Guilmette v. Howes

• Decision Date: 21 October 2010
• Docket Number: No. 08-2256.,08-2256.
• Citation: 624 F.3d 286
• Parties: Bruce GUILMETTE, Petitioner-Appellee, v. Carol R. HOWES, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

624 F.3d 286

Bruce GUILMETTE, Petitioner-Appellee,

v.Carol R. HOWES, Warden, Respondent-Appellant.

No. 08-2256.

United States Court of Appeals,Sixth Circuit.

Argued: June 9, 2010.

Decided and Filed: Oct. 21, 2010.

COPYRIGHT MATERIAL OMITTED.

ARGUED: Brad H. Beaver, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Kimberly Thomas, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellee. ON BRIEF: Brad H. Beaver, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Kimberly Thomas, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellee.

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which MARTIN, MOORE, COLE, CLAY, GIBBONS, SUTTON, COOK, KETHLEDGE, and WHITE, JJ., joined, and in which BATCHELDER, C.J., BOGGS, GILMAN, and McKEAGUE, JJ., joined with respect to Parts I and II only. BOGGS, J. (pp. 293-98), delivered a separate opinion concurring in part and dissenting in part, in which BATCHELDER, C.J., GILMAN, and McKEAGUE, JJ., joined. GRIFFIN, J. (pp. 298-309), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

A Michigan jury found petitioner Bruce Guilmette guilty of first-degree home invasion. On state collateral review, Guilmette argued-for the first time-that his trial counsel had been constitutionally ineffective. The state trial court denied Guilmette's claim on the merits, and both the state intermediate and supreme courts denied leave to appeal in brief and substantively identical orders. A federal district court granted Guilmette a conditional writ of habeas corpus after determining that Guilmette's trial attorneys were constitutionally ineffective. The state now appeals, arguing that Guilmette procedurally defaulted his ineffective-assistance claim by failing to raise it during his direct appeal, and that the state supreme court's brief order enforced that procedural rule. However, because the state supreme court's order was unexplained (by which we mean the text of the order fails to disclose the reason for the judgment) and the last reasoned state court decision was on the merits, the state courts never enforced a procedural bar to Guilmette's claim. The state is therefore not entitled to appellate relief.

I.

At approximately noon on January 7, 1999, a man forced open the locked front door of Joan McCormick's home while McCormick sat in her living room. McCormick fell down during her attempt to flee into the interior of her house, and when she looked back at the door after her fall, the man was already fleeing the scene. McCormick identified the petitioner, Bruce Guilmette, out of two photographic lineups during the following weeks. The state prosecuted Guilmette for first-degree home invasion. At trial, the prosecution introduced two photographs that were purportedly of the perpetrator's footprints in the snow around McCormick's home: one taken by a police officer who had investigated the crime, and a second taken by McCormick after the police officer had departed. McCormick's photograph was of a footprint on the threshold of her door, and the state relied upon that photograph at trial to establish the “entry” element of the alleged crime. See Mich. Comp. Laws § 750.110a(2). Rejecting Guilmette's arguments that McCormick had misidentified him, a jury found Guilmette guilty of first-degree home invasion. For a more detailed recitation of the facts of the alleged home invasion and Guilmette's trial, see Guilmette v. Howes, 591 F.3d 505 (6th Cir.2010) (vacated pursuant to March 12, 2010 order granting rehearing en banc).

After an unsuccessful direct appeal, Guilmette filed for state post-conviction review, arguing for the first time that his trial counsel had been ineffective for failing to investigate differences between the two photographed footprints. Guilmette argued that this error was prejudicial because the photographs were the only proof of entry. Guilmette also argued that his appellate counsel had been ineffective for failing to argue ineffective assistance of trial counsel. The state trial court denied these claims on the merits, determining that Guilmette's trial counsel had not been ineffective because focusing on identification at the expense of arguing the elements of the crime was a reasonable trial strategy, and that his appellate counsel had not been ineffective for failing to raise a meritless claim of ineffective assistance of trial counsel. In the trial court's words, Guilmette “failed to meet his burden in demonstrating that either his trial counsel's or appellate counsel's performance fell below an objective standard of reasonableness.” Both the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal, issuing substantively identical orders stating that Guilmette had failed “to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D).”

