Vasquez v. Bradshaw (522 F. Supp. 2d 900, 2007)

MEMORANDUM OF OPINION AND ORDER

DAN AARON POLSTER, District Judge.

Before the Court is the Report and Recommendation of Magistrate Judge George J. Limbert (“R & R”) (ECF No. 35). Pending is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By A Person In State Custody, filed by Petitioner Robert S. Vasquez (the “Petition”) (ECF No. 1). For the following reasons, the Court declines to adopt the R & R and CONDITIONALLY GRANTS the writ.

I. PROCEDURAL BACKGROUND

On December 18, 2000, Vasquez was sentenced to life imprisonment for his conviction on a rape charge. (ECF No. 31-4, Ex. 3, Judgment Entry.) He was also sentenced to nine years’ imprisonment, to run concurrently, for his conviction on a kidnapping charge. (Id.) Vasquez was represented at trial and at sentencing by attorney Donald Butler. On March 7, 2000, more than one month after the expiration of his time for filing a direct appeal, Vasquez filed a pro se notice of appeal of his conviction. (ECF No. 31-5, Ex. 4, Notice of Appeal.) On March 21, 2001, newly-appointed appellate counsel Norm Incze filed a motion for leave to file a delayed direct appeal. (ECF No. 31-6, Ex. 5, Motion for Leave to File Delayed Appeal.) On April 6, 2001, attorneys Mark Marein and Steven Bradley (new counsel retained by Vasquez’s family) filed another motion for leave to file delayed direct appeal. (ECF No. 31-7, Ex. 6, Motion for Order Granting Leave of Court File Delayed Appeal Instanter.) The Ohio Court of Appeals granted Vasquez leave to file a delayed direct appeal on April 12, 2001. (ECF No. 31-8, Ex. 7, Journal Entry.) After receiving the parties’ briefs, the appellate court affirmed the convictions in a decision issued November 1, 2001. (ECF No. 31-12, Ex. 10, Journal Entry and Opinion. See also, State v. Vasquez, No. 79319, 2001 WL 1352781, 2001 Ohio App. LEXIS 4910 (Ohio Ct.App. Nov. 1, 2001).) Vasquez did not appeal this decision to the Ohio Supreme Court.

On July 23, 2001, while his direct appeal was pending in the Ohio Court of Appeals, attorneys Marein and Bradley filed a motion for leave to file a motion for new trial in the Court of Common Pleas. (ECF No. 31, Ex. 11, Motion for Leave to File New Trial Motion Instanter (previously filed at ECF No. 13).) The trial court (Judge Robert Glickman) granted leave to file a motion for new trial. (ECF No. 31-13, Ex. 12, Journal Entry.) One week later, the trial court vacated its order and held the motion for leave in abeyance until the Ohio Court of Appeals ruled on Vasquez’s appeal. (ECF No. 31-14, Ex. 13, Journal Entry.)

While his direct appeal was pending, attorneys Marein and Bradley also filed a petition for post-conviction relief in the trial court, accompanied by affidavits from witnesses Vasquez claimed would have testified at trial had attorney Butler investigated the case properly. (Post-Conviction Hearing Findings, at 1-2.) These affi-ants/would-be witnesses included Ms. Tammy Salopek; Ms. Ashley Snyder; Ms. Joanne Kitchen; Ms. Becky Shaffer (nee Egbertson) (“Becky Shaffer” or “Becky”); and Ms. Karra Yasquez (“Karra Vasquez” or “Karra”). (ECF No. 31-15, Ex. 14, Petition for Post-conviction Relief.) On May 14-17, 2002, Judge Glickman held a hearing on both the petition for post-conviction relief and the motion for new trial, at which the affiants testified. (ECF No. 31, Exs. 37-38.) Butler and Vasquez also testified. (Id.) After additional briefing by the parties, the court denied both the petition and the motion for leave to file a motion for new trial. (ECF Nos. 31-37, Ex. 23; 31-38, Ex. 24; 31-39, Ex. 25.) (The testimony presented at the post-conviction hearing is addressed later in this Opinion.)

Represented again by attorneys Marein and Bradley, Vasquez appealed the denial of his post-conviction petition to the Ohio Court of Appeals. (ECF No. 31-10, Ex. 26.) The appellate court affirmed the trial court’s denial of Vasquez’s post-conviction petition. (ECF No. 31-53, Ex. 30, Journal Entry and Opinion; see also ECF No. 31-54, State v. Vasquez, No. 82156, 2004 WL 35766, 2004 Ohio 53; 2004 Ohio App. LEXIS 47 (Ohio Ct.App. Jan. 8, 2004).)

Represented anew by attorney Karl Rissland, Vasquez appealed the decision of the Ohio Court of Appeals to the Ohio Supreme Court. (ECF No. 31-55, Ex. 32.) On June 9, 2004, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. (ECF No. 31-60, Ex. 36.)

On June 29, 2005, represented by attorney Gordon Friedman, Vasquez filed the instant habeas petition alleging the following four grounds for relief:

GROUND ONE: Denial of effective assistance of [trial] counsel as guaranteed by [the] Sixth Amendment [to the] U.S. Constitution.

Supporting Facts: Although Petitioner was facing a life sentence, counsel failed to adequately meet and discuss the charges. Counsel met Petitioner only three times in sessions of 15-20 minutes each.

GROUND TWO: Ineffective assistance of [trial] counsel.

Supporting Facts: Counsel failed to adequately investigate [the] case and interview potential witnesses, including various family members of Petitioner and individuals present at the time of the alleged crime.

GROUND THREE: Ineffective assistance of [trial] counsel.

Supporting Facts: Counsel failed to adequately prepare for trial. He filed only three boilerplate motions, none of which were tailored to the specific charges or facts of Petitioner’s case. There was no attempt to challenge competency of minor child. No attempt to review records of Children’s Services relating to victim. No Motion to Appoint Investigator in life case; no Motion for Independent Psychological Exam of Victim; No request of ER Report; no request for EMS report.

GROUND FOUR: Ineffective assistance of [trial] counsel.

Supporting Facts: In trying case. Because of failures above, the cross-examination [of] state witnesses which led to the admission of damaging evidence relating to Petitioner that would otherwise have been inadmissible.

(ECF No. 1, Petition at 4-5.)

On November 3, 2005, Respondent filed a motion to dismiss the habeas petition as time-barred, or, in the alternative, to hold the petition in abeyance pending exhaustion of state remedies on the grounds that the petition contains both exhausted and unexhausted claims. (ECF No. 11.) Vasquez filed a brief in opposition to Respondent’s motion to dismiss on December 5, 2005.(ECF No. 16.) Magistrate Judge Limbert issued an Interim Report and Recommendation on March 29, 2006. (ECF No. 17) Both parties filed Objections thereto. (ECF Nos. 18, 21.)

