Rogers v. Howes

• Decision Date: 26 May 1998
• Docket Number: No. 96-1862,96-1862
• Citation: 144 F.3d 990
• Parties: Fred Harry ROGERS, Petitioner-Appellant, v. Carol HOWES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 990

144 F.3d 990

Fred Harry ROGERS, Petitioner-Appellant, v. Carol HOWES, Respondent-Appellee.

No. 96-1862.

United States Court of Appeals,

Sixth Circuit.

Submitted Dec. 5, 1997.

Decided May 26, 1998.

Theodore E. Hughes (briefed), Office of the Attorney General, Habeas Corpus Division, Lansing, MI, Douglas P. Dwyer, Wayne County Prosecutor's Office, Detroit, MI, for Respondent-Appellee.

Fred Harry Rogers (briefed), Kincheloe, MI, Petitioner-Appellant Pro Se.

Before: BOGGS, MOORE, and FARRIS, ^* Circuit Judges.

MOORE, Circuit Judge.

We consider in this appeal whether the federal courts are procedurally barred from reviewing a habeas petition when the Michigan courts previously have held the petitioner's claims procedurally barred through retroactive application of MICHIGAN COURT RULE ("M.C.R.") 6.508(D)(3), which now prohibits the Michigan courts from granting relief to defendants who could have raised grounds for relief on direct appeal from a conviction and sentence or in a prior motion for relief from judgment absent a demonstration of cause and prejudice. Federal courts will not review a habeas petition when there exists an adequate and independent state procedural bar. Because we conclude that retroactive application of M.C.R. 6.508(D)(3) to defendants convicted prior to its enactment does not qualify as an adequate and independent state procedural bar, we reverse the district court's decision refusing to review petitioner's habeas petition.

I. FACTS AND PROCEDURAL HISTORY

A Michigan jury found the petitioner guilty of first-degree murder in 1965. The state trial court then sentenced him to life imprisonment without the possibility of parole. Although appellate counsel was appointed by the court to represent petitioner on appeal, petitioner failed to file an appeal as of right.

In 1989, 25 years after petitioner's conviction and sentence, Michigan enacted criminal procedural rules governing post-appeal relief. M.C.R. 6.500 et seq. ("Postappeal Relief"). M.C.R. 6.508(D) limits the conditions under which a defendant is entitled to relief from judgment once the defendant has exhausted his or her direct appeal. Specifically, Michigan courts may not grant relief to defendants when the grounds for relief "could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter," unless the defendant demonstrates good cause for his failure and actual prejudice. M.C.R. 6.508(D)(3). ¹

In 1991, almost three decades after his conviction and sentence, petitioner filed a motion for "relief from judgment" in the Michigan Circuit Court for the County of Wayne pursuant to M.C.R. 6.500 et seq. Although the petitioner labeled his request a "motion for relief from judgment," he merely sought the appointment of appellate counsel in order to perfect an appeal from his 1965 conviction, claiming he was denied an appeal of right. See Petitioner's 11/27/91 Mot. in Mich. Cir. Ct. The court denied petitioner's motion for appointment of counsel. See Petitioner's App. at A-28 (Mich. Cir. Ct. Op. and Order Den. Def.'s Mot. (2/3/92)). Petitioner did not appeal this decision. In 1992, petitioner filed in state court a second motion for relief from judgment, in which he asserted several new claims that are the subject of the habeas petition now before us on appeal. The state trial court denied petitioner's second motion, finding procedural default on the basis that petitioner failed to raise his claims on direct appeal and did not establish cause In 1994, petitioner filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of Michigan, claiming as constitutional error most of the same claims raised in his 1992 motion for relief from judgment. Although the magistrate judge recommended that respondent be ordered to answer the petition, see J.A. at 98-109 (Magistrate J. R & R), the district judge ruled that because the issues raised in the habeas petition were procedurally defaulted under Michigan law, it could not review petitioner's claims. See J.A. at 138-39 (Dist. Ct. Op. and Order). The district court also concluded that petitioner presented no evidence to support his claim of ineffective assistance of counsel. See J.A. at 139 (Dist. Ct. Op. and Order); see also Petitioner's App. at A-28-29 (Cir. Ct. for County of Wayne Op. and Order (finding that petitioner's appellate counsel withdrew with judicial permission after petitioner had discharged him)). Accordingly, the district court found that petitioner failed to show either cause for the default or likelihood of success on the merits, and dismissed petitioner's habeas petition. See J.A. at 139.

for his failure to do so. See Mich. Cir. Ct. Op. and Order Den. Def.'s Mot. 4/5/93. Both the Michigan Court of Appeals and the Michigan Supreme Court denied petitioner's delayed application for appeal because the petitioner did not establish entitlement to relief under M.C.R. 6.508(D). See J.A. at 203-04.