Guilmette petitioned for habeas relief based on the two ineffective-assistance claims that he raised on state collateral review. The district court granted a conditional habeas writ, finding that Guilmette's trial counsel were constitutionally ineffective because they failed to investigate the differences between the two photographs. Guilmette v. Howes, 577 F.Supp.2d 904, 910-16 (E.D.Mich.2008). The district court determined that Guilmette had not procedurally defaulted this claim, citing Abela v. Martin, 380 F.3d 915, 922-24 (6th Cir.2004), for the proposition that some orders citing Rule 6.508(D) do not invoke a procedural bar. Guilmette, 577 F.Supp.2d at 909-10.

The state appealed, arguing that Guilmette procedurally defaulted his ineffective-assistance claim and that he failed to establish cause and prejudice for that default. A panel of this court reversed the district court's judgment. Guilmette, 591 F.3d 505. Over a dissent, the panel held that, given the precise procedural history presented by this case, precedent compelled the conclusion that Michigan had applied a procedural bar to Guilmette's claims for relief, and thus that Guilmette's claims were procedurally defaulted. Id. at 508-11. We granted en banc review to determine whether a brief Michigan appellate court order citing Rule 6.508(D) is an explained order from which federal courts can determine whether the basis of the state court decision was procedural rather than merits-based.

II.

Brief orders citing Michigan Court Rule 6.508(D) are not explained orders invoking a procedural bar. We reach this result because holdings from the Michigan courts indicate that the language used by such summary orders can refer to the petitioner's failure to establish entitlement to relief either on the merits or procedurally, and such ambiguity demands a determination that the orders are not explained. A habeas petitioner procedurally defaults a claim if:

(1) the petitioner fails to comply with a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an adequate and independent state ground for denying review of a federal constitutional claim; and (4) the petitioner cannot show cause and prejudice excusing the default.

Tolliver v. Sheets, 594 F.3d 900, 928 n. 11 (6th Cir.2010) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986)). The second part of this rule requires federal courts to determine the basis on which state courts rejected a given claim, and this court has struggled with this interpretive task in the context of Michigan court orders citing Rule 6.508(D). See, e.g., Alexander v. Smith, 311 Fed.Appx. 875, 882 (6th Cir.2009) (discussing how an “apparent conflict within this circuit's precedent” has “[c]omplicat[ed] matters” with respect to this question). Rule 6.508(D) provides:

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

(1) seeks relief from a judgment of conviction and sentence that still is subject to challenge on [direct] appeal ...;

(2) alleges grounds for relief which were decided against the defendant in a prior appeal or proceeding under this subchapter, unless the defendant establishes that a retroactive change in the law has undermined the prior decision;

(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 ..., and

(b) actual prejudice....

....

The court may waive the “good cause” requirement of subrule (D)(3)(a) if it concludes that there is a significant possibility that the defendant is innocent of the crime.

In some cases, the context of a brief order citing Rule 6.508(D) clearly indicates that the state appellate court is affirming the lower court's determination that a petitioner's claims are procedurally defaulted. See, e.g., Ivory v. Jackson, 509 F.3d 284, 292-93 (6th Cir.2007) (“Never, at any point in Ivory's postconviction proceedings, did a Michigan court address the merits of his ineffective-assistance-of-trial-counsel claim.”). Our earliest case directly addressing whether brief orders citing Rule 6.508(D) are explained orders was such a case. See Simpson v. Jones, 238 F.3d 399, 403, 408 (6th Cir.2000).

But Michigan cases also reveal that some orders citing Rule 6.508(D) deny post-conviction relief on the merits. In People v. Jackson, the Michigan Supreme Court held that Rule 6.508(D) applied to convictions handed down before the effective date of that rule. 465 Mich. 390, 633 N.W.2d 825, 826 (2001). The petitioner in Jackson, Michael T. Jackson, was sixteen at the time of his offense, and a juvenile court had waived jurisdiction over his case before he had been tried as an adult. Id. at 827...