The Court then issued a Memorandum of Opinion and Order on June 22, 2006, declining to adopt the Interim Report and Recommendation, and granting Respondent’s motion to hold the petition in abeyance, pending exhaustion of Vasquez’s state court remedies. (ECF No. 23.) In the order, the Court also found that Vasquez’s first and second habeas claims were exhausted, id. at 7, his third claim was procedurally defaulted, id. at 11-12, and his fourth claim was unexhausted, id. at 14 (incorrectly reciting that “Vasquez’s third ground for relief is unexhausted.”) because he had not filed a direct appeal with the Ohio Supreme Court.

Vasquez returned to state court to fully exhaust his claims by filing a motion for delayed appeal with the Ohio Supreme Court. (ECF No. 24.) On October 4, 2006, the Ohio Supreme Court denied his motion. (ECF No. 25.) Vasquez filed a notice of return to federal court on October 25, 2006. (ECF No. 26.)

Pursuant to the Court’s June 22, 2006 Order, Magistrate Judge Limbert retained jurisdiction over the case for a review of the merits upon Vasquez’s return to federal court. (ECF No. 23, 15.) Respondent filed a Return of Writ on January 12, 2007, ECF No. 30, accompanied by a lengthy Appendix to Return of Writ containing the entire record to that point, ECF No. 31. After receiving an extension of time, Vasquez subsequently filed his Traverse to Return of Writ on March 5, 2007. (ECF No. 34.)

Magistrate Judge Limbert issued his Report and Recommendation on April 13, 2007, recommending that the Court dismiss the petition, on the merits as to grounds (1) and (2), and due to procedural default for grounds (3) and (4). Vasquez filed timely Objections to the R & R, ECF No. 37, and the Court ordered Respondent to respond to the Objections, to which Vasquez was ordered to file a reply, ECF No. 38. Respondent filed a response to Vasquez’s Objections on June 12, 2007. (ECF No. 39.) Vasquez filed his reply on July 26, 2007. (ECF No. 41.)

II. FACTUAL BACKGROUND

Pursuant to 28 U.S.C. § 2254(e)(1), the Court “is to apply a presumption of correctness to state court findings of fact for habeas corpus purposes unless clear and convincing evidence is offered to rebut this presumption.” Benge v. Johnson, 474 F.3d 236, 241 (6th Cir.2007) (quoting McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004) (citations omitted)). The Court counts numerous court recitations of “the facts” in the case record. Notably, however, only two findings of fact serve as the basis for all the other recitations; first, the Ohio Court of Appeals’ November 1, 2001 opinion on Vasquez’s direct appeal (the “Direct Appeal Opinion”), and second, the Ohio Court of Common Pleas December 6, 2002 Findings of Fact and Conclusions of Law issued following Vasquez’s post-conviction hearing (the “Post-conviction Hearing Findings”). The other recitations (whether nominally termed “findings” or otherwise) of fact relied in whole or in part on the findings from either or both of the above-mentioned two opinions. Consequently, any facts that, upon a closer review, appear erroneous were perpetuated in later opinions.

While the Court must generally defer to the factual findings of the state courts, the Court may make its own factual findings in place of “facts” that are erroneous as shown by clear and convincing evidence. See Benge, 474 F.3d at 241. A comprehensive review of the 800-plus pages of transcript in the record, in addition to the rest of the documents contained in the record, provides clear and convincing evidence that the facts as found in the Direct Appeal Opinion and Post-conviction Hearing Findings (and, therefore, the Post-conviction Appeal Opinion) are inaccurate in numerous places. Accordingly, the Court will cite to the trial (“Trial Tr.”) and post-conviction hearing (“Hr’g Tr.”) transcripts to support its conclusion that certain factual findings by the state courts are clearly erroneous.

The facts of the underlying case are as follows.

A. The Alleged Attack

On July 23, 2000, nine-year-old Ashlee Loomis (“Ashlee” or “Ashlee Loomis”) and her father, Steve Loomis (“Steve” or “Steve Loomis”), went to Don Shaffer’s (“Don Shaffer” or “Shaffer”) house to join friends in eating a late dinner. (ECF No. 31, Ex. 10, Direct Appeal Opinion, at 618.) By the time Ashlee and Steve Loomis arrived at Don Shaffer’s condominium, however, it was late and Shaffer and Becky had retired for the night. (Id. at 619.) Vasquez, his wife Karra, and their two young daughters Ashley and Renee had just moved in to Don Shaffer’s basement earlier that day. (ECF No. 31 Appendix to Answer/Return of Writ, Ex. 38, Hr’g Tr. at 243:12-13; 306:24-307:10.) At some point after Ashlee ate her fast food, she descended the 10-12 stairs to the basement of Don Shaffer’s condo at least once. (Hr’g Tr. at 306:11-14.) Karra Vasquez and Steve Loomis were upstairs, just at the screen door that is situated at the top of the stairs that lead into the basement. (Hr’g Tr. at 305:9.) Vasquez, meanwhile, was in the basement with the two Vasquez girls, and, for a period of about five minutes, with Ashlee. (Hr’g Tr. at 302:22-25.) Approximately 15-20 minutes after Ashlee and her father arrived at Don Shaffer’s, Steve Loomis called to her from the top of the stairs that it was time to go home. (Hr’g Tr. at 306:11-21.) At that point, Ashlee came up the stairs, and she and her father left for home. (Id.)

B. Reporting the Attack

On July 24, 2000, Ashlee and her older sister Kaylee left Cleveland to spend a week with their grandparents in Rochester, New York. (ECF No. 31, Ex. 10, Direct Appeal Opinion, at 619-20.) The girls returned home approximately a week later, or slightly longer. (ECF No. 31, Ex. 11, Motion for Leave to File New Trial Motion Instanter, Ex. 11, Trial Tr. at 127:23-128:5.) After the girls’ return, Steve Loomis took them on August 4, 2000 to Don Shaffer’s condo, where Kaylee babysat Ashlee, Shaffer and Becky’s infant son Aaron, and the two Vasquez girls. (Trial Tr. at 205:3-10.) Later that day, Vasquez and Don Shaffer — who worked together at a restaurant in the Flats— arrived home from work together. (Trial Tr. at 204:18-24.) Shortly thereafter Ashlee told Shaffer that she needed to talk to him. (Direct Appeal Opinion, at 620.) She then proceeded to tell Shaffer that Vasquez had sexually assaulted her by “licking her private spot.” (Trial Tr. at 206:19-20.)

