Benoit v. Bock

• Decision Date: 09 January 2003
• Docket Number: No. 00-10191-BC.,00-10191-BC.
• Citation: 237 F.Supp.2d 804
• Parties: William BENOIT, Petitioner, v. Barbara BOCK, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

Page 804

237 F.Supp.2d 804

William BENOIT, Petitioner, v. Barbara BOCK, Respondent.

No. 00-10191-BC.

United States District Court, E.D. Michigan, Northern Division.

January 9, 2003.

William Benoit, Lapeer, MI, pro se.

Debra M. Gagliardi, Vincent J. Leone, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Barbara Bock.

OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

LAWSON, District Judge.

Before the Court is the pro se petition of William Benoit, presently an inmate at the Thumb Correctional Facility in Lapeer, Michigan, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner alleges that his appellate counsel was ineffective when he permitted the petitioner's appeal of right to be involuntarily dismissed, apparently because of the petitioner's inability to pay for counsel's services on appeal. The Court agrees that the petitioner was denied his Sixth Amendment right to counsel on appeal, and that the failure of the Michigan state courts to grant the petitioner relief was contrary to clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1). Accordingly, the Court will conditionally grant the petition for a writ of habeas corpus, and direct the respondent to release the petitioner from his unlawful custody unless the Michigan Court of Appeals reinstates the petitioner's appeal of right.

I.

On July 17, 1996, a circuit court jury in Hillsdale County, Michigan found the petitioner guilty of two counts of second-degree murder, Mich. Comp. Laws § 750.317, and two counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b (felony firearm). The trial court sentenced the petitioner to concurrent terms of twenty-five to fifty years in prison for the murder convictions and consecutive terms of two years in prison for the felony firearm convictions.

On September 17, 1996, the petitioner filed a claim of appeal through retained counsel. On February 19, 1997, the Michigan Court of Appeals notified the petitioner's attorney that he had failed to perfect the appeal by not taking steps to ensure the timely filing of the transcript. The court of appeals warned counsel that the case was in jeopardy of involuntary dismissal or other action unless the appeal was perfected within twenty-one days.

Appellate counsel subsequently moved to withdraw as counsel on the ground that the petitioner had not abided by the terms of the retainer agreement. According to appellate counsel, the petitioner had neither paid his fees nor provided funds for the transcripts needed to perfect the appeal. The Michigan Court of Appeals notified appellate counsel of defects in his motion to withdraw, and on May 1, 1997 struck the motion for failure to conform to Michigan Court Rule 7.211. On May 19, 1997, the court of appeals dismissed the appeal "for want of prosecution" because the petitioner "failed to ensure the timely filing of the transcript." People v. Benoit, No. 197942 (Mich.Ct.App. May 19, 1997).

On July 14, 1997, Terrence R. Flanagan, the Deputy Administrator of the Michigan Assigned Counsel System, wrote the Clerk of the Michigan Court of Appeals seeking to have the petitioner's appeal of right reinstated, but was informed by letter that the Court of Appeals had no jurisdiction to consider the request because more than twenty-one days had passed since the involuntary dismissal was filed. On July 29, 1997, the State Appellate Defender Office ("SADO") was appointed by the trial court to represent the petitioner. The SADO attorney filed a motion for new trial, which the trial court denied. SADO then filed an application for delayed leave to appeal alleging that: (1) the petitioner was denied the effective assistance of counsel during the appeal of right because his attorney allowed his appeal to be dismissed for nonpayment of fees; (2) the petitioner's second-degree murder conviction was against the great weight of the evidence; (3) the petitioner was deprived of a fair trial because the jurors were exposed to extraneous information; and (4) the prosecutor improperly vouched for the petitioner's guilt by introducing the co-defendant's guilty plea. The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." People v. Benoit, No. 211570 (Mich.Ct.App. Nov. 5, 1998).

The petitioner applied for leave to appeal in the Michigan Supreme Court, alleging that: (1) the murder conviction was against the great weight of the evidence; (2) the jurors were exposed to extraneous information; and (3) the prosecutor improperly introduced a co-defendant's guilty plea. The supreme court denied review. See People v. Benoit, No. 113500 (Mich. Sup.Ct. July 8, 1999).

