Leonard v. Michigan (287 F. Supp. 2d 765, 2003)

REPORT AND RECOMMENDATION

CARMODY, United States Magistrate Judge.

This matter is before the Court on Leonard’s petition for writ of habeas corpus. In accordance with 28 U.S.C. § 686(b) authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of prisoner petitions, I recommend that Leonard’s petition be granted.

BACKGROUND

Following a 1994 bench trial before the Honorable John F. Foley, Petitioner was convicted of first degree criminal sexual conduct, armed robbery, and breaking and entering, for which he was sentenced to a term of 18-40 years imprisonment. After various facts had been brought to light regarding the unfairness of Petitioner’s trial, Judge Foley offered the following about Petitioner’s conviction:

I want to speak on substantial issues on appeal, and I want to say that in my 27 years of practice and my 12 years on the bench considering due process, fairness at trial, this is the greatest miscarriage of justice that I’ve been connected with and I’m embarrassed to be a part of it ... I start with my errors. My error was to leave ineffective counsel on this case, when I over and over again tried to get him to move, do something to get the expert witness that was needed here. He didn’t do it. He didn’t do it. Finally we got down to, as it turned out through Mr. Schuck’s investigation, there was only a few days before the trial, [defense counsel’s] first contact was made with the expert witness and that is the reason, by the way, for the $125 fee. It isn’t made very clear that at that time the expert witness was unable to come. He said he would have to drop everything and charge for all his time in the air, all his time, 24 hours a day, $125 to sit in his hotel room. That’s why I was unable to authorize that.

Then at the trial when he made his motion to adjourn and certainly indeed a large part of it was to get the expert witness. I want to get to that in a moment. I should have granted that adjournment and I should have then replaced the ineffective counsel.

What was so important about this expert witness — Court of Appeals is certainly misunderstanding my opinion — I think there is some per se right to have an expert witness, it’s in this circumstance, this expert witness, it was very important in this trial and the expert’s testimony was very important. Talking [as] the trier of fact here, very important to my decision, and it was a disgrace for this defendant to be there without an expert witness.

At that time, of course, I can only speculate as to what an expert witness might be able to do, but the State Appellate Defender Office went out and contacted the expert witness, paid for him and we found out at least some of the matters he would have testified to that could indeed have made a difference in the outcome of this trial

I want to conclude you have no idea as to whether Mr. Leonard committed these acts that he’s accused of. All I know is that he never has had a fair trial here and it would be a miscarriage of justice if he is never given a fair trial.

(Bond Motion Transcript, August 27, 1997, 16-18).

On August 5, 1994, Petitioner filed a claim of appeal, challenging his conviction. On December 4, 1994, before the Michigan Court of Appeals had addressed his appeal, Petitioner filed in the trial court a motion for a new trial, in which he asserted the following claims:

I. Defendant was eRRoneously denied THE APPOINTMENT OF AN EXPERT ON DNA ANALYSIS.

II. The TRIAL COURT erroneously denied Defendant a Continuanoe to obtain A NECESSARY EXPERT AND SO DENIED Defendant the effective assistanoe of counsel and a fair trial.

III. Defendant’s trial Counsel was ineffective in failing to obtain a NECESSARY DNA EXPERT FOR PREPARATION AND TRIAL AND IN FAILING TO CONTACT AND CALL ALIBI WITNESSES.

IV. Defendant’s purported waiver of a JURY WAS UNINTELLIGENT AND INVOL-' UNTARY WHERE THE COURT FAILED TO EXPLAIN THE NATURE OF THE RIGHT AND FAILED TO ASK ANY QUESTIONS ON VOL-UNTARINESS AS TO PROMISES OR THREATS.

The trial court held a hearing on Petitioner’s motion for new trial on June 6, 1995. Judge Foley granted Petitioner’s motion for a new trial, stating that:

All right. I’m prepared to rule at this time. First of all, taking up the — I am going to reserve on the argument of whether there was error in the waiver of jury trial and reserve on the error of whether the alibi defense that’s being raised now should call for a new trial. But going to the DNA matter, I had assumed for 1993 and 1994 that we were going to have an expert for the defendant. Counsel was — the history, as I recall, was retained counsel. He retained Dr. Grunbaum. And then I believe it was the family and the defendant ran out of money to be able to support paying the expert and the retained counsel, so we appointed counsel and then there were — as prosecutor stated many chambers conferences, very little on the record, to try to move the case forward for something to be done about any expert in here and arrangements made. So finally the Court set the motion on to hold what counsel calls the Frye-Davis hearing on DNA and I see, according to Doctor Grunbaum’s affidavit, he was contacted for the first time in many months — first time from the new appointed counsel — and asked to be here in a week and then that was followed by my talking to the expert.

I gather there was a misunderstanding about the fee. It was in chambers off the record. My understanding is he was going to charge for all his flight time and all his time in the hotels and it was far over our schedule which is allowed for expert witness fees.

So then I put the hearing over to allow defense counsel more time to get another expert. None was obtained. So eventually we just didn’t have one forthcoming, so we plunged ahead without one. That, I wasn’t too happy about it. But, of course, you never know what’s going to happen at trial because DNA would have been only part of the evidence, but it turned out to be the major part of the evidence and indeed I credited the DNA experts. They didn’t have any opposition.

And in this new and complicated science of DNA at this stage, not only O.J. Simpson, but every defendant is entitled to have at least one expert to help them out, both to act as advisor and to also testify. That’s even over and above, you know, the affidavit of Doctor Grunbaum and so forth.

Just should make another effort to get an expert and retry the case. I’m pleased that the — that with the defense counsel’s work that he does have so much work done and would appear if Doctor Grunbaum qualifies as an expert and there really was a misunderstanding on the fee arrangement, that he could be the one and we could be prepared to go right ahead rather quickly.

So for that reason, I’m going to grant the motion for a new trial.

(Hearing Transcript, June 6, 1995, 33-35).