Hearing Ashlee’s accusation, Don Shaffer conveyed the information to Steve Loomis, who was his best Mend. (Direct Appeal Opinion, at 618.) Steve Loomis, in turn, called his partner, Officer Tim Zbikowski, who quickly arrived at the condo. (Trial Tr. at 134:2-4; 134:22-135:9.) At that point, Steve Loomis and Zbikowski talked about the allegations with Ashlee. (Id. at 135:12.) Thereafter 911 was called, and numerous police and emergency personnel arrived. (Trial Tr. at 209:12-24.) Ashlee and Steve Loomis, accompanied by Becky Shaffer and her infant son Aaron, went by ambulance to Metro Hospital, where a physical exam was performed and Ashlee recounted her allegations. (Hr’g Tr. at 253:14-25, 257:17-25; Trial Tr. at 141:8-14.) No DNA evidence was found during the examination or during the subsequent investigation.

C. The Prosecution and Trial

1. Pre-Trial

On August 16, 2000 Vasquez was indicted, and he was arraigned on August 21, 2000. (ECF No. 31-40, Ex. 26, Notice of Appeal, Cuyahoga App. No. 82156, Trial Docket (the “Trial Docket”).) Prosecutors charged Vasquez with one count of rape of a child under the age of thirteen in violation of Ohio Revised Code (“ORC”) § 2907.02, and one count of kidnapping in violation of ORC § 2905.01, with a sexual motivation specification. (Direct Appeal Opinion, at 618.)

Vasquez remained in custody from the time he was arrested. (See generally, Trial Docket.) At the August 21, 2000 arraignment, the trial court declared Vasquez indigent and appointed Attorney Pat D’Angelo as Vasquez’s counsel. (Id.) Vasquez entered a plea of “Not Guilty” at the arraignment. (Id.) D’Angelo moved to withdraw from the case on September 14, 2000, which the court granted. (Id.) The court then appointed attorney Don Butler to represent Vasquez on the same day. (Id.) Butler appeared at the first scheduled pretrial, on September 21, 2000, at which he requested a continuance. (Id.) The court continued the matter until October 12, 2000, at which point Vasquez made his first appearance in court since he entered his “Not Guilty” plea on August 21, 2000. (Id.) An additional pretrial was held on October 19, 2000, at which Vasquez appeared in court as well. (Id.) The case proceeded to trial, which commenced on October 30, 2000, before Cuyahoga County Court of Common Pleas Judge Frank D. Celebrezze, Jr. (Id.)

2. Trial

The prosecution’s case in chief rested entirely on Ashlee Loomis’s testimony about the alleged attack, supported by Steve Loomis’s testimony about Ashlee’s demeanor in the time following the alleged incident. The prosecution also presented a few other witnesses, including Don Shaffer, Officer Teresa Vega, Sally McHugh (“McHugh”), and Detective James Chap-pelle. These witnesses generally testified about what Ashlee had told them about the alleged incident, or what they had learned in the course of investigating the case. Prosecutors presented no DNA or other physical evidence to support the charges.

Butler’s cross-examination of Ashlee Loomis was limited in scope and duration, and arguably even more damaging than helpful to Vasquez’s defense; at one point Butler asked Ashlee if she kept a diary, to which Ashlee replied that she did. (Trial Tr. at 98:8-10.) Ashlee had not mentioned the diary in her direct examination, and the prosecutor had not offered it as an exhibit. Butler then asked whether Ashlee had written about the alleged incident in her diary, to which Ashlee again answered in the affirmative. (Id. at 98:12-16.) He pressed on to ask whether Ashlee had brought the diary to court that day, and Ashlee answered no. (Id. at 98:17-18.) Butler then concluded his questioning about Ashlee’s diary by asking if she still had it, to which Ashlee answered yes. (Id. at 98:20-21.) Butler asked no other questions about the diary, nor did he ever demand to see the diary after learning of its existence.

After the prosecution rested, Butler did not call a single defense witness, fact or character. He did not move for a motion in limine regarding supposed other allegations of sexual misconduct against Vasquez — vague, unsubstantiated and uninves-tigated allegations that the prosecutor had relayed to him, Hr’g Tr. at 139:10-24,— and Vasquez did not testify. Having heard the prosecution’s case — the ten-year-old victim, no physical evidence, a substantial delay in reporting the alleged incident, combined with the improbable circumstances of Vasquez assaulting Ashlee while other adults (including a Cleveland Police Department officer and Vasquez’s wife) were upstairs in a tiny home and two other young children were in the same room — Butler renewed his Criminal Rule 29 motion, and then rested his defense at approximately 10:10 a.m. on Thursday, November 2, 2000. (Trial Tr. 293:7-14.)

Closing arguments and the Charge of the Court followed. (Trial Tr. at 2.) The jury was excused to deliberate around lunch time. (See id. at 370:12-17). By the start of the “Thursday Afternoon Session” on the same day, id. at 371:1, the jury returned a guilty verdict on both counts. (Id. at 371:21-373:15.) A sexual offender hearing and sentencing followed on December 18, 2000. (Trial Tr. at 389:6-8; ECF No. 31-4, Ex. 3, Judgment Entry.)

D. Post-Conviction Hearing

During the May 14-17, 2002 post-conviction hearing, Vasquez presented affidavits and corresponding testimony from several individuals. The critical testimony is as follows.

1. Don Butler’s Post-Conviction Hearing Testimony

Butler testified and described his efforts representing Vasquez. Butler testified that he was assigned to the case on September 14, 2000. (Hr’g Tr. at 89:4-8.) Butler testified that he was “pretty sure” he talked with Vasquez in a holding cell following a pretrial on September 14, 2000. (Hr’g Tr. 90:22-23). He had no notes in his case file, however, to verify that he did, in fact, meet with Vasquez that day. (Hr’g Tr. 93:21-25; 94:1-12.) He further testified that he met with Vasquez on at least three occasions. First, Butler testified that he met with Vasquez on October 12, 2000, in a holding cell after a pretrial conference, for between 12 and 25 minutes. (Hr’g Tr. 109:24-25-110:1-12; 349:7-14.). Second, Butler further testified that he met with his client on October 19, 2000, again in a holding cell after a pretrial conference, for about the same duration. (Hr’g Tr. 112:11-13; 350:18-24.) Third, Butler testified to meeting with Vasquez for another brief meeting on October 29, 2000, the night before trial, at Jail Number One. (Hr’g Tr. 121:23-25-122:1-10; 352:20-25-353:1-5.)

Butler also testified that he did some amount of pretrial preparation, such as legal research on child rape cases, Hr’g Tr. 103:4-15, filing standard discovery requests, Hr’g Tr. 100:6-16, and conferencing informally with the initial prosecutor, Hr’g Tr. 92:13-19; 110:16-111:2. Butler further testified that he requested that Vasquez sign a speedy trial waiver on two occasions, the first during the October 19, 2000 conference, and again during the brief meeting on October 29, 2000. Id. at 350:25-351:23. Notwithstanding Vasquez’s refusal to sign the speedy trial waiver, Butler testified that he was prepared to try the case when the October 30, 2000 trial commenced. (Hr’g Tr. 125:9.) According to Butler’s affidavit and supporting testimony, he made a professional judgment that there were no helpful witnesses for him to present at trial. (See Hr’g Tr. 125:9-15.)