II. ANALYSIS

We have jurisdiction to review the dismissal of the habeas petition pursuant to 28 U.S.C. § 2253. Denial of petitioner's habeas petition is subject to de novo review. See Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.1994). District court findings of fact are reviewed for clear error. ² See id.

Petitioner challenges the constitutionality of his state conviction by seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. The federal courts will not review a habeas petition where the state prisoner has not first presented his claims to the state courts and exhausted all state court remedies available to him. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). When a habeas corpus petitioner was denied the opportunity to present his claims to the state courts because of procedural default, the federal courts will consider his habeas petition only under limited circumstances. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court explained that

[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Id. at 750, 111 S.Ct. 2546. For purposes of federal review in habeas cases, we may consider as an adequate and independent state procedural rule only a state procedural rule that was "firmly established and regularly followed by the time as of which it [was] to be applied," in this case during the time when petitioner had a right to a direct appeal. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quotation omitted); see also Warner v. United States, 975 F.2d 1207, 1213 (6th Cir.1992). Because M.C.R. 6.508(D)(3) was not enacted until 1989, long after the time for petitioner's appeal of right, we must first determine whether Michigan's prohibition against collateral attacks of a conviction based upon claims that could have been raised on direct appeal, as incorporated in M.C.R. 6.508(D)(3), was consistently and regularly The district court held that the state courts' rejection of petitioner's claims under M.C.R. 6.508(D)(3) constituted an adequate and independent state procedural bar because the substance of the rule was "firmly established" at the time of petitioner's conviction. See J.A. at 136, 138 (Dist. Ct. Op. and Order). The district court's holding relied primarily on its conclusion that Rule 803 of MICHIGAN GENERAL COURT RULES of 1963 established a procedural bar comparable to M.C.R. 6.508(D)(3). Rule 803.3 stated in pertinent part as follows:

followed at the time of petitioner's conviction, and if so whether it then constitutes an adequate and independent state procedural rule. ³

Delayed Appeal. After expiration of the period for timely appeal, the Court of Appeals may, in its discretion, grant leave to appeal from any order or judgment from which timely appeal would have been available either as of right or by leave, upon showing, supported by affidavit, that there is merit in the grounds for appeal and that the delay was not due to appellant's culpable negligence.

Rule 803, however, is not substantively the same as M.C.R. 6.508(D)(3). By its terms, Rule 803 limits the discretion of the Michigan Court of Appeals to hear delayed appeals, but says nothing about the discretion of trial courts to hear motions for new trials or relief from judgment. Moreover, a review of relevant rulemaking history reveals that the modern day successor to Rule 803 is M.C.R. 7.205(F) ("Late Appeal"), not M.C.R. 6.508(D)(3). See MICHIGAN COURT RULES of 1985 Rule 7.205 ("Application for Leave to Appeal") (1985 Staff Comment). Accordingly, we reject the district court's conclusion that Rule 803 of MICHIGAN GENERAL COURT RULES of 1963 established a procedural bar comparable to M.C.R. 6.508(D)(3).

The district court also concluded that Michigan case law demonstrates "Michigan's long established resistance to delayed petitions for post-conviction relief." J.A. at 137 (Dist. Ct. Op. and Order). The district court relied on the admonition of the Michigan Supreme Court in People v. Barrows, 358 Mich. 267, 99 N.W.2d 347 (1959), that Michigan "courts do not look with favor on long-delayed motions for new trials." Id. at 350. Despite this statement, the supreme court in Barrows held that the trial judge should have granted the defendant's delayed motion Our review of Michigan case law leads us to conclude that the substance of M.C.R. 6.508(D)(3) was not a firmly established and regularly followed procedural rule prior to its adoption. In 1959, the Michigan Supreme Court stated that although "courts do not look with favor on long-delayed motions for new trials[,] ... [s]...