Pirkel v. Burton

• Decision Date: 14 August 2020
• Docket Number: No. 19-1349,19-1349
• Citation: 970 F.3d 684
• Parties: Daniel Martin PIRKEL, Petitioner-Appellant, v. DeWayne BURTON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

970 F.3d 684

Daniel Martin PIRKEL, Petitioner-Appellant,

v.DeWayne BURTON, Warden, Respondent-Appellee.

No. 19-1349

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2020

Decided and Filed: August 14, 2020

ARGUED: Sundeep Iyer, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant. Scott Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Sundeep Iyer, Neal Kumar Katyal, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant. Scott Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Before: CLAY, ROGERS, and DONALD, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge.

Daniel Pirkel has long been seeking appellate representation to help him attack his no contest plea to a series of crimes for which he was convicted in 2008. He filed pro se appeals before the Michigan Court of Appeals and the Michigan Supreme Court, but, without the benefit of appellate counsel, he lost those appeals. Next, he filed a pro se 28 U.S.C. § 2254 habeas petition in federal court, challenging the Michigan courts’ procedure in allowing his appellate counsel to withdraw and failing to appoint replacement counsel. The district court did not appoint counsel and denied Pirkel relief. Now, with the benefit of counsel, Pirkel's claims are clear. At the outset, we note that the right to counsel is fundamental to our adversary system. Here, however, the Michigan trial court failed to conduct its own review of the merits of Pirkel's appeal before allowing Pirkel's appellate counsel to withdraw based on a conclusory statement that he could not find any issues to appeal. The Constitution requires more before a court allows counsel to withdraw. Thus, in denying Pirkel's claims on appeal, the Michigan courts unreasonably applied clearly established federal law announced by the Supreme Court. Accordingly, Pirkel is entitled to a new first-tier appeal in the Michigan courts that complies with the guarantees of the Constitution. We REVERSE and REMAND.

I.

The State of Michigan charged Pirkel with seventeen different crimes in just a few short months. Michigan charged Pirkel with criminal sexual misconduct and accosting a minor based on Pirkel's actions on May 25, 2007. Next, on June 5, 2007, Pirkel entered a supermarket in Three Rivers, Michigan, and grabbed the buttocks of a female employee. Employees then reported seeing Pirkel pull the fire alarm. Police quickly arrested Pirkel in the store's parking lot while he was trying to gain entry into his car. Police recovered a loaded rifle from the car and found that Pirkel was wearing boots that had been stolen from the store. Based on this incident, the State of Michigan charged Pirkel with carrying a concealed weapon, possessing a loaded firearm in a vehicle, misdemeanor retail fraud, and misdemeanor assault and battery.

On June 16, 2007, Pirkel stole a four-wheeler. After crashing the four-wheeler in the woods, Pirkel began fleeing, but officers were tracking him. Pirkel exchanged gunfire with the police. During this exchange, Pirkel was struck in the buttocks with a bullet. Pirkel then jumped into the water, and the police could see only his head. The officers, now in boats, approached Pirkel and told him to keep his hands above the water, but Pirkel would not and yelled, "Just shoot me. You're going to have to shoot me. Just kill me." At some point, Pirkel pulled out a knife. When Pirkel partially emerged from the water during the chase, an officer used his taser on Pirkel's back. After Pirkel started submerging again, the officer shut off the taser, but Pirkel came up again with his knife in hand. When Pirkel tried to climb into one of the boats, a different officer kicked Pirkel hard. The officer then used his taser several more times as Pirkel continued to swing the knife and refused to put it down. Eventually officers got the knife away from Pirkel. Pirkel continued to try to flee, and one of officers used mace on Pirkel. Pirkel continued to struggle and try to flee throughout the encounter, but eventually officers handcuffed him and transported him to the hospital for treatment for his wounds

.

According to the police report, officers Mirandized and interrogated Pirkel right after they arrested him. Pirkel told officers where he dropped his gun. He also stated that he knew he was shooting at police and was trying to get them to shoot back and kill him. He noted that he had recently tried to commit suicide and reiterated his hope that the police would kill him.

Based on this incident, the State of Michigan charged Pirkel with eleven crimes: two counts of assault with intent to murder, resisting and obstructing an officer causing serious impairment, receiving and concealing stolen property, four counts of assault with a dangerous weapon, resisting and obstructing an officer causing injury, fleeing and eluding a police officer, and possession of a firearm during the commission of a felony.