Related to his investigation of the case, Butler testified that at some point Vasquez provided him with the name and phone number for Kitchen, Vasquez’s mother-in-law. According to Butler’s testimony, Vasquez asked him to speak to Kitchen, as Kitchen would be able to provide Butler with the contact information for Karra Vasquez, from whom Butler could learn additional information about the case. (Hr’g Tr. 116:1-2, 13-16.) Butler testified that he subsequently telephoned Kitchen. (Hr’g Tr. at 116:19-20.) In Butler’s version of the events as recounted at the hearing, Kitchen emphatically told him that no one from her family would help Butler with Vasquez’s defense, and that the family would do everything they could to make sure Vasquez stayed away from Karra. (Hr’g Tr. 116:19-24, 117:10-19.) Butler conceded, however, that he did not make any contemporaneous notes of the conversation. (Hr’g Tr. at 119:21-120:2.)

Butler also conceded in his testimony that he did not talk with Karra Vasquez, nor did he make any attempts to contact Karra beyond his singular telephone conversation with Kitchen. (Hr’g Tr. 118:8— 119:2.) Butler denied that Karra Vasquez called him. (Id.)

Additionally, Butler testified that although he stated in his affidavit that it was his professional judgment that Becky Shaffer would not be a helpful witness, he did not actually talk with Becky, nor did he make any attempt to contact her. (Hr’g Tr. 121:2-4, 15-17.) Furthermore, he testified that he did not know about or speak with Tammy Salopek or her daughters, including Ashley Snyder. (Id. at 125:16-126:2.)

Finally, Butler testified that he did not have any documentary evidence to substantiate the vague allegations of other child abuse charges to which the prosecutor had referred in some meetings with Butler. (Hr’g Tr. at 139:10-24.) He also testified that he had no notes of any of his conversations with his client or with either of the prosecutors. (See, e.g., Hr’g Tr. at 93:21-94:12; 123:22-124:3; 124:15-20; 109:16-23; 112:2-6.)

Subsequent witness testimony explicitly and directly contradicted Butler’s testimony on a number of critical points.

2. Karra Vasquez’s Post-Conviction Hearing Testimony

a. Testimony about the investigation

Karra Vasquez gave specific testimony about numerous phone calls not only to Butler but to Attorney D’Angelo as well, calls that went unreturned. (Hr’g Tr. at 321:1-18.) Karra emphatically disputed Butler’s testimony that she never contacted him, detailing her numerous attempts to talk with him about the case. (See generally, Hr’g Tr. at 321-322.) Karra testified that she made repeated phone calls to Butler’s office to speak with him about Vasquez’s case, but “he was never there.” Id. at 321:15-18. She testified that she left her name, telephone number, and reason for calling with Butler’s secretary, and was told that Butler would call her back. Id. Butler, according to Karra’s testimony, never returned her calls. Id. at 322:16-17.

Karra Vasquez further testified that she attempted to help Vasquez initially, but that she did not attend the trial or sentencing because she felt threatened by social worker McHugh. (See Hr’g Tr. at 335:12-20; 329:8-15; 318:4-320:19.) According to Karra’s testimony, McHugh threatened to remove Karra’s children on grounds of child negligence if Karra persisted in believing that her husband was innocent and in helping his defense. (Hr’g Tr. at 318:4-320:19.)

b. Testimony about the underlying events

In addition to testifying about the investigation, Karra Vasquez also testified about personal observations from the nights of July 23, 2000 and August 4, 2000. Her testimony stands in contrast with that offered by witnesses at trial.

First and most critically, Karra specifically testified that she observed that Ashlee was wearing a bathing suit on the night of July 23, 2000:

Question: As you reflect on what you observed that night, did you notice anything about, number one, her clothing?

Answer: She was wearing a swim suit.

Question: Did the swim suit or any other attire appear to be disheveled?

Answer: No.

(Hr’g Tr. at 306:1-5.) Conversely, Ashlee testified at trial — and told others who then recounted that same telling at trial— that Vasquez “pulled down my pants and underwear” before allegedly licking her vagina. (Trial Tr. at 41:5-7, 42:3-4.) Furthermore, Ashlee testified that when her father called from the top of the stairs to tell her it was time to leave, she “pulled my underwear and pants back up” and went back upstairs. (Id. at 48:3-4.) Steve Loomis testified at trial that Ashlee had told him that Vasquez “took her pants— her shorts and her panties off’ and that when her father called from the top of the stairs, Ashlee “pulled her clothes on.” (Trial Tr. at 170:8-9,16-17.)

Second, and just as critically, Karra testified that Ashlee

actually went down [to the basement] twice. She went down the first time for just a few minutes. Came back up. And then she went down the second time, and I could hear that they were changing Renee’s diaper, getting the kids ready for bed. And then Steve said that it was time to go and he yelled down the steps and said Ashlee, it is time to go. She came running up the steps, because her dad called her, it was time to go, and they left.

(Hr’g Tr. 306:11-21.)

Karra Vasquez’s testimony again explicitly contradicts Ashlee’s account of the events that night; Ashlee testified at trial that she went down to the basement at Vasquez’s invitation, she crawled up on the top bunk, he held her down and molested her, and only let her go when her father called her from the top of the stairs to say it was time to go. (See generally Trial Tr. 38-48.). Steve Loomis’s testimony does nothing to bolster either side, as he testified that he did not actually observe Ashlee from the time he left her to eat her fast food in the living room until the time when he called to her from the top of the steps, because he had gone outside to talk with Karra Vasquez. (Trial Tr. 124:24-125:11.)

Third, Karra Vasquez testified that she, her husband, and their two daughters had just moved into Don Shaffer’s basement on July 23, 2000, the night the alleged incident occurred. (Hr’g Tr. 306:24-307:10.)

Karra Vasquez’s testimony conflicts with the version of events to which Ashlee previously testified. Ashlee testified that she met Vasquez for the first time at a family gathering at Kitchen’s house. (Trial Tr. at 76:6-25.) Ashlee then testified that the second time she met Vasquez was at Don and Becky Shaffer’s place, and that Vasquez, Karra Vasquez, and their two daughters had moved in to the Shaffer residence at the time. (Trial Tr. at 78:17-79:5.) According to Ashlee, nothing happened with Vasquez on that second occasion (which, according to the otherwise-undisputed testimony, was the day Vasquez and his family moved in):

Question: Now, when you saw them the second time, which was at Don’s and Becky’s house, did anything happen on that occasion?

Answer: That occasion, no.

Question: Beg your pardon?

Answer: No.

Question: All right. And did Rob speak to you?

Answer: No.

Question: He didn’t say hi?

Answer: He said hi.

Question: All right. Did you say hi? Answer: Yes.

Question: All right. And did he ask you go anyplace with him on that occasion?

Answer: No.

