Argued: May 4, 2017
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:04-cv-71155-Victoria
A. Roberts, District Judge.
Matthew R. Cushing, JONES DAY, Columbus, Ohio, for Appellant.
I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
Matthew R. Cushing, Chad A. Readler, Danielle L. Scoliere,
JONES DAY, Columbus, Ohio, for Appellant.
I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
Before: DAUGHTREY, MOORE, and KETHLEDGE, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
Mae Tanner, who was convicted of murder in 2000, argues that
the district court erred by denying habeas relief on two
grounds. First, Tanner argues that the Michigan Supreme Court
unreasonably applied Ake v. Oklahoma, 470 U.S. 68
(1985), when it held that the trial court properly denied
Tanner's trial counsel funding for a serology or DNA
expert, and that the district court erred by upholding the
Michigan Supreme Court's application of Ake.
Second, Tanner argues that the Michigan Supreme Court
unreasonably applied Jackson v. Virginia, 443 U.S.
307 (1979), when it held that there was sufficient evidence
to convict Tanner, and that the district court erred by
upholding the Michigan Supreme Court's application of
Jackson. We agree with Tanner that she was convicted
based on insufficient evidence and that the Michigan Supreme
Court unreasonably applied Jackson. We
REVERSE the district court's judgment
denying habeas relief on Tanner's Jackson claim.
Because we hold that Tanner is entitled to habeas relief on
the ground that the Michigan Supreme Court unreasonably
applied Jackson, we do not address whether the
Michigan Supreme Court also unreasonably applied
The Crime Scene
Watson, a bartender at Barney's Bar and Grill, was
stabbed to death in the basement of Barney's sometime
after 1:00 a.m. on March 22, 1995. People v. Tanner,
660 N.W.2d 746, 751 (Mich. Ct. App. 2003). Watson's
murder appears to have happened during the course of a
boyfriend, Jerry Dockum, testified that at around 1:30 a.m.
on March 22, Watson called him to tell him that she was
closing the bar early. Id. at 752. When Watson was
not home by 2:00 a.m., Dockum grew concerned and called the
bar. Id. No one answered. Id. Dockum
contacted Watson's sister, Gloria Loring, who eventually
went to Barney's accompanied by Maria Coller, a former
Barney's employee who had keys, and Maria Coller's
husband, Ron Coller. Id. at 753. Loring and the
Collers arrived at Barney's around 5:30 a.m. Id.
When they arrived, the lights were on, the television was
blaring, the outside doors were locked, and Watson's car
was in the parking lot behind the bar. Id. A pack of
Budweiser was on the floor near the side door with a napkin
on top of it. Id. A note for a takeout order of beer
was on the cash register behind the bar. Watson's coat
was on the back of a chair, and Watson's purse was on the
back of the bar. Id. There was a knife behind the
after arriving, the Collers called 911 and Barney's
owners. After Mr. Coller opened the door to the basement and
observed loose cash at the bottom of the stairs, Mrs. Coller
called 911 a second time. When they noticed that the door to
the basement office was closed, Mrs. Coller called 911 a
third time. Id. After one of Barney's owners,
Tom Bliler, arrived, they opened the door to the basement
office. Id. They found Watson's body in the
basement. Id. Bliler estimated that $1, 009 had been
stolen from the safe, suggesting robbery. Id.
Michael VanStratton, who at the time was the crime lab
supervisor of the Battle Creek Police Department, arrived at
the scene. He testified that Watson had blood stains smeared
across her body, an excessive amount of blood on her neck and
chest, and stab wounds to her chest. Id. at 753-54.
Because of the disarray in the office and the wounds to
Watson's arms, VanStratton concluded that there had been
a struggle. Id. Crime-scene technicians found
"diluted bloodstains on the stainless steel sink area
directly behind the bar." Id. In addition to
the items the Collers had already noticed-namely, the six
pack of beer with the napkin on it, the note about the
take-out beer order, the knife, and Watson's
purse-technicians also found two drinking glasses and a cash
register receipt. Id. In the basement, technicians
found a bloodstain on the wall at the bottom of the stairs.
Id. at 754.
had originally arrived at Barney's around 7:00 a.m.
without the necessary equipment to process the crime scene.
Id. at 753. VanStratton testified that when he
returned to Barney's with the necessary equipment around
8:00 a.m., "'some of the areas which [he] thought
might be critical for investigation'"-including the
area behind the bar-"'had already been occupied by
people that came in that morning.'" Id.
There were about seven non-law-enforcement people in
Barney's, including Watson's friends and Barney's
employees. Id. at 754. People were making coffee
behind the bar and were in the area where the bloodstains,
knife, and takeout beer were found. Id.
"Detective VanStratton testified that because 'there
was some important evidence behind the bar, ' it was the
first area that was isolated, " although people had
gathered and made coffee in that area earlier in the morning,
before law enforcement isolated it. Id. at 753-54.
