Washington v. McQuiggin, 071113 FED6, 11-1856

Docket Nº:11-1856
Opinion Judge:OLIVER, District Judge.
Party Name:SYLVESTER WASHINGTON, Petitioner-Appellant, v. GREG MCQUIGGIN, Respondent-Appellee
Judge Panel:BEFORE: CLAY and COOK, Circuit Judges; and OLIVER, District Judge.
Case Date:July 11, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

SYLVESTER WASHINGTON, Petitioner-Appellant,


GREG MCQUIGGIN, Respondent-Appellee

No. 11-1856

United States Court of Appeals, Sixth Circuit

July 11, 2013



BEFORE: CLAY and COOK, Circuit Judges; and OLIVER, District Judge. [*]

OLIVER, District Judge.


Petitioner-Appellant Sylvester Washington appeals the district court's summary dismissal, with prejudice, of his 28 U.S.C. § 2254 petition for a writ of habeas corpus alleging both ineffective assistance of appellate counsel and an unconstitutional court order to pay a portion of his court-appointed attorney's fees. For the following reasons, we AFFIRM the district court's dismissal of Washington's ineffective assistance of counsel claim and DISMISS Washington's attorney's fees claim without prejudice for lack of subject matter jurisdiction.


A. Factual and Procedural Background

On March 21, 2007, after Washington pleaded guilty to one count of armed robbery and one count of domestic violence, the Jackson County, Michigan, Circuit Court sentenced him to consecutive prison terms of 285–360 months for the armed robbery count and 16–24 months for the domestic violence count. The court ordered Washington, who had been represented by a court-appointed attorney, to pay $944.00 in attorney's fees, $472.00 for each conviction.

Washington's court-appointed appellate counsel filed a notice of appeal on March 18, 2008, and raised two issues. First, his counsel argued that the sentencing court had improperly scored the armed robbery offense under Michigan's sentencing guidelines.1 Second, Washington's appellate counsel argued that the sentencing court had erred in ordering Washington to pay attorney's fees because it had not determined his ability to pay and because Washington was in fact indigent and could not pay the fees. The Michigan Court of Appeals rejected Washington's appeal on May 8, 2008; Washington filed a pro se appeal to the Michigan Supreme Court, which was denied on September 28, 2009.

Washington sought state collateral review and, again appearing pro se, filed a motion for relief from judgment on November 17, 2009. Washington argued that his sentence violated the Tanner rule (described in detail below) and that his appellate counsel was constitutionally ineffective for failing to raise the Tanner issue on direct appeal. As codified, the Tanner rule states, "[t]he court shall not impose a minimum sentence . . . that exceeds 2/3 of the statutory maximum sentence." Mich. Comp. Laws § 769.34(2)(b). Washington's armed robbery sentence (punishable by "imprisonment for life or any term of years") was 285–360 months' imprisonment; 285 is more than two thirds of 360—therefore, Washington argued, his sentence violated the Tanner rule.

The circuit court denied Washington's motion for relief from judgment. The Michigan Court of Appeals and Supreme Court both denied Washington leave to appeal the circuit court's ruling; the Michigan Supreme Court used its denial to affirm that the Tanner rule did not apply to offenses, like armed robbery, "punishable by imprisonment for life or any term of years."

On May 27, 2011, Washington filed a pro se habeas petition in the United States District Court for the Western District of Michigan. The court summarily dismissed the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and denied Washington a certificate of appealability. Washington appealed, and this court granted a certificate of appealability only in regard to Washington's claims that he was denied the effective assistance of appellate counsel and that he was unconstitutionally required to pay his court-appointed attorney's fees.

B. The Tanner Rule

The Tanner rule (also sometimes called the two-thirds rule) was first announced in People v. Tanner, 199 N.W.2d 202 (Mich. 1972), and later codified in Mich. Comp. Laws § 769.34(2)(b). Until 2004, courts had construed Tanner and its statutory analog to apply to all offenses except those for which "the only punishment prescribed is imprisonment for life or those providing for a mandatory minimum." People v. Shegog, 205 N.W.2d 278, 281 (Mich. Ct. App. 1972) (emphasis added); see also People v. Babcock, 666 N.W.2d 231, 255 n.7 (Mich. 2003). Whether the Tanner rule applied to a particular offense therefore depended on the wording of the relevant provision of the Michigan penal code; for example, Tanner did not apply to first degree murder, which "shall be punished by imprisonment for life, " Mich. Comp. Laws § 750.316(1), but did apply to armed robbery (Washington's offense), which is "punishable by imprisonment for life or any term of years, " § 750.529. People v. Reid, 642 N.W.2d 678 (Mich. 2002), and People v. Irving, 641 N.W.2d 858 (Mich. 2002), mark the terminus of this now-defunct case line, the last two cases where the Michigan Supreme Court applied the Tanner rule to offenses punishable by "life or any term of years."

The Michigan Supreme Court shifted course in 2004. In People v. Powe, 679 N.W.2d 67 (Mich. 2004), the court declared the Tanner rule inapplicable to offenses punishable by imprisonment for "life or any term of years"—which included armed robbery. The court reaffirmed this interpretation of the Tanner rule in People v. Drohan, 715 N.W.2d 778, 790 n.14 (Mich. 2006), 2and People v. Harper, 739 N.W.2d 523, 534 n.31 (Mich. 2007).3

However, the court appeared to reverse itself in People v. Floyd, 751 N.W.2d 34 (Mich. 2008), vacated by People v. Floyd (Floyd II), 804 N.W.2d 564, 564 (Mich. 2011). In Floyd, the court vacated a 62-year minimum sentence because it exceeded two-thirds of the...

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