(Trial Tr. at 79:7-24.) This testimony contradicts the testimony that the alleged attack happened on the day that Vasquez and his family moved into Don Shaffer’s basement.

Fourth, Karra testified that Vasquez took their two young children down to the basement at around the same time Don Shaffer and Becky went upstairs to bed. (Hr’g Tr. 302:17-22.) Thus, Karra Vasquez testified, she was the only person upstairs (i.e. in the kitchen/living room area) when Ashlee and Steve Loomis arrived to eat. (See Trial Tr. 303:8-14.) She testified that Vasquez was already in the basement with their children when the Loomises arrived. (See id.) According to Karra, Ashlee “was up with us [i.e. Karra and Steve] and we were talking, and she said she wanted to see the kids, so she ran down to the basement. She was down there for maybe five minutes and came back up.” (Id. at 305:22-25.)

Conversely, Ashlee alternately testified that “just Don [Shaffer]” was awake when she and her father arrived at the condo to eat, Trial Tr. 33:5-7; 90:6-8; that she saw Vasquez when she arrived at Don Shaffer’s, Trial Tr. 33:9-11, 25; 34:1-2; and that when she arrived at the condo with her father, “Karra was on the couch watching T.V. with Rob[ert],” 92:18-25. Ashlee also testified that Vasquez asked her to go down to the basement with him when Karra Vasquez and Steve Loomis began talking. (See Trial Tr. 36:12-15; 38:9-13.)

Karra Vasquez’s testimony similarly conflicts with Steve Loomis’s testimony about that night; he testified at trial that Vasquez was in the kitchen when Ashlee and Steve arrived, and that he “saw Rob go down into the basement.” (Trial Tr. 124:1-2; 125:5.)

Fifth, Karra Vasquez testified that she heard conversation between Ashlee and Steve Loomis on the night Ashlee reported the alleged attack. Karra Vasquez testified that she was standing inside the screen door, while Ashlee and Steve were “standing right on the stoop” outside the door. (Hr’g Tr. 110:1-4.) According to Karra Vasquez, Steve Loomis asked Ashlee specific questions while she was recounting the alleged attack, such as when and how the incident happened, and how long did it take. (Hr’g Tr. 315:5-11.) Ashlee’s initial response, Karra Vasquez testified, was that the incident took four episodes of Rugrats, which was two hours, to which Steve Loomis responded “that’s too long. It couldn’t have been two hours. You need to really think about this.” (Hr’g Tr. 315:12-16.) Karra Vasquez further testified that Steve and his partner [Officer Zbikowski, who was not officially on duty at the time] were telling Ashlee that “you have to get this right. You have to make sure that you know exactly what you are going to say and repeat this to every person that asks you. You can’t change your mind.” (Hr’g Tr. 315:21-316:1.)

Sixth, Karra Vasquez testified that while she was at the front screen door listening to Ashlee talk with her father and Officer Zbikowski, Ashlee “kept responding as— well, does this mean I get to be on TV? If I tell them this do I get to be on TV. And she was laughing, giggling.” (Hr’g Tr. 316:2-4.)

3. Becky Shaffer’s Post-Conviction Hearing Testimony

Like Karra Vasquez, Becky Shaffer was present on the night of the alleged incident, although she was asleep at the time. She was also present for many of the events that occurred on the night of August 4, 2000. Yet Becky, like Karra Vasquez, was not called as a witness at the trial. The critical portions of her testimony are as follows.

a. Testimony about the investigation

Becky Shaffer testified that Butler never talked with her to see what she might have to say. (Hr’g Tr. 262:21-22; 288:25-289:5.) She also testified that she received a subpoena from the prosecution to testify at trial, that she was in the courthouse all three days of the trial, and that she did not end up testifying at the trial. (Hr’g Tr. at 262:23-265:7.)

b. Testimony about the underlying events

First, Becky Shaffer testified that she and her infant son Aaron rode with Ashlee and Steve Loomis in the ambulance on August 4, 2000. (Hr’g Tr. 253:14-25.) According to Becky’s testimony, Ashlee appeared excited by the attention she was receiving during the ride to the hospital. (Id. at 255:8-12). Moreover, Becky specifically testified that “Ashlee asked if she was going to be on TV” while she was being attended in the back of the ambulance. (Id. at 255:22. See also, 256:7-8.) Becky testified that she found this statement “odd because Ashlee craved attention. And that is why — and that’s why some of this didn’t sit well with some of the things that went on.” (Hr’g Tr. at 266:3-11.) Becky was not questioned about the statement on cross-examination. This testimony echoes Karra Vasquez’s testimony that Ashlee made the same statements about getting on TV while talking with her father and standing outside the door at the condo.

Second, Becky Shaffer testified that Vasquez, Karra Vasquez and their children had just moved into Don Shaffer’s basement on July 23, 2000. (Hr’g Tr. 243:12-13.) This testimony reconfirms Karra Vasquez’s testimony, and similarly conflicts with Ashlee’s trial testimony that nothing happened on the day the Vasquez family moved into Don Shaffer’s basement.

Third, Becky Shaffer testified that on the night of July 23, 2000 she and Don had gone upstairs to bed before Ashlee and Steve Loomis arrived at the condo. (Hr’g Tr. at 246:10-16.) She further testified that she was at work on the night of August 4, 2000 and came home in response to a phone call. (Hr’g Tr. at 249:1-20.)

This contradicts Ashlee’s testimony that on the night of the alleged attack (July 23, 2000), Becky was at work and that Becky came home when Ashlee was in the ambulance. During direct examination about what happened on the night of July 23, 2000, Ashlee testified as follows:

Question: Where was Becky?

Answer: Becky was at work.

Question: She was at work?

Answer: Yeah.

Question: Okay. She wasn’t in bed?

Answer. No.

Question: And you say Becky was at work?

Answer: Yes.

Question: How do you know Becky was at work?

Answer: Because when I was in the ambulance she came home, so that’s how I know.

Question: She came home from work? Answer: Yes.

Question: Well, wait a minute. I’m not talking about the time — I’m not talking about when you told Uncle Don [Shaffer] what happened. I’m talking about when you went there and you had Burger Kings [sic].

Answer: I know.

Question: All right. I’m talking about when you say Rob touched your private part, where was Becky on that day?

Answer: At work.

Question: July 23rd?

Answer: At work.

(See Trial Tr. at 91:9-92:2.)

Fourth, Becky Shaffer testified that she took her son Aaron to the hospital on the night of August 4, 2000, because Steve Loomis and “the other police officer” [Zbi-kowski] told her to do so, Hr’g Tr. 272:8-16, not because she suspected or was concerned that Vasquez had sexually abused Aaron. (See Hr’g Tr. 271:24-272:16; 273:1-274:15.)

Fifth, Becky Shaffer testified that she had talked to the prosecutor about her concern regarding a conversation between Becky and Sally McHugh, during which conversation McHugh told Becky that she [McHugh] might be taking Karra Vasquez’s children away. (Hr’g Tr. 293:8-11.)