On May 31, 2000, the petitioner filed his habeas corpus petition, which asserts one ground for relief:

MR. BENOIT'S CLAIM OF APPEAL SHOULD BE REINSTATED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF ORIGINAL RETAINED APPELLATE COUNSEL WHERE THAT ATTORNEY ALLOWED HIS APPEAL TO BE DISMISSED SIMPLY BECAUSE HE WAS NOT PAID.

The respondent argues in an answer to the petition filed through counsel that the petitioner's claim lacks merit because defense counsel's actions did not deprive the petitioner of appellate review of his claims. In her answer, the respondent also asserts, inexplicably and incorrectly, that "Benoit was afforded an adequate opportunity to present his claims fairly in the context of the State's appellate process through a subsequent appeal granted by leave of Court." Ans. to Pet. at 5. This Court has no record of an appeal on the merits being entertained by the state courts. Leave to file a delayed appeal was denied, according to the orders in the record before this Court, and there has never been any reasoned decision issued by a Michigan appellate court on any of the petitioner's appellate issues, including his claim of ineffective assistance of appellate counsel.

II.

A threshold question is whether the petitioner has exhausted his state remedies prior to filing his habeas corpus petition. Although the respondent has not raised failure to exhaust state remedies as a defense, the defense is not waived "unless the State, through counsel, expressly waives the requirement." 28 U.S.C. § 2254(b)(3); Rockwell v. Yukins, 217 F.3d 421, 423-24 (6th Cir.2000). Moreover, considerations of comity and federalism require the Court "to review the exhaustion issue sua sponte." Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.1987) (citing Parker v. Rose, 728 F.2d 392, 394 (6th Cir. 1984)).

The doctrine of exhaustion of state remedies requires state prisoners to fairly present their claims to the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the State's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 839-40, 845, 119 S.Ct. 1728. This means that state prisoners in Michigan must raise their habeas claims in the Michigan Court of Appeals and in the Michigan Supreme Court. Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D.Mich.2002).

The petitioner raised his habeas claim in the Michigan Court of Appeals, but not in the Michigan Supreme Court. Although ineffective assistance of counsel can excuse these procedural errors, the ineffective assistance of counsel claim itself must still, in turn, have been presented to the state courts. See Edwards v. Carpenter, 529 U.S. 446, 452, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

The failure to exhaust is an obstacle to reviewing the merits of a claim, however, only when the state still provides a remedy to exhaust. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). The petitioner in this case no longer has an effective state remedy; he cannot present his claim in the Michigan Supreme Court because the fifty-six day deadline for appealing the court of appeals decision has expired. See M.C.R. 7.302(C)(3). The petitioner could begin the appellate process anew by filing a motion for relief from judgment. See Mich. Ct. R. 6.502. However, the Michigan Court of Appeals has already ruled perfunctorily that the petitioner's claim lacks merit, and he is not asserting a retroactive change in the law. Thus, the petitioner is barred from pursuing an otherwise available state court remedy, Mich. Ct. R. 6.508(D)(2), and his claim must be deemed exhausted. Gray v. Netherland, 518 U.S. 152, 161, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996).

The evaporation of state procedural remedies caused by the passage of time will not completely excuse a prisoner's failure to avail himself of them, however. Generally speaking, federal courts may review a prisoner's procedurally defaulted claims on the merits only if he shows cause for not raising his claims at all levels of state court review and prejudice, or that he is actually innocent of the crimes for which he was convicted. Hannah v. Conley, 49 F.3d 1193, 1195-96 & 1196 n. 3 (6th Cir.1995) (citing Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). See also Mohn v. Bock, 208 F.Supp.2d 796, 801 (E.D.Mich. 2002).

Here, however, the Court need not enforce the procedural default because the respondent had not raised it in her answer to the habeas petition. With the previously-discussed exception of exhaustion of state remedies, the Sixth Circuit strongly discourages the sua sponte invocation of procedural affirmative defenses that were not raised by the respondent. See Scott v. Collins, 286 F.3d 923, 928-29 (6th Cir. 2002). Although the affirmative defense of...