Where a state court does not evaluate the merits of a petitioner's federal claim, the deferential standard of review mandated by the AEDPA does not apply. As this court has previously explained:

[The AEDPA] by its own terms is applicable only to habeas claims that were adjudicated on the merits in State court. . . . Where . . . the state court did not assess the merits of a claim properly raised in a habeas petition, the deference due under AEDPA does not apply. Instead, this court reviews questions of law and mixed questions of law and fact de novo.

Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003) (internal quotation marks and citations omitted); see also Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (reasoning that because no state court had reached the prejudice prong of the Strickland analysis, the Supreme Court's review of that issue was not circumscribed by a state court's conclusion with respect to that issue).

In his brief before the state appellate court, Higgins argued his ineffective assistance claim as follows:

The record reveals, clearly, that the trial counsel was deficient in his representation of Mr. Higgins. The key witness, Mr. Young, was the person who made the identification of Mr. Higgins as the shooter. Mr. Young had kept himself in hiding through the first days of the trial. Mr. Young had admitted to the initial plan to trick Mr. Ramsey and get his guns through the scam. Trial counsel refused to cross-examine Mr. Young, due to his counsel's apprehension that to do so would constitute malpractice, as he was admittedly unprepared (TT, vol.IV, p. 57). The reason for the failure to cross-examine was, thus, placed into the record. Even without counsel's express admission, it would be obvious that there could be no reasonable excuse or rationale or sound trial strategy for a failure to cross-examine the prosecution's key witness.

. . . .

. . . The failure to effectively cross-examine Mr. Young was a failure of the right to effective counsel; counsel failed to utilize the power of cross-examination when it counted: with the key witness. Instead, the jury was left with essentially unrebutted, and untested, testimony that Mr. Higgins had the gun and shot the victim. The evidence of Mr. Higgins's guilt was not overwhelming, and consisted of the testimony of Mr. Young; the prejudice to this defendant is obvious.

Supp. J.A. at 135-37.

Addressing this claim, without specifically citing any federal law, the state court of appeals set out the Supreme Court's Strickland test for ineffective assistance of counsel. Under Strickland, a defendant must establish both that his counsel's performance at sentencing was seriously deficient and also that he suffered prejudice as a result of such deficiency. Strickland, 466 U.S. at 687, 104 S. Ct. 2052. Without discussion, the state appellate court made a determination, albeit conclusory, that Higgins suffered no prejudice as a result of his attorney's failure to cross-examine Young. This court must, accordingly, review the state court's prejudice determination under the AEDPA's deferential standard. Because the state court did not address the performance prong of the Strickland test, this court considers de novo whether counsel's performance was seriously deficient.3

When complaining of his counsel's deficient performance, a convicted defendant must show that counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S. Ct. 2052. A reviewing court must judge the reasonableness of counsel's actions on the facts of the defendant's case, viewed from counsel's perspective at the time, recognizing that "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. 2052. In essence, a defendant has the burden of proving, by a preponderance of the evidence, that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. 2052.

"Because advocacy is an art and not a science, . . . [counsel's] strategic choices must be respected" if they were "made after thorough investigation of law and facts relevant to plausible options." Id. at 681, 690, 104 S. Ct. 2052. Such choices can vary greatly from attorney to attorney and from case to case, and reviewing courts must scrutinize these choices with a great deal of deference. Indeed, such strategic choices are virtually unchallengeable. Id. As explained by the Supreme Court:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Id. at 689, 104 S. Ct. 2052 (internal quotation marks and citations omitted). Thus, counsel cannot be adjudged ineffective for performing in a particular way in a case, as long as the approach taken "might be considered sound trial strategy." Id.

In this case, Higgins contends that his trial counsel's failure to confront and cross-examine Young, the sole eyewitness to—and possible perpetrator of—the murder of Ramsey, had no tactical justification and, instead, amounted to constitutionally deficient performance. The district court agreed with this contention, explaining:

The record in this case . . . leaves no doubt about the reason for attorney Pookrum's failure to cross-examine the key prosecution witness in this case. He candidly admitted that he was not prepared to go forward, and when his request for more preparation time was denied, he blithely forfeited his client's right to confront Wayne Young and subject his direct testimony to cross-examination, "the greatest legal engine ever invented for the discovery of truth." California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (quoting Wigmore, Evidence 1367). Finding that this decision on Pookrum's part was unreasonable creates no danger of trenching upon sound trial strategy after the fact, nor does it implicate the injunction that "an ineffective-assistance-of-counsel claim cannot survive so long as the decisions of a defendant's trial counsel were reasonable, even if mistaken." Campbell v. Coyle, 260 F.3d 531, 551 (6th Cir.2001). The failure of counsel to participate in a critical phase of the trial, and to subject the State's case to meaningful adversarial testing, on the sole ground of lack of preparation, "was not a reasonable strategic decision entitled to deference." Moss [v. Hofbauer, 286 F.3d 851, 864 (6th Cir. 2002)] (finding that defense counsel's reliance on the cross-examination of an eyewitness by a co-defendant unreasonable when the two defendants' interests were not aligned). The Court finds, therefore, that the petitioner's trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms.

