395 F.3d 602 (6th Cir. 2005), 03-1894, Whiting v. Burt

Docket Nº:03-1894.
Citation:395 F.3d 602
Party Name:Maurice WHITING, Petitioner-Appellee, v. Sherry BURT, Warden, Respondent-Appellant.
Case Date:January 19, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 602

395 F.3d 602 (6th Cir. 2005)

Maurice WHITING, Petitioner-Appellee,

v.

Sherry BURT, Warden, Respondent-Appellant.

No. 03-1894.

United States Court of Appeals, Sixth Circuit

January 19, 2005

Argued: June 9, 2004

Rehearing En Banc Denied Mar. 15, 2005.

Page 603

[Copyrighted Material Omitted]

Page 604

ARGUED :

Debra M. Gagliardi, Office of the Attorney General, Lansing, Michigan, for Appellant.

James Sterling Lawrence, Detroit, Michigan, for Appellee.

ON BRIEF :

Raina I. Korbakis, Office of the Attorney General, Lansing, Michigan, for Appellant.

Before: MARTIN and SUTTON, Circuit Judges; HOLSCHUH, District Judge. [*]

OPINION

HOLSCHUH, District Judge.

The District Court, pursuant to 28 U.S.C. § 2254, conditionally granted the Petition for a writ of habeas corpus of Maurice D. Whiting ("Petitioner" or "Defendant"), an inmate of the State Prison of Southern Michigan, the condition being that the State grant Petitioner a new appeal in the Michigan Court of Appeals and, if not done within the time specified by the District Court, Petitioner could apply for a writ ordering Sherry Burt, the warden of the prison ("Respondent") to release him. Respondent appealed, and the District Court denied Respondent's motion for a stay pending the appeal. Another panel of this Court granted Respondent's motion for a stay pending the appeal and the parties' request for oral argument. For the reasons stated herein, we vacate the judgment of the District Court and remand the case for further proceedings.

The issues presented by this appeal require a detailed history of the proceedings in the Michigan state courts and the subsequent proceeding in the federal district court.

I. THE MICHIGAN STATE COURTS

A. The Michigan Trial Court

During his trial in the Detroit Recorder's Court 1 on charges of first-degree felony murder and armed robbery, Defendant was represented by a retained attorney, Lawrence E. Schultz. Upon being convicted of both charges in 1995, Defendant was sentenced to concurrent terms of life imprisonment. He appealed to the Michigan Court of Appeals in January 1996.

B. The Direct Appeal to the Michigan Court of Appeals

In his direct appeal, Defendant was again represented by Attorney Lawrence E. Schultz. Mr. Schultz asserted just two claims on Defendant's behalf: (1) the trial court erred in its determination concerning the voluntariness and admissibility of Defendant's statement to the police; and (2) Defendant's convictions and sentences for both felony murder and armed robbery violated the prohibitions against double jeopardy. The Court of Appeals affirmed the trial court's decision concerning the admissibility of Defendant's statement to

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the police and, accordingly, affirmed his conviction of felony murder. The Court of Appeals, however, agreed that the convictions of both felony murder and the underlying felony of armed robbery violated the federal and state prohibitions against double jeopardy. The Court of Appeals therefore vacated the conviction and sentence for the underlying felony of armed robbery.

C. The Delayed Appeal to the Michigan Supreme Court

In June 1997, Defendant filed a delayed application for leave to appeal to the Michigan Supreme Court. The leave to appeal was denied.

D. The Post-Appeal Proceedings in the Michigan Courts

1. The Michigan Rules of Court

Subchapter 6.500 of Chapter 6, Criminal Procedure, Michigan Rules of Court ("MCR"), entitled "Post Appeal Relief," establishes the procedure for post-appeal proceedings challenging criminal convictions. 2 The request for relief from judgment must set forth, in addition to other information, the grounds for the relief requested and, if the grounds for relief were not raised before, the reasons they were not raised. MCR 6.502(c) (12) and (14). The motion must be presented to the judge to whom the case was assigned at the time of the defendant's conviction. MCR 6.504(A). Appeals are by application to the Court of Appeals. MCR 6.509(A).