4. Joanne Kitchen’s Post-Conviction Hearing Testimony

Joanne Kitchen also testified at the post-conviction hearing. Although she was not present in the Shaffer home on either July 23, 2000 or August 4, 2000, she testified about her conversation with Don Butler. She was also present when social worker McHugh interviewed Karra Vasquez, and her testimony shed additional light on why Karra Vasquez did not play a more active role in Vasquez’s defense. Additionally, Kitchen testified about her personal observations of Ashlee’s desire for attention. Her critical testimony is as follows.

a. Testimony about the investigation

First, Kitchen did not contest Butler’s testimony that he telephoned Kitchen. (See Hr’g Tr. 116:19-20; 203:10-13.) Kitchen’s testimony, however, hotly disputed the substance of that conversation as Butler recounted in his testimony. Kitchen testified that she only told Butler that she was not present on the night of the alleged attack and didn’t know what went on that night. (Hr’g Tr. 204:19-23.)

Kitchen also testified to the following: (1) that she never told Butler that none of her family would help him defend Vasquez (Hr’g Tr. 204:24-25-205:1-10.); (2) that she never told Butler that she and her family would do everything they could to make sure Vasquez stayed in jail (Id. at 205:11-14.); and (3) that she never told Butler that she and her family would not cooperate in defending Vasquez (Id. at 205:15-18.). According to Kitchen, the telephone call lasted only two to three minutes. (Id. at 205:19-21.) Kitchen also testified that Butler never contacted her again. (Id. at 206:1-3.)

Second, Kitchen testified that McHugh indicated that the Department of Human Services would take action against Karra Vasquez regarding her children if Karra cooperated with Vasquez’s defense. (Hr’g Tr. 202:2-6,12-18.) According to Kitchen, McHugh stated that she would investigate if Karra Vasquez could keep the children, if Karra Vasquez was a fit mother, and that there was a possibility of putting Kar-ra Vasquez’s children in foster care. (Id. at 203:1-4.) While Kitchen declined on a few occasions to use the word “threatened” to describe McHugh’s statements to Karra Vasquez about the children, the following exchange occurred during cross-examination:

Question: [Y]our testimony this morning was that you didn’t think that the social worker threatened Karra, is that correct? Is that what you said this morning?

Answer: I said I didn’t like the word threatened.

Question: So you didn’t think that the social worker said anything that was threatening or that she made no threat?

Answer: Well, she did.

Question: Well, she did or she didn’t?

Answer: She did. Well, not—

Question: Is it a threat or wasn’t it?

Answer: I don’t like you using the term threatened. I mean, that’s a strong word.

The Court: Let me ask a question: You were present during the conversation between Ms. [McHugh] and your daughter?

Answer: Yes.

The Court: Putting yourself in your daughter’s [Karra’s] shoes, would you have felt threatened by [McHugh’s] statement?

Answer: Yes.

The Court: Okay. Thank you.

(Hr’g Tr. 213:16-214:16).

b. Testimony about observations of Ashlee Loomis

Kitchen testified that Steve Loomis dated her daughter Christy for “a couple years.” (Hr’g Tr. 208:4-6.) Accordingly, Kitchen testified, she observed Ashlee on several occasions and interacted with the girl at various “family functions” to the point where Ashlee called Kitchen “Grandma.” (Hr’g Tr. 193:11-23; 208:7-10.) Kitchen testified, based on her observations, that Ashlee was starved for attention without a mother, in the home, and that “whatever was going on [Ashlee] had to ... do one step better, or whatever the story was or whatever was going on, it had to be worse ... that kind of thing.” (Id. at 195:21-24.)

5. Tammy Salopek’s Post-Conviction Hearing Testimony

Tammy Salopek testified on Vasquez’s behalf. Importantly, Salopek provided compelling testimony about Ashlee’s character for truthfulness. Her testimony also directly contradicted Steve Loomis’s testimony in some critical aspects.

Salopek testified that she was good friends with Becky Shaffer, and that Salopek, Becky and Don Shaffer, and Steve Loomis were all part of a group that frequently socialized together. (Hr’g Tr. 143:18-25.) Salopek testified that she had a close relationship with Steve Loomis as a result of working with him for several years. (Hr’g Tr. at 143:9-22.) Salopek recounted that Steve Loomis’s children— Ashlee and Kaylee — would play with her own children of approximately the same age, Hr’g Tr. at 145:6-8; that Ashlee and Kaylee would stay over, and sleep over, at her house “a lot,” id. at 144:13-145:5; and that Ashlee was at Salopek’s house “on average two, three times a week” during the summer of 2000, id. at 144:13-17. Conversely, she testified that she did not know Vasquez, that he was not a friend of hers, and that she had never seen him before. (Hr’g Tr. 155:17-23.)

Salopek also testified that her own children had been sexually molested by their step-grandfather, who was prosecuted but plea-bargained because Salopek did not want her children to testify. (Post-Conviction Hearing Findings, at 17 (citing Hr’g Tr. at 151).)

a. Testimony about Ashlee Loomis’s character for truthfulness

Tammy Salopek testified to her observations of Ashlee Loomis’s character for truthfulness based on her observations of the girl. Salopek testified that she had ample occasion in her role as a caretaker to observe Ashlee. (Id. at 145:13-15.) When asked on direct examination about her parental perspective of Ashlee, Salo-pek described Ashlee by testifying that “she seeks attention a lot. She is a little, kind of like a little drama queen.” (Id. at 147:6-8.) Further testimony was as follows:

Question: [A]s a result of your interaction with [Ashlee], do you have an opinion as to the character of this child for trustworthiness and honesty?

Answer: Ashlee would — Ashlee would overexaggerate a> lot of things. I caught Ashlee lying to me a few times, on a few occasions. I would say no.

Question: What do you mean you would say no?

Answer: I would say no, she is not extremely trustworthy. I wouldn’t take anything that Ashlee would come and tell me on Ashlee’s word.

Question: Tell me why.

Answer: I would have to go investigate it. Because generally that’s not the way things happened and that’s not what ended up happening.

We had incidents. She had told me one time flat, out. I think she hit Brandy, my daughter. And I mean, I saw her. I heard her. There was a mark on Brandy. And I flat out asked her why she did that, and she swore up and down she didn’t do that. So stuff like that.

Question: Is it more than just one occasion?

Answer: Yeah....

(Id. at Hr’g Tr. 147:2-148:18.) Salopek further testified at length about how she did not trust Ashlee, that Ashlee “overex-aggerates things,” and that Ashlee was “never truthful.” (See generally Hr’g Tr. 149-150:8.)

