486.  Accordingly, Ewing is 
not controlling.                                                          
lapse since Upshaw’s trial.  Id.  The trial court judge is no longer on the bench but, 
even if he were, conditioning the writ upon a reconstruction hearing at this late 

juncture would place an unreasonable burden on both the prosecutor and the judge 
with unreliable results.  See Jones v. Butler, 864 F.2d 348, 370 (5th Cir. 1988) 
(“Years after trial, the prosecutor cannot adequately reconstruct his reasons for 

striking a venireman.  Nor can the judge recall whether he believed a potential 
juror’s statement that any alleged biases would not prevent him from being a fair 
and impartial juror.”); see also United States v. Biaggi, 909 F.2d 662, 679 (2d Cir. 
1990) (“Postponing consideration of a Batson claim until the trial is . . . completed, 

as in this case, risks infecting what would have been the prosecutor’s spontaneous 
explanations with contrived rationalizations, and may create a subtle pressure for 
even the most conscientious [trial] judge to accept explanations of borderline 

plausibility to avoid . . . a new trial.”); see generally William H. Burgess & 
Douglas G. Smith, The Proper Remedy for a Lack of Batson Findings: The Fall-
Out from Snyder v. Louisiana, 101 J. Crim. L. & Criminology 1, 24 (2011) (“In 
addition to the unreasonableness of asking trial courts to make retroactive findings 

on Batson challenges, such requests invite post hoc justifications on remand from 
prosecutors for making peremptory challenges and from trial judges in allowing 
them.”).                                                                  
    For these reasons, the Court concludes that Upshaw is entitled to relief based 
on Claim III, as well, and a new trial is the only way to cure the violation of 

Upshaw’s Fourteenth Amendment rights.                                     
    C.   Trial Court’s Denial of an Adjournment (Claim II)               
    In his second claim, Upshaw argues that he was denied due process when 

the trial court denied his request for an adjournment to give Blake the opportunity 
to prepare for trial.  (ECF No. 1 at Pg ID 7.)                            
    The Supreme Court has cautioned that “broad discretion must be granted [to] 
trial courts on matters of continuances.”  Morris v. Slappy, 461 U.S. 1, 11 (1983).  

Nevertheless, “a myopic insistence upon expeditiousness in the face of a justifiable 
request for delay can render the right to defend with counsel an empty formality.”  
Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (citing Chandler v. Fretag, 348 U.S. 3 

(1954)).  To warrant habeas relief under due process principles, the “petitioner 
must show that [the trial court’s] error was so egregious as to deprive him of a 
fundamentally fair adjudication” and that “the denial of his request resulted in 
actual prejudice to his defense.”  Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 

2003) (citation omitted).  “Actual prejudice may be demonstrated by showing that 
additional time would have made relevant witnesses available or otherwise 
benefited the defense.”  Id. (citation omitted).                          
    As set forth above, Upshaw requested an adjournment a week before trial.  
(ECF No. 6-5 at Pg ID 321-22.)  Upshaw explained to the trial court that he 

recently had to replace Paige and wanted Blake, who had neither reviewed the 
video of the incident nor acquired the preliminary examination transcript, to have 
more time to prepare for trial.  (Id. at Pg ID 322.) 17  Upshaw did not delve into the 

alibi issue because he was worried about letting the prosecutor in on his defense 
strategy and “[didn’t] really know how . . . this stuff works.”  (ECF No. 23 at Pg 
ID 1578.)  The trial court denied Upshaw’s request without explanation, stating, 
“I’m not granting an adjournment at this point.  We’ll see what happens.”  (ECF 

No. 6-5 at Pg ID 322.)                                                    
    Although the Court strongly disapproves of this “[w]e’ll see what happens” 
approach, the trial judge’s decision ultimately did not amount to a denial of due 

process.  That is because Blake, who had authority to make strategic decisions for 
Upshaw, see Taylor v. Illinois, 484 U.S. 400, 417-18 (1988), represented that a 
continuance was unnecessary (ECF No. 6-5 at Pg ID 322).  This significantly 
undercut Upshaw’s claim that Blake needed extra time to prepare for trial, 

especially in the absence of any information about Upshaw’s alibi witnesses.  (Id.).  
Accordingly, while Blake’s statement that additional time would not be necessary 


17 The trial transcript reflects that Blake ultimately did familiarize himself with 
those items prior to trial, even if he had not yet reviewed them at the time of the 
pre-trial conference. (ECF No. 6-8 at Pg ID 534, 567.)                    
underscores his ineffectiveness, it also shows that the trial court’s denial of 
Upshaw’s request was not an “error . . . so egregious as to deprive [Upshaw] of a 

fundamentally fair adjudication.”  Powell, 332 F.3d at 396.  Habeas relief is thus 
unwarranted on Claim II.                                                  
V.   Conclusion                                                           

    In summary, the Court concludes that Upshaw is entitled to the writ of 
habeas corpus based on Claims I, III, and VI.                             
    Accordingly,                                                         
    IT IS ORDERED that Upshaw’s application for the writ of habeas corpus 

pursuant to 28 U.S.C. § 2254 is GRANTED and his Michigan convictions for  
felony-firearm, armed robbery, and carrying a dangerous weapon are VACATED. 
    IT IS FURTHER ORDERED that the State of Michigan must grant          

Upshaw a new trial within 120 days of the date of this Opinion and Order or 
discharge him from any further punishment related to these convictions.   
    IT IS SO ORDERED.                                                    
                                  s/ Linda V. Parker                     
                                  LINDA V. PARKER                        
                                  U.S. DISTRICT JUDGE                    
Dated: July 14, 2022