The State appealed Judge Foley’s decision to the Michigan Court of Appeals, which subsequently consolidated it with Petitioner’s initial appeal. People v. Leonard, No. 178121 and 186776, order (Mich. Ct.App., September 18, 1995). In his subsequent brief in the Michigan Court of Appeals, Petitioner raised the following issues:

I. The TRIAL court did not err in determining that Dependant was denied a FAIR TRIAL WHERE HE DID NOT HAVE A DNA EXPERT

A. The Court Denied Defendant The Effective Assistance Of Counsel, His Right To Confrontation, And Due Process In Refusing To Appoint Defendant’s Expert

B. The Court Erroneously Denied Defendant A Continuance To Obtain A Necessary Expert

C. Counsel was Ineffective

D. The DNA Evidence Here Was Not Reliable

1. The Procedures Used Here Were Not Reliable

2. The DNA Evidence Here Was Inadmissible Because The MSP Protocols Have Never Been Validated By Independent Scientists And So Have Not Been Generally Accepted In The Relevant Scientific Community

3. The Statistical Evidence Was Also Unreliable and Inadmissible Here

II. The TRIAL COURT DID NOT COMMIT ANY PROCEDURAL ERRORS IN GRANTING DEFENDANT A NEW TRIAL

1. The Court Did Not Deny The Prosecutor The Right To Proper Notice and Service

2. The Court Did Not Erroneously Cut Off The Prosecutor’s Argument

3. The Court Provided Sufficient Findings of Fact

4. An Evidentiary Hearing Was Unnecessary

5. Dr. Grunbaum’s Affidavit Was Perfectly Proper And Relevant

III. Defense counsel was ineffective and denied Defendant a fair trial

IV. Defendant is entitled to a new trial BECAUSE HIS PURPORTED WAIVER OF JURY TRIAL WAS INVALID WHERE THE COURT FAILED TO ESTABLISH THAT THE WAIVER WAS VOLUNTARY AND INTELLIGENT

V. The prosecutor has presented no REASON TO DISQUALIFY THE TRIAL COURT

The Michigan Court of Appeals, apparently thinking it knew better than the trial judge sitting as the finder of fact, affirmed Leonard’s conviction and reversed the trial court’s order granting Petitioner a new trial. People v. Leonard, 224 Mich.App. 569, 569 N.W.2d 663 (1997). The court later denied Petitioner’s motion for rehearing. People v. Leonard, No. 178121 and 186776, order (Mich.Ct.App., November 18, 1997).

Petitioner subsequently applied to the Michigan Supreme Court for leave to appeal, asserting the following claims:

I. The TRIAL court DID NOT ERR IN DETERMINING that Defendant was denied a FAIR TRIAL WHERE HE DID NOT HAVE A DNA EXPERT

A. The Court Denied Defendant The Effective Assistance Of Counsel, His Right To Confrontation, And Due Process In Refusing To Appoint Defendant’s Expert

B. The Court Erroneously Denied Defendant A Continuance To Obtain A Necessary Expert

C. Counsel was Ineffective

D. The DNA Evidence Here Was Not Reliable

1. The Procedures Used Here Were Not Reliable

2. The DNA Evidence Here Was Inadmissible Because The MSP Protocols Have Never Been Validated By Independent Scientists And So Have Not Been Generally Accepted In The Relevant Scientific Community

3. The Statistical Evidence Was Also Unreliable and Inadmissible Here

II. The tRial Court did not commit aot procedural errors in granting Defendant A NEW TRIAL

1. The Court Did Not Deny The Prosecutor The Right To Proper Notice and Service

2. The Court Did Not Erroneously Cut Off The Prosecutor’s Argument

3. The Court Provided Sufficient Findings of Fact

4. An Evidentiary Hearing Was Unnecessary

5. Dr. Grunbaum’s Affidavit Was Perfectly Proper and Relevant

III. Defense counsel was ineffective AND DENIED DEFENDANT A FAIR TRIAL

IV. Defendant is entitled to a new trial because his purported waiver of JURY TRIAL WAS INVALID WHERE THE COURT FAILED TO ESTABLISH THAT THE WAIVER WAS VOLUNTARY AND INTELLIGENT

V. The PROSECUTOR HAS PRESENTED NO REASON TO DISQUALIFY THE TRIAL COURT

Despite the conclusion by three justices that Petitioner’s claims deserved to be heard, the Michigan Supreme Court denied Petitioner leave to appeal, People v. Leonard, 459 Mich. 894, 587 N.W.2d 285 (1998), a decision which it reaffirmed on reconsideration. People v. Leonard, 459 Mich. 894, 590 N.W.2d 64 (1999).

Almost one year later, Leonard filed the present petition for writ of habeas corpus, in which he asserts the following claims:

I. The trial court properly found that Defendant was denied a fair trial in THAT HE DID NOT HAVE A DNA EXPERT

II. The trial court erroneously denied Defendant a continuanoe to obtain A NECESSARY EXPERT

III. Defendant was denied effective ASSISTANCE OF COUNSEL

IV. Defendant was entitled to a new TRIAL BECAUSE HIS PURPORTED WAIVER OF JURY TRIAL WAS INVALID

V. The DNA EVIDENCE was not reliable

VI. Defendant was denied right to appeal

STANDARD OF REVIEW

Leonard’s petition, filed January 25, 2000, is subject to the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), as it amended 28 U.S.C. § 2254. The AEDPA amended the substantive standards for granting habeas relief under the following provisions:

(d) 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).

Pursuant to § 2254(d)(1), a decision is “contrary to” clearly established federal law when “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000); see also, Machacek v. Hofbauer, 213 F.3d 947, 952-53 (6th Cir.2000).

Prior to Williams, the Sixth Circuit interpreted the “unreasonable application” clause of § 2254(d)(1) as precluding habeas relief unless the state court’s decision was “so clearly incorrect that it would not be debatable among reasonable jurists.” Gordon v. Kelley, 205 F.3d 1340, 2000 WL 145144 at *4 (6th Cir.2000); see also, Blanton v. Elo, 186 F.3d 712, 714-15 (6th Cir.1999). The Williams Court rejected this standard, indicating that it improperly transformed the “unreasonable application” examination into a subjective inquiry turning on whether “at least one of the Nation’s jurists has applied the relevant federal law in the same manner” as did the state court. Williams, 120 S.Ct. at 1521-22.

In articulating the proper standard, the Court held that a writ may not issue simply because the reviewing court “concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams, 120 S.Ct. at 1522. Rather, the Court must also find the state court’s application thereof to be objectively unreasonable. Williams, 120 S.Ct. at 1521-23; see also, Machacek, 213 F.3d at 953 (emphasis added).

Furthermore, for a writ to issue, the Court must find a violation of Supreme Court authority. The Court cannot look to lower federal court decisions in determining whether the relevant state court decision was contrary to, or involved an unreasonable application of, clearly established Federal law. See Harris v. Stovall, 212 F.3d 940, 943-44 (6th Cir.2000) (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)).

