Foster v. Wolfenbarger, No. 10-2023 (6th Cir. 2012)
Annotate this CaseFoster was convicted of second-degree murder in connection with a shooting death. After trial, the Michigan trial court conducted a Ginther hearing and concluded that Foster’s trial counsel was ineffective for failing to raise an alibi defense, stemming primarily from the testimony of a witness who said that Foster was with him at the time of the killing. The Michigan Court of Appeals, however, concluded that the failure to raise the alibi defense was an exercise of sound trial strategy by Foster’s trial counsel. On habeas review, the district court held that Foster’s trial attorney was deficient for failing to raise the alibi defense, but that the deficiency did not prejudice Foster. The Sixth Circuit affirmed with respect to the deficient performance finding, but reversed with respect to the prejudice determination, and granted a conditional writ of habeas corpus giving the state 180 days to retry Foster or to release him. The relative weakness in the state's case and strength of the potential alibi defense created a reasonable probability that, but for counsel's errors, the result would have been different.
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