Ceasor v. Ocwieja, 070116 FED6, 15-1145

Docket Nº:15-1145
Opinion Judge:CLAY, Circuit Judge.
Party Name:TERRY CEASOR, Petitioner-Appellant, v. JOHN OCWIEJA, Warden, Respondent-Appellee.
Judge Panel:BEFORE: COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.
Case Date:July 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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TERRY CEASOR, Petitioner-Appellant,

v.

JOHN OCWIEJA, Warden, Respondent-Appellee.

No. 15-1145

United States Court of Appeals, Sixth Circuit

July 1, 2016

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.

CLAY, Circuit Judge.

In 2005, a Michigan jury convicted Petitioner Terry Ceasor of one count of first-degree child abuse, in violation of Mich. Comp. Laws § 750.136b(2), based on allegations that he had caused his girlfriend's 16-month-old son, Brenden Genna, to suffer a subdural hematoma1 and retinal hemorrhaging.2 The prosecution's theory was that Ceasor inflicted these injuries by violently shaking or slamming Brenden while the baby's mother, Cheryl Genna, was out of the house. The linchpin of the prosecution's theory was the expert testimony of Dr. Holly Gilmer-Hill, who opined that Brenden's subdural hematoma and retinal hemorrhages were (1) symptoms commonly associated with shaken baby syndrome ("SBS"), (2) "caused by an intentional act, " and (3) inconsistent with Ceasor's version of the facts-that Brenden's injuries resulted from an accidental fall from the couch. Following Ceasor's conviction, the trial court sentenced him to a term of two to 15 years in prison.3 On direct appeal, the Michigan Court of Appeals affirmed Ceasor's conviction and sentence, and the Michigan Supreme Court denied leave to appeal.

In 2008, Ceasor filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. After staying Ceasor's federal habeas proceedings and permitting him to exhaust a claim for post-conviction relief in state court, the district court ultimately issued an order and judgment denying Ceasor's habeas petition. This timely appeal followed.

Ceasor's appeal raises two inextricable issues related to ineffective assistance of counsel. The first issue, which is more accurately characterized as a sub-issue of the main issue before this Court, is whether Ceasor has demonstrated the strength of his claim that his trial counsel rendered constitutionally ineffective assistance by failing to retain an expert witness to rebut Dr. Gilmer-Hill's testimony due to his ignorance (or misapprehension) of Michigan law governing public funding for indigent defendants. The second issue is whether Ceasor's appellate counsel rendered ineffective assistance by (1) relying solely on the trial record to support Ceasor's ineffective assistance of trial counsel claim and (2) failing to file a separate motion to remand, pursuant to Mich. Ct. R. 7.211(C)(1), for an evidentiary hearing under People v. Ginther, 212 N.W.2d 922 (Mich. 1973) (a "Ginther hearing"). For the following reasons, we REVERSE the district court's judgment denying habeas relief and REMAND for an evidentiary hearing on the merits of Ceasor's ineffective assistance of appellate counsel claim.

I.

BACKGROUND

Ceasor's trial for first-degree child abuse lasted almost three days. Thereafter, the jury deliberated for nearly two days, and requested a deadlocked jury instruction, before returning a unanimous verdict of guilty. The following facts were averred to and established at trial.

A. Brenden's Injuries and Treatment

In June 2004, Ceasor began dating Cheryl Genna, Brenden Genna's mother. Both Genna and Ceasor described 16-month-old Brenden as an "active" child. Genna also had an older daughter, Derian, who was approximately seven-years-old at the time Brenden was injured.

At about 7:00 pm on October 2, 2004, Genna and her two children went to Ceasor's home in Port Huron, Michigan. They had visited the home before, and Genna's children had met and been alone with Ceasor "[s]everal times" in the past. At some point during the evening, Genna and Derian went to Blockbuster and China Lite, leaving Ceasor alone with Brenden. When they returned, Brenden was fine and showed no sign of injury.

