"A defense counsel has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant." Millender, 187 F. Supp.2d at 877, citing Marra v. Larkins, 111 F. Supp.2d 575, 585 n. 13 (E.D. Pa. 2000). Therefore, on these facts, the failure to call a rebuttal witness does not amount to constitutionally defective assistance of counsel sufficient to even reach the Strickland prejudice inquiry. For this reason, we affirm the district court on this issue.
But "[a] defense counsel has no obligation to ... interview a witness whose testimony would not have exculpated the defendant." Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (quoting Millender v. Adams, 187 F. Supp.2d 852, 877 (E.D. Mich. 2002)) (citing Marra v. Larkins, 111 F. Supp. 2d 575, 585 n. 13 (E.D. Pa. 2000)). When the Court examines the facts of this case, it becomes clear that Roberts' claim in this regard is without merit.
"'A defense counsel has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant.'" Millender v. Adams, 376 F.3d. 520, 527 (6th Cir. 2004) (quoting Millender v. Adams, 187 F. Supp.2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F. Supp. 2d 575, 585 n.13 (E.D. Pa. 2000)). Petitioner alleges that trial counsel should have investigated Devae Sanders, Felicia Sanders, Crystal Wilkes, Derrick Montgomery, Robert Harris, Vittorio Edwards, Cedric Allen, "Kim," and certain unidentified neighbors.
But "[a] defense counsel has no obligation to . . . interview a witness whose testimony would not have exculpated the defendant." Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (quoting Millender v. Adams, 187 F. Supp.2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F. Supp. 2d 575, 585 n. 13 (E.D. Pa. 2000)). As explained above, the facts did not support a defense of manslaughter.
"'A defense counsel has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant.'" Millender v. Adams, 376 F.3d. 520, 527 (6th Cir. 2004) (quoting Millender v. Adams, 187 F. Supp.2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F. Supp. 2d 575, 585 n. 13 (E.D. Pa. 2000)). 3. Application
But "[a] defense counsel has no obligation to . . . interview a witness whose testimony would not have exculpated the defendant." Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (quoting Millender v. Adams, 187 F. Supp. 2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F. Supp. 2d 575, 585 n.13 (E.D. Pa. 2000)). a. Failure to Question the Search
But "[a] defense counsel has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant." Millender v. Adams, 376 F.3d. 520, 527 (6th Cir. 2004) (quoting Millender v. Adams, 187 F. Supp.2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F. Supp. 2d 575, 585 n. 13 (E.D. Pa. 2000)). Petitioner was not charged with a traffic violation or with leaving the scene of the accident, and he was arrested about a quarter of a mile from where the collision occurred.
"Complaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative." Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citation omitted); Marra v. Larkins, 111 F. Supp. 2d 575, 586 n. 14 (E.D.Pa. 2000) (same); see also Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir.2008) ("the decision of which witnesses to call is quintessentially a matter of strategy for the trial attorney"). "Thus, to prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense."
"A defense counsel has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant." Millender, 376 F.3d. at 527 (quoting Millender v. Adams, 187 F. Supp.2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F. Supp. 2d 575, 585 n. 13 (E.D. Pa. 2000)). ii.
"A defense counsel has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant." Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (quoting Millender v. Adams, 187 F. Supp. 2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F. Supp. 2d 575, 585 n. 13 (E.D. Pa. 2000)).