Moreover, Salopek testified that Ashlee craved attention, and that “[s]he is very, very melodramatic, very manipulative as far as her father is concerned .... she has got Steve right where she wants Steve.” (Id. at 150:9-21.) The extent to which Ashlee craved attention, according to Salo-pek, was unique to Ashlee as compared to attention-seeking by other children. (Id. at 151:5-14.) Salopek additionally testified that she would not blame anybody for anything that Ashlee told her, because Ashlee “is just not believable all the time. She just wasn’t.” (Id. at 158:1-10.)

b. Testimony about Ashlee’s demean- or following the reported allegations

Salopek testified about Ashlee’s behavior in the days following August 4, 2000. According to Salopek, Steve Loomis called and told her about the accusation lodged by Ashlee on Friday, August 4, 2000, and Ashlee stayed at Salopek’s house the next three or four days. (Post-conviction Hearing Findings, at 17.) During that time, Salopek testified, Ashlee had no trouble sleeping or eating, she acted normally, had no emotional outbursts, and in general showed no behavior that was cause for concern. (Hr’g Tr. 155:2-16.)

Critically, Salopek’s testimony about Ashlee’s behavior following August 4, 2000 directly contradicts Steve Loomis’s trial testimony as follows:

Question: Now, following the disclosure to you of this incident, did Ashlee exhibit any unusual conduct? Let’s start with the days immediately following.

Answer: Um, yes, ma’am. She, um, she woke up several times throughout the course of the night, um, complaining of dreams, bad dreams. Um, she wanted to know if Rob was in jail. She was afraid that he was coming over. We had to, um — subsequently, we had to walk around the house and make sure all the doors and windows were locked. We had to insure [sic] that Sammy, who’s our black Lab. was in the house. She was terrified.

Question: Now, in the days, let’s say, in the immediate, you know, week following the disclosure to you, was she able to sleep by herself through the night—

Answer: Yes, ma’am.

Question: — in the days immediately following this?

Answer: No, not immediately following it, but it’s gotten better since. Um, she’s only waking up occasionally, now.

Question: Was she able to sleep by herself immediately following this disclosure?

Answer: No, ma’am.

(Trial Tr. at 141:22-142:19.)

6. Ashley Snyder’s Post-Conviction Hearing Testimony

Ashley Snyder, who is Tammy Salopek’s daughter, is about the same age as Kaylee Loomis (Ashlee’s older sister). Snyder testified that she knows Ashlee Loomis well, though she is better friends with Kaylee because Snyder and Kaylee are closer in age. (Hr’g Tr. 167-168.) Snyder also testified that she had discussed with Kaylee the circumstances of Snyder’s (and her sister’s) sexual molestation at the hands of Snyder’s step-grandfather. (Id. at 168:17-169:3.) Snyder testified that she believed (but was not sure) that Ashlee Loomis was present during the discussion about the sexual molestation. (Id. at 169:3-4.)

Moreover, Snyder testified that she believed, based on past experiences with Ashlee Loomis, that Ashlee told lots of stories, would “lie right to my face,” and that “she did that very often.” (Id. at 170:19-171:4.) Finally, Snyder, like her mother, testified that Ashlee Loomis had spent three to four nights sleeping over at Snyder’s house in August of 2000, and that Ashlee did not exhibit any problems, unusual behavior, or crying while staying sleeping over. (Hr’g Tr. at 171:15-172:3.)

7. Vasquez’s Post-Conviction Hearing Testimony

Vasquez testified on his own behalf at the post-conviction hearing, and his testimony contradicted Ashlee’s and Steve Loomis’s testimony — and supported Karra Vasquez’s testimony — in some key places. Vasquez’s testimony also disputed Butler’s testimony in some respects.

a. Testimony about the investigation

Vasquez testified that he had no pretrial on September 14, 2000, and that he did not meet with Butler on that day, Hr’g Tr. 348:19-25, testimony that is verified by the trial court’s docket entry for that day. According to Vasquez’s testimony, the first time he met with Butler was on October 12, 2000, id. at 348:7-11, which contradicts Butler’s testimony that Butler met with his client in a holding cell on September 14, 2000.

Vasquez also testified that Butler never discussed any other allegations of sexual misconduct against Vasquez. (Hr’g Tr. at 377-78.) On the other hand, Vasquez testified that Butler did discuss drug and trespassing charges from Nevada, and that it was Vasquez’s understanding that Butler advised Vasquez not to testify at trial based on the two Nevada misdemeanors. (Hr’g Tr. at 376:7-10.)

b. Testimony about the underlying events

Vasquez testified that he did not see Steve Loomis on the night of July 23, 2000 and that he had no contact with Steve Loomis that night. (Hr’g Tr. 342:21-24; 343:17-19.) According to Vasquez’s testimony, he was already in the basement taking care of his two daughters when the Loomises arrived at Don Shaffer’s condo. (Id. at 342:24-343:1.) Vasquez testified that he was downstairs “changing my daughters, and then Ashlee Loomis came downstairs for five minutes. She went upstairs, then she came back downstairs, and then they left.” (Id. at 343:8-11.) He similarly testified that Ashlee and Steve Loomis arrived “between 10:30 and 11:00,” and that they stayed for approximately 15-20 minutes. (Id. at 343:4-13.) Vasquez also denied that he licked Ashlee’s vagina. (Id. at 343:23-25.)

Vasquez’s post-conviction hearing testimony conflicts in several instances with the version of events from July 23, 2000 that Ashlee and Steve Loomis provided at trial. On the other hand, Vasquez’s version of events is essentially the same version to which Karra Vasquez testified.

III. LAW AND ANALYSIS

A. AEDPA Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to Vasquez’s habeas Petition because he filed his Petition after the April 24, 1996 effective date of the statute. Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (relevant portions codified as amended at 28 U.S.C. § 2254 (2000)); Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998).

Federal courts examine a habeas petition filed by a prisoner in custody pursuant to a state court judgment as circumscribed by AEDPA, and specifically in this case under § 2254(d). Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to a 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....

Under the “contrary to” clause of § 2254(d)(1), a federal habeas court may grant the writ only if the state court decision was based on a conclusion of law opposite to that reached in Supreme Court precedent. Ramonez v. Berghuis, 490 F.3d 482, 486 (6th Cir.2007) (citing Dando v. Yukins, 461 F.3d 791, 796 (6th Cir.2006)). See also, Benge v. Johnson, 474 F.3d 236, 241 (6th Cir.2007) (“A state-court decision is considered ‘contrary to ... clearly established Federal law’ if it is ‘diametrically different, opposite in character or nature, or mutually opposed.’ ”) (iquoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quotation marks omitted)).

Under the “unreasonable application” clause, “a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Ramonez, 490 F.3d at 486 (alterations included in original) (citing Williams, 529 U.S. at 413, 120 S.Ct. 1495). To issue a writ on that ground, “the federal court must find the state court’s application of Supreme Court precedent ‘objectively unreasonable,’ not merely ‘incorrect or erroneous.’ ” Id. (citing Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527,156 L.Ed.2d 471 (2003)). The federal habeas court must also presume that state court factual determinations are correct, unless the petitioner can demonstrate any state court error by clear and convincing evidence. Id.