Pursuant to 28 U.S.C. § 2254(d)(2), when reviewing whether the decision of the state court was based on an unreasonable determination of the facts in light of the evidence presented, the factual findings of the state court are presumed to be correct. See Warren v. Smith, 161 F.3d 358, 360 (6th Cir.1998) (citing 28 U.S.C. § 2254(e)(1)). Petitioner can rebut this presumption only by clear and convincing evidence. Id.

FACTUAL BACKGROUND

In the early morning hours of August 30, 1986, two men unlawfully entered the apartment in which Shirley Martin lived with her boyfriend, William Osborn, and her daughter. (Trial Transcript, May 11, 1994, Dkt. # 18, 33-37; Trial Transcript, May 11, 1994, Dkt. # 17, 3-12). The two men entered the bedroom where the three individuals were sleeping, awakening them. (Trial Transcript, May 11, 1994, Dkt. # 18, 34-37; Trial Transcript, May 11, 1994, Dkt. # 17, 10-12). The two men took Osborn out of the room, after which Martin “got up, shut the door, locked it, [and] tried to get out of the bedroom window for help.” (Trial Transcript, May 11, 1994, Dkt. # 18, 37-38; Trial Transcript, May 11,1994, Dkt. # 17,11-14).

Before Martin could escape, however, one of the two intruders kicked in the bedroom door, “grabbed” Martin and raped her. (Trial Transcript, May 11, 1994, Dkt. # 18, 38-40; Trial Transcript, May 11, 1994, Dkt. # 17, 15). Because the room was dark, Martin was unable to see this man’s face. (Trial Transcript, May 11, 1994, Dkt. # 18, 39, 47). Martin was then taken into the bathroom where the other intruder raped her. (Trial Transcript, May 11, 1994, Dkt. # 18, 40-42). Martin was likewise unable to see this man’s face. (Trial Transcript, May 11, 1994, Dkt. # 18, 41, 47).

After the incident ended and the intruders departed, the police were summoned, after which Martin was transported to a hospital to undergo a sexual assault evaluation. (Trial Transcript, May 11, 1994, Dkt. # 18, 42-45; Trial Transcript, May 11,1994, Dkt. # 17, 3-12; Trial Transcript, May 12, 1994, 7-8). An investigation of Martin’s apartment revealed the presence of “several” latent fingerprints. (Trial Transcript, May 12, 1994, 57-58). Police were unable to locate any suspects and the matter was placed into “inactive status” the following spring. Id. at 9-14.

In February 1991, however, police were able to identify all but one of the recovered fingerprints as belonging to Eric Schip-pers. Id. at 14-16, 35-36, 58-67. The individual to whom the remaining fingerprint belonged was never identified. Id. at 36-39. Subsequent examination revealed that it did not belong to Petitioner. Id. at 36-37. Schippers was eventually located and interviewed by Officer David Caswell of the Kalamazoo Township Police Department in August 1991. Id. at 17. Schip-pers denied knowledge of the matter, but Caswell continued his investigation. Id. After eliminating “any reason for [Schip-pers] to have legitimately been in [Martin’s apartment] at the time [of the assault],” Caswell obtained an arrest warrant for Schippers, who was arrested in August 1992. Id. at 17-18. When he was subsequently questioned about his involvement in the matter, Schippers declined to cooperate and instead requested an attorney. Id. at 20-21.

A search warrant was obtained to draw blood from Schippers for purposes of comparison with the evidence obtained from the sexual assault evaluation of Martin. Id. at 19. As a result of this comparison, police officials concluded that Schippers had engaged in intercourse with Martin on August 30,1986. Id. Schippers was subsequently charged with (1) first degree criminal sexual conduct, (2) two counts of armed robbery, and (3) breaking and entering. (Preliminary Examination Transcript, August 18, 1992, 78-79). Schippers was informed by his attorney that he faced life imprisonment if convicted on all four charges. Id. at 92.

With respect to his desire to locate Schippers’ accomplice, Caswell indicated that:

This is one of the most violent crimes I’ve ever investigated and I wanted to do whatever I had to do to locate this second suspect and I then made arrangements with the prosecutor’s office to negotiate some kind of understanding with Mr. Schippers to help us identify and charge his partner in this offense.

(Trial Transcript, May 12,1994,18).

A plea agreement was subsequently negotiated with Schippers pursuant to which Schippers agreed to plead guilty to the charges of first degree criminal sexual conduct and one count of armed robbery, as well as identify and testify against his accomplice. (Preliminary Examination Transcript, August 18, 1992, 78-79; Trial Transcript, May 12, 1994, 19-20). In return, the prosecution agreed to drop the remaining two charges and recommend that Schippers receive a sentence of only 12-30 years. (Preliminary Examination Transcript, August 18, 1992, 79-80; Trial Transcript, May 12,1994,19-20).

After negotiating his plea agreement, Schippers agreed to cooperate and identified Petitioner as his accomplice in the assault of Shirley Martin. (Trial Transcript, May 11, 1994, 75; Trial Transcript, May 12, 1994, 21-23). When asked by Officer Caswell whether there existed in his mind any question that it was Petitioner who assisted him in perpetrating the assault on Shirley Martin, Schippers replied, “yeah, that’s the only person I can think of, and I’m pretty sure that that was the person who was with me.” (Preliminary Examination Transcript, August 18, 1992, 95; Trial Transcript, May 11, 1994, Dkt. # 17, 92-93; Trial Transcript, May 12,1994, 46).

As Schippers also indicated, prior to assaulting Martin in the early morning hours of August 30, 1986, he had “been drinking and smoking drugs and partying all night.” (Preliminary Examination, August 18, 1992, 67; Trial Transcript, May 11, 1994, 59). Specifically, Schippers testified that he had drank “a little over a fifth” of rum and vodka, smoked “three or four joints,” and snorted “one or two” lines of cocaine. (Preliminary Examination, August 18, 1992, 87; Trial Transcript, May 11, 1994, 79-81). He further reported having experienced blackouts and memory losses as a result of his drug and alcohol use. (Preliminary Examination, August 18, 1992, 98).