Plea Hearing

The Michigan trial court held a plea hearing on January 24, 2008. Pirkel initially expressed some reservations about entering his plea: "I understand [the plea deal] but I don't know, I'm just reading stuff right now for the first I've ever read it—or known about it, but I—I feel like I'm getting my arm twisted to do it." The court then allowed Pirkel roughly ninety minutes to read police reports regarding his most recent slate of charges. When the court reconvened, Pirkel indicated that he had an opportunity to review those documents.

Pirkel pleaded no contest to all of the charges except the criminal sexual conduct and accosting a minor charges, which the government agreed to drop in exchange for Pirkel's plea. The trial court explained that it would treat Pirkel's no contest plea the same as a guilty plea. Pirkel stated that he understood the plea agreement. The court listed the charges and the maximum punishments for each. Pirkel then pleaded no contest to each charge. Pirkel stated that no one had threatened him or promised him anything in exchange for his plea, and he agreed that he was pleading no contest of his own free will. With agreement from Pirkel's counsel, the government then made an offer of proof on the charges against Pirkel. While the government made a full offer of proof on the earlier charges against Pirkel, it simply admitted the police reports for the later charges without objection. Finally, the court accepted Pirkel's no contest plea.

Sentencing

Prior to sentencing, Pirkel sent a letter to the trial court expressing concerns with his representation and his plea. He wrote:

I am under duress by my own counsel and I feel from the start that they have not been working for me. I feel like a lamb being led to the slaughter. I am in no way comfortable with anything pertaining to my case such as my plea, my lawyers, and my mental state. All in all with the above court proceedings I feel it has been a lie and I don't trust my lawyers. I asked Mr. Bush to postpone my sentencing because I didn't understand all of my charges plus I feel that I was pressured to take an unfair plea that I did not want to take. It is my hopes that you will find in this letter reason enough to help me in any way you see fit.

At the beginning of the sentencing hearing, Pirkel's attorney also asked the court to adjourn sentencing because he and Pirkel had only recently received the pre-sentence report. In response to the letter, the trial court stated that it had reviewed a tape of Pirkel's plea hearing and would not allow Pirkel to withdraw his plea. The court refused to appoint new attorneys, but it gave Pirkel and his attorneys about forty minutes to talk through the pre-sentence report before reconvening. The court then heard arguments from both sides, including Pirkel himself, on the length of the sentence. Before announcing the sentence, the court stated that "[i]n reading the reports, it—it made sense to me, your behavior, when it came out that you were trying to get them to kill you and not intending to—to kill them necessarily, although you shot in their direction." The court then sentenced Pirkel to 20 to 50 years in prison on the two counts of assault with intent to murder and to two years in prison for a firearms offense, run consecutively to the main sentence. The court ran the rest of the sentences concurrently to the sentence for the assault with intent to murder.

Appeal and Withdrawal

Pirkel requested and was appointed appellate counsel: John Ujlaky. In a letter, Ujlaky advised Pirkel that he "found no issue of even colorable merit to pursue on [Pirkel's] behalf," finding that Pirkel's plea was freely, knowingly, and voluntarily given without any issues in the scoring of the sentencing guidelines. Ujlaky asked Pirkel to agree to terminate Ujlaky's appointment as appellate counsel. Although we do not have Pirkel's letter in return, Pirkel appears to have responded to Ujlaky's letter raising several issues, including withdrawing his plea and ineffective assistance of counsel. Ujlaky responded, "[Y]ou totally lost me about withdrawing your plea, to wit: ... ineffective assistance of counsel." Ujlaky then filed a motion to withdraw with the trial court. In the motion, Ujlaky stated that he had made a full review of the transcripts and other pertinent documents in the case; that he had regularly corresponded with Pirkel; that he communicated with Pirkel's trial counsel, Howard Bush; and that he had provided advice to Pirkel. Ujlaky declared that he "was unable to find, ascertain, or locate any meritorious issue, a colorable issue, or an arguably valid issue to pursue." He noted that "Pirkel's No Contest Plea and Sentence were both procedurally and substantively correct and proper."

The trial judge, who had also presided over Pirkel's plea and sentencing, held a hearing on Ujlaky's motion on June 30, 2008. Ujlaky reiterated the same things that he said in his motion. The court then asked if Pirkel had anything to add, and Pirkel...