Higgins v. Renico, 362 F. Supp. 2d 904, 916-17 (E.D.Mich.2005).

A number of courts, including this one, have found deficient performance where, as here, counsel failed to challenge the credibility of the prosecution's key witness. See, e.g., Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir.2001) (finding ineffective assistance of counsel where, among other things, counsel's "failure to investigate prevented an effective challenge to the credibility of the prosecution's only eyewitness"); Berryman v. Morton, 100 F.3d 1089, 1099 (3d Cir.1996) (finding deficient performance where counsel failed to raise the victim's prior inconsistent identification testimony, given that "[t]he reliability of this victim's uncorroborated identification of [the defendant] cut[] directly to the heart of the only evidence against [the defendant]"); Tomlin v. Myers, 30 F.3d 1235, 1238 (9th Cir.1994) (finding deficient performance where counsel failed to challenge an eyewitness's in-court identification in a case that "hinge[d] on an eyewitness's testimony"); Nixon v. Newsome, 888 F.2d 112, 115 (11th Cir.1989) (finding deficient performance where counsel failed to confront the prosecution's star witness with inconsistent statements, thus "sacrific[ing] an opportunity to weaken the star witness's inculpatory testimony"); Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir.1987) (finding deficient performance where counsel failed to impeach an eyewitness with previous inconsistent identification testimony when "weakening [the witness's] testimony was the only plausible hope [the defendant] had for acquittal").

During arguments before this court, counsel for Renico suggested that Pookrum, an experienced attorney, chose not to cross-examine Young for tactical reasons, those reasons being that (1) Pookrum knew that Young had already said everything there was to say; and (2) Pookrum could see the handwriting on the wall, namely, that he was not going to prevail in the case. We find such explanation for Pookrum's conduct too implausible to accept. Indeed, we agree with the district court that there simply was no conceivable, tactical justification for Pookrum's failure to cross-examine the key witness in the case against Higgins. The district court correctly stressed that Young was not only the sole witness that directly implicated Higgins as the shooter, but he was also "a suspect whose interest in avoiding criminal culpability was tied firmly to convincing the police and the jury that Higgins—and not Young himself—shot Ramsey." Higgins, 362 F.Supp.2d at 918. Given the gun powder found on Young's hands, given the inconsistencies in Young's prior statements, given Young's slip-of-tongue during direct examination, and given Young's self-interest in the outcome of the case, Pookrum had plenty of ammunition with which to impeach Young's testimony. The need for such impeachment was compelling. Pookrum's decision to forego the opportunity to damage the credibility of the prosecution's only eyewitness to the crime amounted to a significant dereliction of duty. Under Strickland, Pookrum's performance was clearly deficient.

Even where counsel's performance is deficient, a petitioner is not entitled to habeas relief unless he also demonstrates ensuing prejudice. In evaluating the prejudice suffered by a defendant as a result of his counsel's deficient performance, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693, 104 S. Ct. 2052. Indeed, "[v]irtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." Id. (citation omitted). Rather, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Although the defendant need not prove that counsel's deficient conduct more likely than not affected the verdict, the defendant must show that "absent his counsel's error, the courts of appeal would have reasonable doubt with respect to his guilt." Moore v. Carlton, 74 F.3d 689, 693 (6th Cir.1996). "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Strickland, 466 U.S. at 696, 104 S. Ct. 2052. In this vein, the court must determine whether "the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id.; see also Kinnard v. United States, 313 F.3d 933, 935 (6th Cir.2002) (explaining that, when analyzing whether a defendant was prejudiced by his attorney's performance, "it is necessary to determine if the proceeding was fundamentally unfair or unreliable; a court should not focus the analysis on the outcome") (citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993)).

Whether an error actually prejudiced a defendant is weighed against the "totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695, 104 S. Ct. 2052. A verdict "only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696, 104 S. Ct. 2052; see also Odem v. Hopkins, 382 F.3d 846, 851-52 (8th Cir.2004) (holding that prejudice was not shown where there was overwhelming evidence of guilt); United States v. Bavers, 787 F.2d 1022, 1030 (6th Cir. 1985) (finding no prejudice where there was overwhelming proof of the defendant's guilt).