Schippers noted that he knew Martin previously and also knew where she lived, having in the past purchased drugs from her at her residence. (Preliminary Examination, August 18, 1992, 88-89, 102-03; Trial Transcript, May 11, 1994, 81-83). Schippers reported that it was his idea to go to Martin’s apartment on the morning of August 30, 1986, and that he went there to “find drugs because [he] had purchased drugs before from Shirley Martin.” (Trial Transcript, May 11,1994, 83-84).

Petitioner was ultimately charged with the following: (1) first degree criminal sexual conduct, (2) two counts of armed robbery, and (3) breaking and entering. (Trial Transcript, May 11, 1994, 17-19). Following a bench trial before the Honorable John F. Foley, Petitioner was convicted on all four counts. (Trial Transcript, May 19, 1994, 3-8). Petitioner was sentenced to a term of 18-40 years imprisonment on the charge of first degree sexual assault, a term of 10-30 years imprisonment on each of the armed robbery charges, and a term of 4-15 years imprisonment on the charge of breaking and entering. (Sentencing Transcript, June 27,1994, 20).

ANALYSIS

I. The Decision by the Trial Court to Grant Petitioner a New Trial

Petitioner asserts that the trial court acted properly in ordering that he be granted a new trial. To the extent that this claim implicates state law, such is beyond the power of this Court to review. See 28 U.S.C. § 2254(a) (the federal courts can only consider habeas claims alleging violations of the Constitution, laws, or treaties of the United States). To the extent that this claim raises issues properly cognizable in this Court, these are addressed individually below.

II. Denial of the Effective Assistance of Counsel

Petitioner asserts that he was deprived of the right to the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. Petitioner was represented by two attorneys, at separate times, prior to and during trial. After he was charged, Petitioner retained the services of Richard Stroba. Because Petitioner was unable to afford his services, however, Stroba withdrew his representation on September 14, 1993. (Motion Transcript, September 14, 1993, 3 — 4). After permitting Stroba to withdraw, the trial court appointed James Nar-regan to represent Petitioner. (Motion Transcript, September 14, 1993, 5-7; Trial Transcript, May 11, 1994, Dkt. # 18, 13-14). Petitioner’s claim of ineffective assistance implicates the actions and inactions of Narregan only.

The Sixth Amendment to the United States Constitution provides for the right of the assistance of counsel. U.S. Const, amend. VI. The United States Supreme Court has long recognized, however, that it is the right to the effective assistance of counsel that is necessary to protect the fundamental right to a fair trial as secured by the Due Process Clause of the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As the Supreme Court has indicated, the right to the effective assistance of counsel is “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Where there has not occurred “a true adversarial criminal trial,” the “constitutional guarantee is violated.” Id. at 656-57, 104 S.Ct. 2039.

The Strickland Court established the applicable standard for determining when an attorney’s performance is constitutionally ineffective. First, counsel’s performance must be shown to be so deficient that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. 2052. It must be established that the attorney’s actions were unreasonable under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. A claim of ineffective assistance of counsel is “an attack on the fundamental fairness of the proceedings whose result is challenged.” Lewis v. Alexander, 11 F.3d 1349, 1354 (6th Cir.1993). The reviewing court must, therefore, “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

With respect to the second prong of the Strickland standard, counsel’s performance must have been so deficient as to deny Petitioner of the right to a fair trial. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Kinnard v. United States, 313 F.3d 933, 935 (6th Cir.2002). Petitioner must, in other words, demonstrate that he suffered prejudice as a result of his attorney’s deficient performance. To establish the existence of such prejudice, Petitioner must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 359, 154 L.Ed.2d 279 (2002) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

This standard does not, however, require Petitioner to show that it is “more likely than not” that the outcome would have been different. See Woodford, 123 S.Ct. at 359 (noting that the Strickland Court “specifically rejected the proposition that the defendant had to prove it more likely than not that the outcome would have been altered”) (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052). Instead, Petitioner need only demonstrate that counsel’s performance was so deficient and prejudicial as to undermine confidence in the proceeding’s outcome. See Woodford, 123 S.Ct. at 359 (“a reasonable probability is a probability sufficient to undermine confidence in the outcome”) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

A. Failure to Investigate Alibi Defense

Petitioner first asserts that counsel was ineffective in that he failed to “contact and call alibi witnesses.” With respect to this claim, it is important to note that the question is not whether Petitioner can establish the existence (or the possible existence) of an alibi. To call into question his attorney’s performance, Petitioner must instead demonstrate that his attorney knew (or should have known) of the existence or possible existence of an alibi defense and nonetheless failed to investigate or pursue such a defense. Petitioner testified at trial regarding this issue. The relevant exchange is as follows:

Mr. Narregan: Now, so we can get this out of the way, you and I discussed this matter with regard to your exact whereabouts on August 30th of 1986. Is that correct?

Petitioner: Could you repeat that?

Mr. Narregan: You and I talked about this beforehand with regard to your exact whereabouts on August 30th, 1986. Is that correct?

Petitioner: Yes.

Mr. Narregan: And in spite of conferences with yourself, your mom, your wife, et cetera, were you able to pinpoint exactly where you were on that date so that I could give appropriate notice?

Petitioner: No, sir.

Mr. Narregan: All right. Is that because it’s eight years ago?

Petitioner: Yes, sir, eight years is a long time.

Mr. Narregan: But I would ask you, sir, you’ve heard the testimony and the allegations against you with regard to your participation here and, depending on whether you believe the victim, the victims in this case, you were the Black man standing behind him or, if you believe Eric Schippers in this ease, you were the person that aided and abetted the person standing behind Mr. Osborn. Did you participate in this incident on August 30, 1986?

Petitioner: No, sir.

(Trial Transcript, May 18,1994, 6-7).

Petitioner’s testimony suggests that counsel discussed with him the matter of his “whereabouts” on the night in question and, furthermore, that Petitioner was unable to recall where he was on that particular night. Nonetheless, at sentencing, Petitioner asserted that he provided Mr. Stroba and Mr. Narregan with “a list of names,” indicating that “these names were people who could have testified that I was not in Michigan at the time these crimes were committed.” (Sentencing Transcript, June 27, 1994, 13-14). Petitioner further asserted that “[t]his information was never used and it was never even checked out.” Id. at 14. When questioned by the trial judge regarding this matter, Petitioner stated that Mr. Narregan instructed him “not to mention that [he was] out of state,” as “it may not be of any help.” Id. at 18.