On October 3, 2004, the day Brenden sustained his injuries, Genna woke up around 9:30 am and observed Ceasor coming back from giving Brenden his morning bottle. Both Genna and Ceasor-who testified in his own defense at trial-stated that it was normal for Ceasor to help care for Brenden by feeding him or changing his diaper. At around 10:30 am, Genna and Derian went to McDonald's to pick up breakfast while Ceasor remained at the house with Brenden. Once again, there was no indication that Brenden sustained injuries of any kind during the time he was alone with Ceasor.

Around 1:00 pm, Genna decided to drop Brenden off at his grandmother's house so she could take Derian swimming. However, when Ceasor saw that Brenden was still asleep, he told Genna "just let him sleep, go ahead and go, " and Genna agreed to let Ceasor babysit while she and Derian went swimming.

Genna and Derian left Ceasor's house around 2:30 pm, and were away from the house for approximately an hour-and-a-half. The questions surrounding what occurred during this hour-and-a-half formed the basis of the prosecution's child abuse charge against Ceasor.

At trial, Ceasor testified to the following. Brenden was still sleeping for at least 20 to 30 minutes after Genna and Derian left the house, but Ceasor eventually brought Brenden out to the living room so the baby could sit on the couch with him while he watched football. Initially, Brenden was relatively inactive, but when Ceasor brought him a jar of Gerber bananas, fruit snacks, and a granola bar from the kitchen, Brenden became excited and began to eat. After cleaning up, and as he was returning from the kitchen, Ceasor saw that Brenden was standing on the couch and facing the TV. Ceasor crawled up to the back of the couch on his hands and knees and he and Brenden began playing a game called "gotcha, " with Ceasor crawling behind the couch and Brenden running across the couch cushions. While they were playing, Ceasor noticed that Brenden's foot got stuck between the couch cushions a couple of times. Ceasor testified that during their game, Brenden was laughing and they were "having a good time."

When Brenden stopped playing in order to drink from his sippy cup, Ceasor "figured [he was] occupied enough" and stepped away to go to the bathroom. However, as he was urinating, Ceasor heard a thud that sounded like "two hits." Upon hearing the thud, Ceasor accidentally urinated on his hand, washed his hands without drying them, and ran out to the living room. There, he found Brenden wedged between the couch and the coffee table. At trial, Ceasor testified that there was "no way that [Brenden] went down in this position on his own, " saying: It wasn't like he was playing in this position. And, um, when I came out and saw him there, his head was, his head was flung back as far as the neck could go. And when I picked up [Brenden] he was like, it was like he was dead and he was like limp noodles . . . . I tried talking to him. I sprayed some water off my hands that were wet. Um, I touched his head. I, um, I tried everything I could do. I was calling his name.

(R. 7-8, PageID# 373).

Ceasor was on his way to call 911 when Genna and Derian came home from the pool. Genna initially laughed off Ceasor's statement that Brenden had fallen, thinking Ceasor was joking. However, when Ceasor said, "I'm serious, " and Genna saw that Brenden was unconscious, she began screaming the baby's name. Rather than call an ambulance, Ceasor and Genna decided to use Genna's car to drive Brenden to the emergency room at Port Huron Hospital, which was located a couple of minutes away from Ceasor's house. Genna did not observe any injuries to Brenden at this time, but noticed that his hair was wet.

Both Ceasor and Genna testified that Brenden regained consciousness shortly after they arrived at Port Huron. Thereafter, Genna began calling family members, including her mother, sisters, and Brenden's father. Around the time Genna called Brenden's father, Ceasor informed the hospital staff that he was not Brenden's father, but Genna's boyfriend.

Dr. Christopher Hunt, Brenden's attending physician at Port Huron and one of the prosecution's witnesses at trial, testified that when he initially assessed Brenden, the baby's pupils were unequal in size and he was unresponsive to verbal commands and painful stimuli. Dr. Hunt did not observe or document any signs of trauma or injury, including retinal hemorrhaging, and noted that Brenden's breathing sounds were normal. The medical staff did not have to intubate Brenden, but took a CAT scan that Dr. Hunt later reviewed with a radiologist. The CAT scan revealed that Brenden had a subdural hematoma with a "slight mass effect, " meaning that the blood beneath Brenden's dura4 had "start[ed] to push the brain to the...

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