The critical rule governing the granting of relief is MCR 6.508. It provides, in pertinent part:

(D) Entitlement to Relief. The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion

* * * * * *

(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter unless the defendant demonstrates

(a) good cause for failure to raise such grounds on appeal or in the prior motion, and

(b) actual prejudice from the alleged irregularities that support the claim for relief. As used in this subrule, "actual prejudice" means that,

(i) in a conviction following a trial, but for the alleged error, the defendant would have had a reasonably likely chance of acquittal;

* * * * * *

(iii) in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of the outcome of the case....

MCR 6.508(D) (3). 3

2. The Michigan Trial Court

Defendant commenced his post-conviction collateral proceedings on March 31,

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1999, when he filed his motion for relief from judgment with the trial court. This time, Defendant was represented by a new attorney, Gerald M. Lorence. The following claims were made in support of the motion:

I. The trial court committed reversible error in failing to give a cautionary instruction sua sponte on the accomplice testimony of witness James Wright.

II. Prosecutor engaged in prosecutorial misconduct by vouching for the credibility of his own witness when he disclosed that one of the alleged co-perpetrators received a plea agreement with the understanding that he would offer truthful testimony at Defendant's trial.

III. The prosecutor denied the Defendant a fair trial in cross examining the Defendant when he made reference to the fact that the Defendant had been in jail along with others on a prior occasion.

IV. Defendant was denied effective assistance of counsel by virtue of his attorney's failure to request an accomplice instruction with respect to the testimony of witness James Wright who testified against the Defendant and had been given a plea agreement in exchange for his testimony, and by virtue of this attorney's failure to investigate and perfect a possible intoxication defense.

V. The trial court gave incomplete supplemental instructions to the jury by reinstructing them on the principal offenses without mentioning the lesser included offenses or the concept of aiding and abetting.

JA at 111-12.

In Defendant's motion for relief from judgment, he stated:

Under MCR 6.508(D) (3) (a), there is good cause for not having raised these issues in a previous appeal. Specifically, Defendant was denied effective assistance of appellate counsel who failed to raise these issues. Ineffective assistance of counsel constitutes good cause for a delayed appeal. (See Brief in Support). It is also significant to note that failure to object to the reinstructions, and the failure to request the undisputed accomplice instructions were due to ineffective assistance of counsel. Since the same attorney represented the Defendant at the appellate levels, it is not surprising that the issues concerning ineffective assistance of counsel were not raised at that time.

JA at 112.

In his brief in support of this motion, Defendant set forth his arguments with respect to each of the alleged grounds for relief. With reference to the alleged denial of the effective assistance of trial counsel, Defendant pointed out that Michigan courts had adopted the two-part requirement for proving ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See People v. Pickens, 446 Mich. 298, 521 N.W.2d 797 (1994) ; People v. Stammer, 179 Mich.App. 432, 446 N.W.2d 312 (1989); People v. Dalessandro, 165 Mich.App. 569, 419 N.W.2d 609 (1988). In Strickland, the Court held that in order to establish ineffective assistance of counsel, a defendant must prove that: (1) counsel's performance was deficient; and (2) such performance prejudiced the defense. See 466 U.S. at 687, 104 S.Ct. 2052.

On January 5, 2001, the trial court denied Defendant's motion for relief from judgment. The court said:

The Defendant has the burden of proof of establishing entitlement to the relief requested. Cause and prejudice must also be shown as to why the issues presented were not raised on one of the Defendant's prior appeals. Most importantly, it must be shown in a conviction

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following a trial, but for the alleged error the Defendant would have had a reasonably likely chance of acquittal. This burden has not been met. MCR 6.508.

Likewise it has not been shown that it would be manifestly unjust to allow the conviction to stand, nor has it been shown that any irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand. MCR 6.508.

JA at 145-46.

The court nevertheless proceeded to consider the merits of the five allegations of error. It found no error in failing to sua sponte give an accomplice testimony instruction, no prosecutorial misconduct in allegedly vouching for the credibility of a state's witness, no error in the instructions given to the jury, and no error in failing to object to a comment about the defendant being in custody, a fact already known to the jury. With regard to the remaining allegation of ineffective assistance of counsel, the court stated:

The Defendant has met neither prong of the test set forth in the landmark cases of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), People v. Pickens, 446 Mich. 298, 521 N.W.2d 797 (1994). Failure to request an accomplice instruction...

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