In support of his claim, Petitioner notes the precise wording of the question posed by Mr. Narregan. As indicated above, counsel did not ask Petitioner where he was on August 30, 1986, but rather asked him whether he was able “to pinpoint exactly where [he was] on that date” so that counsel “could give appropriate notice.” Petitioner asserts that this question “reflects a disturbing effort on behalf of defense counsel to insulate himself from criticism for not contacting alibi witnesses.” (Dkt. # 41 at 3). While I also find suspect the precise wording of counsel’s question, a closer examination of Petitioner’s position reveals its logical inconsistency.

Petitioner asserts that Mr. Narregan met with him only twice prior to trial— “once immediately after being appointed and then immediately before trial.” (Dkt. # 41 at 4). As Petitioner further asserts

Instead of asking petitioner at trial whether he was in another state or with another person in August of 1986, trial counsel posed the question whether Petitioner gave the alibi names to counsel during the one pretrial conference with trial counsel. Because petitioner did not give the names to trial counsel at that time, he answered truthfully that he did not provide the alibi “so that I could give appropriate notice.” The question itself implies that, consistent with petitioner’s claims, he did give his trial counsel the basis for an alibi defense, albeit according to defense counsel too late.

(Dkt. # 41 at 4-5).

In other words, Petitioner asserts that until meeting with Mr. Narregan “immediately before trial,” counsel was not informed of the existence of an alibi defense and, furthermore, that it was only counsel’s ineffective representation that prevented him from learning of the existence of an alibi defense in time to properly notify the court and the prosecution.

Petitioner’s argument is contradicted, however, by his statement at sentencing that he provided Mr. Stroba with a list of alibi witnesses, (Sentencing Transcript, June 27, 1994, 13-14), as well as his assertion that he “sent” Mr. Narregan a list identifying his alibi witnesses. (Dkt. # 41 at 4). Petitioner’s trial testimony that he was unable to timely (i.e., in time to provide proper notice of an alibi defense) recall where he was on August 30, 1986, is, therefore, not entirely accurate.

The Michigan Court of Appeals denied Petitioner’s claim of ineffective assistance, specifically concluding that Petitioner’s “belated claim of an alibi” was “incredible” and that, therefore, counsel’s performance in this regard was not deficient. Leonard, 224 Mich.App. 569 at 592, 569 N.W.2d 663. I also find it difficult to contemplate that Petitioner would testify as he did, if he had been able to recall that he was not in Michigan at all on August 30,1986.

I reluctantly conclude, therefore, that the decision by the Michigan Court of Ap-' peals on this particular issue, while perhaps not salutary in light of Petitioner’s counsel’s abysmal performance, is neither contrary to nor involves an unreasonable application of Supreme Court authority. Accordingly, this claim raises no issue upon which habeas relief may be granted.

B. Failure to Challenge the State’s DNA Evidence

Petitioner also asserts that he received ineffective assistance in that counsel failed to obtain a DNA expert. I agree, but would further note that counsel’s ineffective assistance in this regard is the result of more than this single omission. To the contrary, counsel’s ineffective assistance is extensive and is evidenced by repeated unprofessional errors as detailed below. Counsel’s ineffective representation is perhaps best characterized by my conclusion that he completely failed to subject the State’s DNA evidence to any “meaningful adversarial testing.”

Before analyzing counsel’s performance, a general discussion of DNA, as well as the extraction procedure and analysis methods utilized in this matter is necessary. In this respect, I recognize that counsel’s performance must be evaluated in terms of the circumstances he faced at the time of trial, rather than judged with the benefit of hindsight. This is especially important when evaluating counsel’s actions or inac-tions with respect to matters regarding rapidly evolving scientific methods such as DNA. Accordingly, in the context of discussing and analyzing counsel’s performance I have “confined my scientific knowledge” to material contemporaneous with the various proceedings in this matter.

1. DNA and RFLP Analysis

DNA is the material that determines the genetic characteristics of all living things. Except for identical twins, no two individuals have identical DNA and, furthermore, DNA does not vary within a particular individual. In human beings, every cell containing a nucleus also contains DNA, distributed across 46 sections of the cell’s nucleus. These sections are known as chromosomes and are arranged in 23 pairs. Each chromosome contains thousands of genes.

Each DNA molecule is shaped liked a twisted ladder. The sides of the ladder are composed of phosphate and sugar molecules. The rungs of the ladder are composed of pairs of bonded molecules. Specifically, four separate chemical bases— Adenine (A), Cytosine (C), Guanine (G), and Thymine (T) — lie next to each other along the sides of the ladder. Each A always bonds with a T on the other side of the ladder. Each C always bonds with a G on the other side of the ladder. Therefore, the only possible base pairs on the ladder are A-T, T-A, C-G, and G-C. Each of these base pairs forms one rung of the ladder.

There exist approximately three billion base pairs in each DNA molecule. While no two humans share the exact same sequence of base pairs (identical twins excepted), all humans share many identical sequences of base pairs. It is estimated that approximately 99 percent of the base pairs which comprise each DNA molecule are identical from one person to the next. These identical sequences create those features which are uniquely human.

On the other hand, certain sections of each DNA molecule differ from individual to individual, race to race, and ethnic group to ethnic group. These areas of variation are called polymorphic sites. At some polymorphic sites short sequences of base pairs repeat in tandem, over and over again. These repeating sequences are known as alleles. Because the number of times the core sequence of base pairs repeats may vary among individuals, the length of a given allele, measured in numbers of base pairs, may also vary.

The goal of forensic DNA identification is to isolate and analyze certain alleles. Each DNA molecule contains approximately three million alleles. While all of these alleles are polymorphic, some are much more polymorphic than others. Because it is impractical to examine all the polymorphic regions of the DNA molecule, DNA profiling attempts to isolate and analyze several highly polymorphic segments of DNA.

The type of DNA analysis that was performed in this matter is known as Restriction Fragment Length Polymorphisms (RFLP). While the specific protocols and procedures utilized by various laboratories differs, in general the RFLP process consists of seven separate steps: (1) DNA extraction, (2) restriction, (8) gel electrophoresis, (4) Southern transfer and denaturing, (5) hybridization, (6) autoradiogra-phy, and (7) interpretation.

a.DNA Extraction

The biological material containing the DNA must first be separated from the material in which it is located. The biological material is then treated with organic solvents which release the DNA. The re-suiting DNA is then purified with various enzymes.

b. Restriction

The DNA is then mixed with restriction enzymes which chemically “cut” the DNA molecule at specifically targeted base pair sites. This process produces restriction fragment length polymorphisms (RFLPs). These RFLPs (or DNA fragments) can very in length from a few base pairs to several thousand.