The right to counsel guaranteed by the Sixth Amendment is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) represents clearly established federal law as determined by the United States Supreme Court and applies to a habeas petitioner’s claims of ineffective assistance of counsel. See Williams, 529 U.S. at 390, 120 S.Ct. 1495. Vasquez seeks federal habeas relief from his state court conviction. Thus, in order for Vasquez to be entitled to habeas relief under AEDPA, he must show that the Ohio Court of Appeals reached a decision that was contrary to, or unreasonably applied, the Strickland standard as to trial counsel’s performance and in determining whether there was any prejudice to Vasquez’s defense. See, e.g., Smith v. Lafler, 175 Fed.Appx. 1, 4 (6th Cir.2006).

Under Strickland, an ineffective assistance of counsel claim has two elements; to prevail, a petitioner must establish that both (1) the defense counsel’s performance was constitutionally deficient, and (2) the deficient performance prejudiced the defense sufficiently to undermine the reliability of the trial. Ramonez, 490 F.3d at 486 0citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

The first Strickland element — the so-called “performance” element — requires Vasquez to “show that counsel’s representation fell below an objective standard of reasonableness.” Id. (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). The Court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, [a petitioner] must overcome the presumption that, under the circumstances, the challenged conduct might be considered sound strategy.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir.2005) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

The second Strickland element— the so-called “prejudice” element — requires that a habeas petitioner demonstrate “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.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” Ramonez, 490 F.3d at 487 (quoting Combs v. Coyle, 205 F.3d 269, 278 (6th Cir.2000)); see also, Towns, 395 F.3d at 258 (citing Combs, 205 F.3d at 278). Thus, these findings “are not findings of historical facts that are subject to the § 2254(e)(1) presumption of correctness for state court factual findings.” Ramonez, 490 F.3d at 487 (quoting McGhee v. Yukins, 229 F.3d 506, 513 (6th Cir.2000)).

B. Vasquez’s Grounds For Relief

Vasquez presents four grounds for relief, all of which argue that Attorney Donald Butler rendered constitutionally ineffective counsel. (ECF No. 1.) As recounted above, the Court has already found ground (3) to be procedurally defaulted. Additionally, the Court finds that ground (4) is also procedurally defaulted. The claim was raised on direct review and again on post-conviction relief, but was not initially brought before the highest court of the state on direct review. After Vasquez filed a motion for leave to file a delayed appeal in the Ohio Supreme Court, that court denied the motion. The Sixth Circuit has found that the denial of a motion for leave to file a delayed appeal by the Ohio Supreme Court constitutes a procedural ruling sufficient to bar review in this Court. Bonilla v. Hurley, 370 F.3d 494 (6th Cir.2004); Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 431-32 (6th Cir.2006). The Ohio Supreme Court denied Vasquez’s motion for leave to file a delayed appeal on ground (4), and thus ground (4) is also procedurally defaulted.

Grounds (1) and (2), however, are exhausted, not procedurally defaulted, and are ripe for review by the Court.

1. The State Court’s Conclusions Were An Unreasonable Application of Strickland

Vasquez alleges in his first and second grounds for relief that he received ineffective assistance of counsel when Butler failed to adequately meet and discuss the charges, only met with Vasquez three times in sessions of 15-20 minutes each, and failed to adequately investigate the ease and interview potential witnesses. (ECF No. 1 at ¶¶ 12(A)-(B).) The state appeals court reviewed the testimony from the post-conviction hearing, and affirmed the trial court’s denial of post-conviction relief. (ECF No. 31-53, Ex. 30. See also State v. Vasquez, 2004 Ohio 53, *P23 (Ohio Ct.App. Jan. 8, 2004).)

The Court finds that the state court application of Strickland in this case was objectively unreasonable. The state appeals court’s findings — that Butler did prepare for trial, that he could not be expected to subpoena uncooperative family members, and that none of the witnesses who testified at the post-conviction hearing would have changed the outcome of the trial — are so contrary to the evidence adduced during the post-conviction hearing that they are an unreasonable application of Strickland. The Court is mindful that § 2254(e)(1) presumption of correctness applies to the findings of fact about Butler’s credibility, especially because the findings were made following a three-day post-conviction hearing. Nevertheless, the Court finds that Vasquez has met his burden. Sadly, in this case his appointed counsel did almost nothing before or during trial, in a situation where the prosecution’s case was weak and Vasquez faced life imprisonment.

a. The Performance Element: Counsel’s Performance Was Deficient Because He Failed to Reasonably Investigate the Case

It is well-established that ‘“counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” Towns, 395 F.3d at 258 (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052). The duty to investigate derives from counsel’s basic function, which is “to make the adversarial testing process work in the particular case.” Id. (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (in turn quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052)). “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (emphasis added). Strategic choices made after less than complete investigation are reasonable “precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. 2052. “In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. Failing to conduct pretrial discovery does not excuse this duty, even if counsel’s performance at trial is “generally creditable.” Smith v. Lafler, 175 Fed.Appx. at *4 (quoting Kimmelman, 477 U.S. at 386, 106 S.Ct. 2574 (in turn quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052)).

Furthermore, “in any effectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 691, 104 S.Ct. 2052. “The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Critically, the Supreme Court’s central teaching of Strickland, as reaffirmed by Wiggins, 539 U.S. at 522-23, 123 S.Ct. 2527, is that “the 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.” Ramonez, 490 F.3d at 488 (emphasis added). A “purportedly strategic decision is not objectively reasonable when the attorney has failed to investigate his options and make a reasonable choice between them.” Id. (quoting Towns, 395 F.3d at 258 (internal citations omitted)). Finally, the Sixth Circuit’s Toums opinion “dispels any doubt that a lawyer’s Strickland duty ‘includes the obligation to investigate all witnesses who may have information concerning his or her chent’s guilt or innocence.’ ” Ramonez, 490 F.3d at 487 (quoting Toums, 395 F.3d at 258) (emphasis added).

Here, Butler’s performance as a whole was deficient. Butler testified at the post-conviction hearing that he did not present any witnesses at trial based on his professional judgments. But even crediting Butler’s assertion that his reasoned professional judgment underlay his trial strategies, the fact still remains that his strategies rested upon a “rotten foundation.” Butler simply failed in his duty to conduct an objectively reasonable investigation on which to base his conclusions about trial strategy, given the weakness of the state’s case and the tremendously high stakes his client faced.

1. Witnesses Not Interviewed:

Butler contended that his incomplete investigation was due to non-cooperation from Vasquez’s family members. Yet a single phone call to the mother-in-law of a defendant is hardly a solid foundation upon which to make the “strategic” choice to call nary a defense witness, as was the case here. As even Butler’s testimony demonstrates, the single teleph