Here, without Young's testimony, the State's case against Higgins was far from overwhelming. As the only eyewitness to events surrounding the murder, Young was the key to the State's case; yet Pookrum, who had the weapons to discredit Young, allowed Young's testimony to go unchallenged. Had the jury thought Young a liar and possibly himself the murderer, the jury may well have had reasonable doubt as to Higgins's guilt.

In our adversarial system of justice, a defendant's right to cross-examination is an essential safeguard of fact-finding accuracy. It is "the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). In this case, a case largely dependent on the testimony of one key witness, Higgins's right to that essential safeguard was denied by the hasty action of a lawyer who admitted that he was unprepared. That key witness was the lone eyewitness to the crimes charged. He was also a man who gave inconsistent stories to the authorities before trial; who was found with gun powder residue on his hands, yet denied both that he was in the car when shots were fired and that he himself shot a gun the day of the murder; who initially responded to the prosecutor's question about the murder weapon with "I pulled," then changed his response to "he pulled" out the .45; and who himself was a possible perpetrator of the crime. Given the importance of the star witness's testimony, it is not difficult to imagine that the outcome of the trial was "unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland, 466 U.S. at 696, 104 S. Ct. 2052.

Renico maintains that the state appellate court rejected Higgins's ineffective assistance claim based on Higgins's failure to present the court with a well-developed argument regarding prejudice. As stated by Renico:

Higgins's appeal claimed only that "prejudice to this defendant is obvious." Higgins failed to show the State court how he "would probably have won" if counsel had elected to cross-examine Wayne Young and the State court denied his claim on that basis. . . .

. . . Although Higgins made a general ineffective assistance of counsel claim, he did not base the claim on [] specific attorney errors.

Appellant's Br. at 19-20 (citations and footnote omitted) (emphasis in original). Renico urges this Court to defer to the state court's finding of no prejudice, based on the skeletal argument made by Higgins before that court.4

To be sure, it is the defendant's burden to "affirmatively prove prejudice." Strickland, 466 U.S. at 693, 104 S. Ct. 2052. We are persuaded, however, that Higgins met such a burden before the state appellate court. Contrary to Renico's contention, Higgins was not required to demonstrate how he "would probably have won." He simply needed to present the factual basis for his contention that confidence in the outcome of his case was undermined by his counsel's deficient performance. Higgins did just that.

Higgins identified for the state appellate court the one critical error made by his attorney, and he identified some—albeit few—record facts to support his claim of prejudice. Specifically, he stated that his attorney failed to cross-examine the "key witness, Mr. Young, [] the person who made the identification of [M]r. Higgins as the shooter." Supp. J.A. at 135. Higgins went on to state that, by failing to cross-examine Young, his attorney left the jury "with essentially unrebutted, and untested, testimony that Mr. Higgins had the gun and shot the victim." Id. at 137. He pointed out that "[t]he evidence of Mr. Higgins' guilt was not overwhelming, and consisted of the testimony of Mr. Young;" and he argued that his "[c]ounsel `dropped the ball' when it really mattered," id., in effect providing Higgins with no defense at all. Higgins concluded his argument with the statement: "[T]he prejudice to this defendant is obvious." Id.; see Berryman, 100 F.3d at 1102 (finding prejudice to the defendant "obvious" where defense counsel failed to cross-examine an identification witness whose inconsistent identification testimony from previous trials could have raised questions in the minds of the jurors regarding the witness's credibility and/or ability to identify the defendant).

While Higgins presented his Strickland claim to the state appellate court in a skeletal manner, we think his presentation was sufficient to place the issue of prejudice squarely before that court. The state court nonetheless rejected Higgins's claim without discussion. As noted by the district court: "The State court of appeals' discussion of the prejudice prong of the Strickland test was truncated; that court simply stated that the petitioner failed to show prejudice." J.A. at 289. We assume, as did the district court, that the state court rejected—albeit in conclusory fashion—Higgins's prejudice claim on the merits. Like the district court, we think this rejection represents an "unreasonable application" of clearly established Supreme Court precedent. The state court may have correctly identified the governing legal principle from the Supreme Court's Strickland decision, but it unreasonably applied that principle to the facts of Higgins's case. Higgins is therefore entitled to conditional habeas relief.

For the reasons set out above, the district court's order and judgment are AFFIRMED.