Degraded DNA samples can complicate this procedure. If a DNA fragment is contaminated, this may cause the restriction enzymes to cut the DNA in the wrong places, causing fragments to be different lengths than would ordinarily be the case.

c. Gel Electrophoresis

In this step the DNA fragments are sorted by length using a gel into which lanes are created. Cut DNA fragments from the victim, the suspect, and crime scene are loaded into separate lanes of the gel. In addition to the sample fragments, other DNA fragments of known length are loaded in separate lanes to facilitate measurement of the sample DNA fragments.

The gel is then electrically charged, causing the negatively charged DNA to migrate toward the positive end of the gel. The smaller DNA fragments will travel further towards the positive end of the gel than the larger fragments, resulting in an array of DNA fragments sorted according to size.

d. Southern Transfer and Denaturing

After separating the DNA fragments by size, the dual strands of the DNA double helix are denatured with an alkali solution which separates the strands of the DNA helix like “opening a zipper or splitting the rungs of a ladder.” Because the gel is difficult to work with, the single DNA strands are transferred from the gel to a nylon membrane. This causes the RFLPs to become permanently fixed in their respective positions on the membrane. This is often referred to as a “blot.”

e. Hybridization

This is the technique by which the highly polymorphic alleles contained within the fragments, those most useful in forensic DNA typing, are located. This is accomplished by dipping the nylon membrane in a solution of various “genetic probes”— single-stranded DNA fragments of known length and sequence. These probes will bond with only those RFLPs which contain the same core sequence. These genetic probes are “tagged” with a radioactive marker used to determine the probe’s position on the blot after it hybridizes with a polymorphic segment. The residual probes that did not locate complimentary DNA are then washed off the nylon membrane.

f. Autoradiography

This is the process by which the position of the probes, and their complimentary and now linked polymorphic fragments, is recorded. This is accomplished by placing the nylon membrane on an x-ray film which is then exposed by the energy of the radioactively tagged probes. This process results in a pattern of bands called an autoradiograph or an autorad. Each band represents a different polymorphic allele and its position indicates the length of the fragment in which that allele occurs. Because the length of alleles may differ among individuals, the position of the bands on the autorad will tend to differ from person to person.

g. Interpretation

In this step the location of the alleles on the autorad are examined to determine whether or not two separate DNA samples (e.g., a known sample taken from the defendant and a sample recovered from the crime scene) originate from the same person. This comparison can be accomplished through either a visual inspection or with a machine that measures the bands through a process of computer imaging, or both. A match will be declared if the bands fall within a certain distance of each other.

Once a match is declared, its statistical significance must be determined. This requires knowledge of the frequency with which each individual allele occurs in a particular population. One method by which this is accomplished is referred to as “fixed bin analysis.” A bin is an arbitrarily defined range of base pairs. Any allele with a base-pair length within that range is classified as belonging to that bin. Target populations are then sampled to establish a data base of allele frequencies.

Interpretation of autorads is not perfect, however, Problems surrounding the interpretation of autorads include the acceptable measure of deviation in band match that should be allowed before declaring a match, the level of subjective evaluation that inheres in this interpretation, and the level of skill and expertise of the analyst who performs the interpretation.

2. Counsel’s Deficiencies

To properly assess and analyze counsel’s various deficiencies, a brief chronology of the relevant facts is in order. These facts will then be explored in more detail as appropriate to illustrate my analysis and support my conclusions.

a. Background

Petitioner was initially represented in this matter by Richard Stroba, whom Petitioner retained privately. In January 1993, Stroba retained the services of DNA expert, Benjamin Grunbaum, Ph.D. (Grun-baum Affidavit at 3). Dr. Grunbaum earned a Ph.D. in biochemistry from the University of California, as well as a master’s degree in criminalistics. Id. at 2. He has been employed since approximately 1979 as a consultant in analytical biochemistry, having worked for both prosecuting attorneys and defense attorneys. Dr. Grunbaum has also testified as an expert regarding such matters. Id.

Stroba sought Dr. Grunbaum’s assistance in (a) evaluating the DNA evidence, and (b) preparing for a suppression hearing and trial. Id. at 8. In January 1993, Stroba provided Dr. Grunbaum with materials he had received from the Michigan State Police (MSP) crime laboratory. In May 1993, Stroba provided to Dr. Grun-baum additional discovery material. Dr. Grunbaum informed Stroba, however, that “discovery was incomplete,” as “[t]he defense did not have several documents that it had requested” and “had not received all of the autoradiographs generated in this case.” I infer that Petitioner (and thus Dr. Grunbaum) had been provided by the prosecution with only those autorads that supported the State’s theory.

Mr. Stroba subsequently withdrew his representation because Petitioner was unable to afford his services. (Hearing Transcript, March 8, 1994, 172-73). Before withdrawing, however, Stroba moved in the trial court to suppress the State’s DNA evidence and a suppression hearing was scheduled for March 8, 1994. (Hearing Transcript, March 8, 1994, 175). James Narregan was appointed to represent Petitioner in September 1993. (Motion Transcript, September 14, 1993, 3-7; Trial Transcript, May 11, 1994, Dkt. # 18, 13-14).

Even though he was aware that Stroba had moved to suppress the DNA evidence and that Dr. Grunbaum had already been consulted regarding this matter, Narregan did not contact Dr. Grunbaum until March 4, 1994, four days before the suppression hearing. Moreover, Narregan had neither contacted nor consulted with any other expert since being appointed to represent Petitioner six months earlier.

During his conversation with Narregan, Dr. Grunbaum realized that Narregan was “unfamiliar with” the issues which would be addressed during the suppression hearing. (Grunbaum Affidavit at 3). Furthermore, Narregan was “unfamiliar with the problems [Dr. Grunbaum] had identified with the DNA testing and communicated to Mr. Stroba.” Dr. Grunbaum was unable to attend the suppression hearing, but he “urged Mr. Narregan to request a continuance so that he could prepare himself for effective cross examination of the prosecution experts.” Id. In this respect, Dr. Grunbaum offered his services to Narre-gan, an offer which Narregan declined. Id. at 3, 11. Furthermore, Narregan did not ask Dr. Grunbaum to return the discovery materials he had previously been provided, nor did he ask Dr. Grunbaum if he was able to provide him with the names of any other experts with whom he may be able to consult. Id. at 3-4,11.

