People v. Reed

• Decision Date: 25 July 1995
• Docket Number: No. 96936,No. 9,96936,9
• Citation: 449 Mich. 375,535 N.W.2d 496
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert REED, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 496

535 N.W.2d 496

449 Mich. 375

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert REED, Defendant-Appellant.

No. 96936.

Calendar No. 9.

Supreme Court of Michigan.

Argued Nov. 1, 1994.

Decided July 25, 1995.

[449 Mich. 378] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training, and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for the people.

Elizabeth L. Jacobs, for defendant.

Sandra Girard for amicus curiae, Prison Legal Services of Michigan, Inc.

Joan E. Morgan for amicus curiae, Criminal Defense Attorneys of Michigan.

Barbara R. Levine for amicus curiae, Michigan Appellate Assigned Counsel System.

OPINION

BOYLE, Justice.

"Cause" for excusing procedural default is established by proving ineffective assistance of appellate counsel, pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or by showing that some external factor prevented counsel from previously raising the issue. MCR 6.508 protects unremedied manifest injustice, ¹ preserves professional independence, conserves judicial resources, and enhances the finality of judgments.

Six justices agree that in postconviction proceedings under MCR 6.508(D)(3)(a), ² "good cause for failing to raise issues [of ineffective assistance of counsel] on the first appeal" ³ is not defined as failure to comply with standard 9 of the Minimum Standards for Indigent Criminal Appellate Defense Services. The Minimum Standards ⁴ require appellate counsel to raise all claims of "arguable legal merit," and a failure to raise an arguable claim does not establish the proper test for assessing whether a defendant has established "cause" excusing a procedural default in postconviction proceedings. The definition proposed is inconsistent with the purpose and language of the Rules of Criminal Procedure, with federal authority defining ineffective assistance of trial and appellate counsel as cause, and with our holding in People v. Pickens, 446 Mich. 298, 521 N.W.2d 797 (1994).

However, we disagree with Justice Cavanagh that "federal habeas corpus jurisprudence should play only a limited role in defining the standards imposed by MCR 6.508." Op. at 509. As Justice Cavanagh notes, federal habeas corpus review and MCR 6.508 share the paramount goal of promoting finality of judgments. Op. at 510. Moreover, in both the federal and state systems, the constitution guarantees only a fair trial, not a perfect one. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); People v. Bahoda, 448 Mich. 261, 292-293, n. 64, 531 N.W.2d 659 (1995). While it is true that the state can create its own procedural rules, we presumably chose to model MCR 6.508 after the federal habeas corpus statute because it serves important state interests. As the Supreme Court has observed, the exhaustion doctrine, ⁵ promotes the legitimate interest of this state in enhancing the accuracy, efficiency, and reliability of our own criminal process by assessing and resolving appellate issues shortly after trial. Murray v. Carrier, supra.

We also believe that Justice Cavanagh has failed to advance a persuasive reason why the habeas corpus standard articulated in Gray v. Greer, 800 F.2d 644 (CA7, 1985), not passed upon by the Court of Appeals, should be adopted here. As the Court now assumes for itself the role of adding judicial gloss to the terms "significant and obvious," the approach marks at least a partial repudiation of the limiting purpose of MCR 6.508. The burdens on trial courts passing on postconviction claims will be clearly expanded to the extent of demonstrating compliance with Gray and, in fact, may be further expanded. The observation that the strategic decisions of counsel will be respected "if such discretion was actually exercised," invites the argument that a People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973) hearing with appellate counsel must be held to determine that question. ⁶ Op. at 511.

The Rules of Criminal Procedure "are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." MCR 6.002. The specific purpose for creating the postconviction procedure was to provide finality of judgments affirmed after one full and fair appeal and to end repetitious motions for new trials. MCR 6.508(D) is identical to the federal standards for habeas corpus relief under 28 U.S.C. § 2255. Postconviction relief is provided for the extraordinary case in which a conviction constitutes a miscarriage of justice.