David Walters of the Battle Creek Police Department focused
the investigation on Tanner, Dion Paav, and Robert Cady.
Id. at 751, 755. On May 24, 1995, Walters
interrogated Tanner and made an audio recording of the
interrogation. Id. at 755. According to
Walters's trial testimony, Walters showed Tanner a
photograph of the knife recovered from the crime scene.
Walters testified that Tanner said the knife was hers and
that she recognized it by the alteration she had made to the
blade for cleaning crack pipes. Id. On
cross-examination, Walters acknowledged that the transcript
of the audio recording shows Tanner saying that the knife was
not hers. Id. at 757. Walters conceded that
Tanner's answers to many questions were inaudible in the
recording. Id. Walters also testified that although
the thirty-two page transcript included 261 instances where
Tanner's response is transcribed as
"inaudible" Walters did not send the tape to the
Michigan State Police Crime Laboratory to enhance the sound
testified that he interviewed Tanner about Watson's
murder again on June 7, 1995. Id. at 756. This
interview took place in a police car, with Detective David
Adams also present. Id. According to Walters, during
this interview Tanner admitted to accompanying Cady to
Barney's around the time of Watson's murder.
Id. Walters testified that Tanner said she stayed in
the car while Cady went inside, and that after she and Cady
left Barney's, they bought beer, cashed a check, and
purchased crack. Id. Walters testified that he asked
Tanner whether she was responsible for killing Watson, and
she shook her head no. Id. Walters testified that he
asked what circumstances might have led her to commit that
sort of murder, Tanner responded that she might have done so
"'if that bitch had treated her bad.'"
Id. There is no audio recording of this interview,
and Detective Adams, who was also in the police car during
the interview, did not testify.
also testified at trial, and characterized her answers about
the knife differently than Walters did. Id. at 760.
Tanner testified that she told Walters that the knife in the
photo looked like a knife she used to have but was not her
knife. Id. She testified that she told Walters it
could not be hers because it was a straight-bladed knife and
her knife was a folding knife. Id.
a friend of Watson, Catherine Huskins, testified that Watson
had found a nonfolding knife before she was murdered.
Id. Watson told Huskins's husband that she was
going to keep the nonfolding knife in her purse. Id.
Huskins never saw the knife that Watson apparently carried in
her purse; she only heard about it from Watson. Id.
to Cady's trial testimony, on March 21, 1995 he got off
work at approximately 10:55 p.m. Id. at 751. He had
planned to meet Paav after work, but could not reach him.
Id. After midnight on March 22, Cady called Tanner,
drove to her house, and went with her to purchase crack
cocaine. Cady and Tanner returned to Tanner's house and
smoked the crack. Id. Approximately a half hour
later, Cady left, without Tanner, to cash a check at
Barney's. Id. He arrived at Barney's around
1:00 a.m. Id. Barney's appeared to be closed,
but Cady entered through the open side door. Id. at
751-52. Watson was at the bar working, and there was a white
male who Cady did not recognize in the bar. Id.
Watson told Cady that she could not cash his check because
she had already closed out her cash register. Id. at
752. Cady indicated that Watson would close out her cash
register with customers in the bar only if they were trusted
regular customers, and that Watson would close out her cash
register with Cady in the bar. Id. at 752-53.
then went to Green's Tavern, where he was able to cash
the check. Id. at 752. He also had a beer while at
Green's Tavern. Id. At around 1:30 a.m., Cady
called Tanner to tell her he was going to return to her
house. Id. Cady went to buy more crack and then
returned to Tanner's house, arriving around 2:30 a.m.
Id. He drove home around 2:45 a.m. Id. On
his way home, he passed by Barney's and noticed that the
lights were on. Id. He found it unusual for
Barney's light to be on at that time, but he continued
driving home without stopping. Id.
trial testimony about the night of March 21 mirrored
Cady's. Id. at 760. She testified that Cady came
to her house where they smoked crack together and then he
left to go cash a check. Id. She testified that he
returned to her house after cashing the check and then left
again around 2:30 or 3:00 a.m. Id. She testified
that she did not go anywhere with Cady except to purchase
crack around 12:00 a.m. Id. She specifically said
she did not go to Barney's. Id.
witnesses also corroborated aspects of Cady's and
Tanner's accounts of that night. Tanner's mother
testified that Cady was at her house when she woke up in the
morning, and that neither Cady nor Tanner had any blood on
them. Id. Todd Green testified that Cady did go to
Green's Tavern after midnight, where he cashed a check,
drank a beer, and made a telephone call. Id.
witnesses spotted a truck and unidentified individuals
outside of Barney's. Kevin Sage testified that he saw a
light-colored truck with a wooden cap at Barney's around
1:15 a.m. Sage said that the driver appeared to be a white
man with a beard, and that there was a passenger who Sage did
not get a good look at. Id. Nancy Chantrene
testified that at 2:47 a.m. she passed ...