At the March 8, 1994, DNA suppression hearing, the State offered testimony from three individuals regarding the DNA method and procedures utilized in this matter. Narregan presented neither witnesses nor exhibits at the hearing. Furthermore, while Narregan cross-examined the three witnesses who testified at the suppression hearing, as discussed in more detail below, his attempts to do so were ineffective and demonstrated his alarming lack of preparation and substantive knowledge. Narregan’s failures in this regard were most pronounced with respect to the technician who actually performed the DNA extraction and analysis in this matter.

At the conclusion of the suppression hearing, Narregan moved the Court to authorize funds to pay for Dr. Grunbaum’s services. (Hearing Transcript, March 8, 1994, 173-74). Because Stroba and Dr. Grunbaum had been privately retained, this appears to be the first instance in which this matter was brought to the court’s attention. Id. at 173-75. As the Michigan Court of Appeals noted, Narre-gan never even filed “a formal motion for an expert.” Leonard, 224 Mich.App. 569 at 586, 569 N.W.2d 663. The trial court authorized Petitioner to retain the services of a DNA expert, provided any such expert not charge more than $125 per hour, the “top rate” authorized by the relevant court rules. (Hearing Transcript, March 8, 1994, 175). In this respect, the trial judge related a conversation that he had with Dr. Grunbaum regarding his services. As the judge observed, Dr. Grunbaum charged $150 per hour for his services, an amount beyond which he could authorize. The trial judge nonetheless implored Narregan to “use [his] best efforts to obtain an expert.” Id.

The suppression motion was continued to May 11, 1994. (Trial Transcript, May 11, 1994, Dkt. # 18, 3). The trial judge, however, made clear to Narregan that because the suppression motion had originally been filed 15 months previously, and the suppression hearing adjourned “many times, at the request of defense counsel,” this matter “really must proceed.” (Hearing Transcript, March 8, 1994, 175-76) (emphasis supplied).

Narregan never asked Dr. Grunbaum whether it was possible to restructure his fees so that his services could be retained consistent with the court’s order. More significantly, Narregan never requested that the court reconsider its decision regarding the amount of money it would authorize to employ a DNA expert. Nar-regan’s failure in this regard is not merely academic. As the trial judge later indicated, “[w]e have a written policy about the amount that is allowed for experts at $125 per hour, but we can use discretion in particular cases to exceed that, and I was prepared to do that here.” (Trial Transcript, May 11, 1994, Dkt. # 18, 10). While the trial judge later informed Nar-regan that he was prepared to grant to him the authority to employ an expert at the rate of $150 per hour, the judge also indicated that he was concerned about the number of hours that Dr. Grunbaum would apparently bill for his services. Id. The judge’s concerns were premised upon an apparent misunderstanding regarding the manner in which Dr. Grunbaum charged for his services. (Trial Transcript, May 11, 1994, Dkt. # 18, 10; Affidavit of Dr. Benjamin Grunbaum at 3). With any diligence, Narregan could have easily clarified the judge’s misunderstanding, but failed to either speak with Dr. Grunbaum or pursue the matter further in the trial court.

On May 11, 1994, the trial court again took up the matter of Petitioner’s motion to suppress the DNA evidence. (Trial Transcript, May 11, 1994, Dkt. # 18, 3-4). At the outset, Narregan indicated that he still had not retained, nor even consulted with a DNA expert. Id. at 4-6. With respect to the efforts he had undertaken to secure the necessary services of a DNA expert, Narregan stated that the only action he had taken in the previous two months was to ask the prosecuting attorney for the names of experts who “might be useful.” Id. at 5. The prosecuting attorney provided Narregan with the names of two individuals. To Narregan’s surprise, however, these individuals were unable to assist him, because “they primarily were prosecution witnesses.” Id. Narre-gan also indicated that it was not until he communicated with these individuals that he realized that “there are two types of testimonial experts ... [o]ne testifying for DNA, forensic DNA analysts and, second, those challenging the admissibility thereof.” Id. at 5-6.

Narregan then asked the court to grant the motion to suppress based simply upon his “cross-examination of the witnesses that testified at the hearing.” Id. Furthermore, even though he realized that the issues presented by the suppression motion (i.e., admissibility of the DNA evidence) were distinct in certain respects from the issues relevant at trial (i.e., credibility of the evidence and the weight that it should be accorded), Narregan nonetheless indicated to the court that, assuming his motion to suppress was denied, he would “stipulate for purposes of trial that the testimony heretofore given [by the three experts testifying at the March 8, 1994 proceeding] ... may be utilized in the case in chief in lieu of the prosecution bringing their four experts back to testify again.” Id. at 6-7.

Finally, Narregan sought an adjournment to enable him to “gather evidence for the motion to suppress.” Id. at 9-10. Not surprisingly, the trial judge denied Narre-gan’s request to adjourn the proceedings, noting that the matter had been adjourned on several previous occasions at the request of both Stroba and Narregan. Id. at 11-14. The judge also denied Narregan’s motion to suppress the DNA evidence, noting that such was admissible so long as “generally accepted laboratory procedures were followed.” Id. at 14-17. Petitioner’s trial immediately commenced. Id. at 17.

As indicated above, Narregan expressly declined to cross-examine at trial the three witnesses that testified at the suppression hearing. Narregan made this decision even though his efforts to that point to develop and present evidence challenging the admissibility or credibility of the State’s DNA evidence were unprofessional, unsuccessful, and completely inadequate. This conclusion is evidenced by counsel’s request for an adjournment to “gather evidence.” More importantly, it is evidenced by the inadequacy of Narregan’s cross-examination of the State’s DNA experts at the suppression hearing, as detailed below. Moreover, while the State questioned at trial one additional DNA expert, as also detailed below Narregan’s attempt to cross-examine him was totally ineffectual.

b. Testimony and Cross-Examination of Dr. Julie Howenstine

At the March 8, 1994, DNA suppression hearing, the State offered testimony from three individuals regarding the DNA method and procedures utilized in this matter. First to testify was Dr. Julie Howenstine. (Hearing Transcript, March 8, 1994, 5). Her testimony was especially important, as she was the technician who actually performed the DNA extraction and analysis. Id. at 69.

Howenstine testified that she was originally trained as a veterinarian and presently worked for the Michigan State Police as a DNA analyst. Id. at 5-6. With respect to her training in the area of DNA analysis, Howenstine indicated that she had attended a “one month training period” with the Federal Bureau of Investigation and had also attended “numerous” seminars and workshops. Id. at 6-7.