Requiring appellate lawyers to function at a level of objectively reasonable performance encourages lawyers to accept assignments and to diligently serve their clients, as well as promoting the goal of finality in judgments. Where a procedural default is the result of ineffective assistance of counsel, the Sixth Amendment mandates that the state bear the risk of the constitutionality deficient performance. However, where the state has afforded a full and fair opportunity to reliably determine guilt and an appeal of right, assisted by constitutionally adequate counsel at public expense, all institutional and public interests support the conclusion that proceedings should come to an end unless the defendant's conviction constituted a miscarriage of justice.

When ineffective assistance of counsel, based on a failure to raise viable issues, is the justification for excusing procedural default, the movant must establish ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, supra, or that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, supra at 488, 106 S.Ct. at 2645. MCR 6.508 is based on federal precedent and Michigan's standard for ineffective assistance of trial counsel is the same as the federal standard. People v. Pickens, supra. "Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial." Murray at 492, 106 S.Ct. at 2647-2648.

Defining ineffective assistance of appellate counsel as the failure to raise any arguable claim would impair the independence of the profession. And because failure to raise all colorable claims will expose appellate lawyers to malpractice suits and grievances, the approach would inevitably result in flooding the appellate courts with nonmeritorious claims on direct appeal. Moreover, because in hindsight, the number of claims of arguable legal merit is virtually limitless, it is predictable that lawyers either will decline representation that will expose them to grievances and civil sanctions, or will suggest that funding units should underwrite the cost of malpractice insurance.

The ultimate effect would profoundly destabilize the finality of judgments beyond what occurred under the previous procedure, and exponentially increase the burdens on appellate counsel, the Court of Appeals, and trial courts presiding in collateral matters. Such an approach is neither commanded by the constitution nor justified by sound public policy.

I

The commentary to MCR 6.508 states that the "cause and prejudice" standard is based on the United States Supreme Court decisions in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In Wainwright, the United States Supreme Court held that the "[r]espondent's failure to make timely objection under the Florida contemporaneous-objection rule to the admission of his inculpatory statements, absent a showing of cause for the noncompliance and some showing of actual prejudice, bars federal habeas corpus review of his Miranda ⁷ claim." Id. at 72, 97 S.Ct. at 2499 (reporter's syllabus).

While Wainwright adopted the cause and prejudice standard, it left "open for resolution in future decisions the precise definition...." Id. at 87, 97 S.Ct. at 2507. Similarly, in Frady, supra, the Court applied the cause and prejudice standard but found "it unnecessary to determine whether Frady ha[d] shown cause" and "refrained from giving 'precise content' to the term 'prejudice'...." Frady at 168, 102 S.Ct. at 1594, 1595, citing Wainwright, supra at 91, 97 S.Ct. at 2508. Thus, while laying the groundwork for the cause and prejudice standard, Wainwright and Frady offered limited guidance regarding the proper definition of either term.

However, in Strickland, the United States Supreme Court clearly held that to receive collateral relief on the basis of ineffective assistance of trial counsel, the defendant must meet a two-pronged test of both cause and prejudice. In addressing the "cause" prong of the test, Strickland held that the defendant must show that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. In evaluating whether counsel was ineffective, "[j]udicial scrutiny of counsel's performance must be highly deferential," and the court should restrain from second-guessing trial strategy. Id. at 689, 104 S.Ct. at 2065. "There are countless ways to provide effective assistance," and "[e]ven the best criminal defense attorneys would not defend a particular client in the same way." Id. Thus, with regard to defaults that occur at trial, error or inadvertence is not cause for procedural default in postconviction proceedings. Murray, supra at 487, 106 S.Ct. at 2644.

Strickland dealt with allegations of ineffective assistance of trial counsel as cause (and prejudice) for procedural defaults in collateral proceedings. In Murray, the Supreme Court also definitively held that a failure to assert a claim on appeal...