Pickett v. Woods

Filing 8

ORDER DENYING 7 Motion for Reconsideration. Signed by District Judge Thomas L. Ludington. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ALLEN PICKETT, #474740,
Petitioner,
v.

Case No. 16-cv-10699
Honorable Thomas L. Ludington

JEFFREY WOODS,
Respondent.
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ORDER DENYING MOTION FOR RECONSIDERATION
On February 23, 2016, Petitioner Allen Pickett filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He alleged that he was denied his Sixth Amendment right to
counsel when he was forced to stand silent at arraignment, had a plea of not guilty entered on his
behalf, and was deprived representation of counsel during the arraignment. His habeas corpus
petition was denied and dismissed without prejudice on March 23, 2016 because he did not
exhaust his available remedies in state court. Pickett has moved for reconsideration of that
decision.
Pickett argues in his motion for reconsideration that the requirement to exhaust should be
waived because it would be futile for him to pursue state court remedies. His argument is
predicated on the Michigan Court of Appeals’ decision in People v. Green, 677 N.W.2d 363
(Mich. Ct. App. 2004) overruled on other grounds by People v. Anstey, 719 N.W.2d 579 (Mich.
2006). In Green, the Michigan Court of Appeals held that, with respect to defendant Green, the
arraignment was not a critical stage of the criminal proceedings such that the Sixth Amendment
required the presence of counsel. Id. at 370. Pickett believes that Green and similar Michigan

caselaw conflicts with the United States Supreme Court’s decision in Rothgery v. Gillespie Cty.,
Tex., 554 U.S. 191, 211 (2008), which, according to Pickett, held that criminal defendants are
entitled to representation at arraignment.
Pickett claims that the exhaustion requirement should be waived for his petition because
the Michigan state courts have made their position known on the right to counsel at arraignment.
Namely, Michigan state courts have decided that it is not available under the Sixth Amendment.
Such firm authority justifies waiver, Pickett argues, citing to Lucas v. People of State of Mich.,
420 F.2d 259, 262 (6th Cir. 1970).
But the law about the right to counsel during arraignment is far more nuanced than
Pickett recognizes in both Michigan and in the federal courts. First, in Rothgery, the Supreme
Court did not hold that criminal defendants are universally entitled to representation of counsel at
initial arraignment. Rothgery held that initial arraignment was the time at which the Sixth
Amendment right to counsel attaches. Rothgery, 554 U.S. at 213 (“[A] criminal defendant’s
initial appearance before a judicial officer, where he learns the charge against him and his liberty
is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment
of the Sixth Amendment right to counsel.”). Counsel is only necessary at critical stages of the
criminal prosecution. This is not necessarily initial arraignment, although it may be. Id. at 212
(“Thus, counsel must be appointed within a reasonable time after attachment to allow for
adequate representation at any critical stage before trial, as well as at trial itself.”). Rothgery did
not hold that arraignment is always a critical stage of a criminal prosecution that requires the
representation of counsel.

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Michigan courts are in accord. Decisions by Michigan courts following Rothgery have
held, consistent with Rothgery, that initial arraignment is the time at which the Sixth Amendment
right to counsel attaches but it is not a “critical stage” requiring counsel:
As noted in Rothgery, whether the right to counsel has attached is distinct from
whether a defendant has been denied his right to counsel at a critical stage in the
proceeding. Rothgery did not address whether an arraignment on the warrant is a
critical stage. In fact, the logical implication is that it is not. See id. at 212
(“[C]ounsel must be appointed within a reasonable time after attachment....”). In
short, this Court’s holding that the arraignment on the warrant proceeding is not a
critical stage is unaffected by Rothgery.
People v. Hurt, No. 301915, 2013 WL 2120275, at *5 (Mich. Ct. App. May 16, 2013) (citing
Green, 260 Mich. App at 399–400). Although Hurt speaks in broad categorical terms, the
Michigan Court of Appeals recognized that under certain circumstances arraignment may be a
critical stage (though in that case it was not). Id. (“Hurt did not waive any defenses and none of
his rights were compromised. Therefore, Hurt was not denied his Sixth Amendment right to
counsel.” (internal citation omitted).).
Thus, Pickett’s state court remedies are not futile. Whether he was entitled to counsel at
his arraignment is not a pure question of law over which Michigan state courts and federal courts
are intractably divided. It is a question that depends on the facts of his arraignment and whether
his arraignment implicated his rights in a manner that made it a “critical stage” of his
prosecution. The Michigan state courts are entirely competent, and well suited to making such a
determination in the first instance. Pickett’s motion will be denied.
Accordingly, it is ORDERED that Petitioner’s Motion for Reconsideration, ECF No. 7,
is DENIED.
Dated: April 22, 2016

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 22, 2016.
s/Amanda Chubb for Michael A. Sian
MICHAEL A. SIAN

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