As could be expected, Howenstine testified regarding the protocol and procedures which she utilized in extracting and analyzing the DNA in this matter. Id. at 10-11. She stated that the laboratory’s protocol is contained in a written document, at which point Narregan interrupted because he did not have a copy of this material and requested that he be provided with a copy of it “at the end of this — at the end of this motion.” Id. at 11.

As Dr. Grunbaum testified in his affidavit, he had reviewed the laboratory’s protocol. Thus, Narregan could have obtained this information long before the suppression hearing. Given the importance of the laboratory’s protocols and procedures in determining the admissibility of the DNA evidence, as well as the weight which should have been given to this evidence, Narregan’s failure to review this material before the suppression hearing is inexcusable and incompetent.

While Narregan requested (during the hearing) that he be provided with a copy of the relevant protocols, he specifically stated that he did not need this material until after the suppression hearing was completed. Thus, while Narregan could have perhaps lessened the impact of his failure to prepare beforehand by at least having the protocols at his disposal during the hearing, he failed in this regard by stating that he did not need a copy of the protocols until after the suppression hearing was completed. In other words, Narregan observed Dr. Howenstine’s direct examination and, furthermore, conducted a cross-examination of her without having reviewed the protocols and procedures which she utilized in this matter and about which she testified in detail. This failure is inexcusable and as discussed below was not insignificant.

In any event, the trial judge denied Petitioner’s motion to suppress the DNA evidence. The judge expressly relied on People v. Adams, 195 Mich.App. 267, 489 N.W.2d 192 (1992), which as the judge noted was, at that time, the controlling case on the matter. (Trial Transcript, May 11, 1994, 14-17). The significance of the Adams decision was also well known to both Narregan and the prosecuting attorney, as evidenced by their comments. Id. at 7-8. A brief discussion of the Adams decision is relevant to understanding some of Narregan’s subsequent shortcomings.

The DNA testing at issue in Adams was performed by Cellmark Diagnostics, who extracted and analyzed the DNA pursuant to the general RFLP method described above. Adams, 489 N.W.2d at 194-95. With respect to the DNA’s admissibility, the trial court in Adams held a hearing at which evidence was presented regarding the protocols and procedures utilized by Cellmark. Id. at 194-96. In affirming the trial court’s decision to permit the introduction of the DNA evidence, the court of appeals concluded that:

Given the overall acceptance of the technique in other jurisdictions, we hold that trial courts may take judicial notice of the reliability of DNA identification testing. Nonetheless, before a trial court admits the test results into evidence, the prosecutor must establish in each particular case that generally accepted laboratory procedures were followed.

Id. at 197. In this respect, the court of appeals determined that the protocols and procedures employed by Cellmark satisfied the admissibility standard. Id.

Dr. Howenstine testified that the protocols and procedures that she employed were identical to those used by Cellmark and approved by the Michigan Court of Appeals in Adams, clearly implying that, therefore, the results of her extraction and analysis were admissible under then controlling Michigan law. (Hearing Transcript, March 8, 1994, 22). This assertion, however, was not accurate. This fact was not brought to light by Narregan, however. Because he had never reviewed the protocols used by Dr. Howenstine, he was simply unprepared to assess or challenge her testimony. Instead, it was not until after Narregan completed his cross-examination that Dr. Howenstine’s misstatement came to light during a discussion between the judge and Dr. Howenstine.

The judge specifically asked Dr. Howen-stine “do you use the same protocol as Cellmark?” (Hearing Transcript, March 8, 1994, 112). The doctor replied that the protocols that she employed were “similar” to those utilized by Cellmark and, furthermore, that the differences between the two protocols was insignificant. Id. Narregan did not follow up this exchange with any questions of his own.

As Dr. Grunbaum indicates in his affidavit, Narregan “did not cross examine Dr. Howenstine on the basis and extent of her familiarity with the Cellmark protocol or her qualifications to evaluate it in comparison with the MSP protocol.” (Grunbaum Affidavit at 5). This failure is significant considering Dr. Howenstine’s testimony indicating that she was not qualified to formulate or evaluate the protocols and procedures that she utilized to extract and analyze DNA. (Hearing Transcript, March 8,1994, 71). As Dr. Howenstine described it, the protocol is “like a cookie recipe” and her expertise extends only to performing the “step-by-step” procedures called for by the recipe, but does not extend to actually devising or analyzing the “cookie recipe” or protocol. Id. at 10-12.

As Dr. Grunbaum further asserts, “[e]ompetent cross examination [of Dr. Howenstine] by the defense would have established that Cellmark indeed uses different restriction enzymes and different probes, different population data, and different matching criteria.” (Grunbaum Affidavit at 5). It is certainly conceivable (and perhaps even likely) that certain distinctions between protocols may have no impact upon the “quality” of the autorads produced during DNA extraction and, therefore, not detract from the DNA’s admissibility or lessen the weight which it should be given. Two points, however, must be remembered.

First, as evidenced by her own testimony, Dr. Howenstine was not qualified to offer an opinion as to whether the protocol employed by the Michigan State Police laboratory was comparable to that approved of in Adams, or the significance which should be attributed to any distinction between the two. This is significant as this issue directly impacted the question of the admissibility of the DNA.

More significantly, as Dr. Grunbaum indicates, the Cellmark protocols also differ from the protocols employed by Dr. How-enstine with respect to population data and matching criteria. As indicated above, these are items that do not call into question the “quality” of the product of the DNA extraction, but rather call into question the validity of the interpretation. This goes directly to the weight that the judge should have given to the DNA evidence.

In short, because of his total lack of preparation Narregan was unable to challenge Dr. Howenstine’s assertion that the protocols and procedures she employed were indistinguishable from the protocols and procedures approved of by the Adams court. As detailed above, this was a significant failure on Narregan’s part.

As noted above, after DNA is extracted it is sorted by use of a gel, into which DNA fragments from the victim, the suspect, and the crime scene will generally be placed. This enables all the relevant fragments to be extracted and sorted (and ultimately analyzed) under identical conditions. This was not done in the present case, a matter never addressed by Narre-gan.

As Dr. Howenstine testified, in November 1991 she extracted and analyzed DNA from Shirley Martin, Eric Schippers, and the crime scene (including material recovered during Martin’s post-assault medical examinatio