Stokes v. Wolfenbarger

Filing 34

MEMORANDUM OPINION and ORDER Conditionally Granting the Petition for Writ of Habeas Corpus, Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL STOKES,
Petitioner,

Civil No. 2:07-CV-11341
HONORABLE ARTHUR J. TARNOW

v.
DEBRA SCUTT,
Respondent,
________________________________/
OPINION AND ORDER CONDITIONALLY
GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS
Michael Stokes, (“Petitioner”), presently confined at the Parnall Correctional
Facility in Jackson, Michigan, has filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. 1 In his application, filed pro se, petitioner challenged his convictions
for assault with intent to do great bodily harm less than murder, M.C.L.A. 750.84; and
being an habitual offender, M.C.L.A. 769.12. This Court finds that petitioner did not
voluntarily, or knowingly and intelligently waive his Sixth Amendment right to be
represented by counsel at his trial. Because this is a structural error, reversal of
petitioner’s conviction is automatic. The petition for writ of habeas corpus is therefore
CONDITIONALLY GRANTED.

1

When petitioner originally filed his petition for writ of habeas corpus, he was
incarcerated at the Macomb Correctional Facility, but has since been transferred to the
Parnall Correctional Facility. The only proper respondent in a habeas case is the
habeas petitioner’s custodian, which in the case of an incarcerated habeas petitioner
would be the warden of the facility where the petitioner is incarcerated. See Edwards
Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28 foll. U.S.C. §
2254. Therefore, the Court substitutes Warden Debra Scutt in the caption.

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
I. Background
Petitioner was originally charged with assault with intent to commit murder.
Following a jury trial in the Wayne County Circuit Court, in which petitioner represented
himself, petitioner was convicted of the lesser included offense of assault with intent to
do great bodily harm less than murder.
On the first morning of trial, defense counsel informed the trial court judge that
when he had visited petitioner in jail a few days prior to trial, petitioner gave him a list of
questions that he wanted counsel to ask the witnesses, as well as a proposed closing
argument. Counsel informed the judge that petitioner was upset because counsel told
him that he would not be limited by petitioner’s proposed questions or arguments.
Counsel informed the judge that petitioner either wanted a new lawyer or wanted to
represent himself. Counsel indicated:
MR. HARRIS [defense counsel]: Your Honor, a few days ago I met with Mr.
Stokes. And he submitted to me several pages of questions which he has
asked me to direct to the witnesses in this matter. He’s also written out a
closing argument, which he has requested that I give.
I told Mr. Stokes that while I appreciated his assistance, I was not going to
be limited to the questions he propounded or the argument that he prepared.
I told that again to Mr. Stokes today. And Mr. Stokes is upset. He thinks I
am not properly representing him. And he wants either another lawyer or he
wishes to represent himself.
(Trial Tr., 10/12/2004, pp. 4-5).
After hearing some comments by the prosecutor, the trial judge indicated that: “In
terms of appointing a new attorney, we’re not going to do that at this point.” (Id. at p. 6).

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
The judge asked petitioner if he understood that he had a right to an attorney. In response,
the following exchange occurred between the judge and petitioner:
MR. STOKES: But, your Honor, I talked to Mr. Harris a couple of days ago,
maybe about a week ago. And, you know, we discussed the---- I discussed
the case. He didn’t come and discuss anything. He didn’t have any plan, no
game plan. And I had put together a game plan for us. And, you know, he
said, well, I want to look this over. I said, well, this is what I want you to do.
And clearly I did it correctly. I was a paralegal. I didn’t throw a bunch of junk
at him. I wanted him to ask the questions that I asked him to ask and close
with my argument, you know.
I feel that, you know, he hasn’t been representing me properly thus far,
because they bound me over when they had the argument, the prosecution
has the argument about if the crime committed, and I committed it.
Well, the witness clearly stated that he turned around and assaulted me. He
turned around and assaulted me. My lawyer, he didn’t challenge this. And
he just let it slide.
THE COURT: Mr. Stokes, you have to understand Mr. Harris didn’t make that
determination. That was the judge below that made that decision.
MR. STOKES; Yeah, but he didn’t----he didn’t object.
anything, no ammunition.

He didn’t have

THE COURT: Well, he could jump up and object all he wanted to, but the
judge is going to make the decision the judge is going to make. And he can’t
jump up. But again the---MR. STOKES: But, you know, I did my research as a layman. And I think if
I came up with, you know, come to that conclusion, then a person like him
would come to one, you know. I just feel like I wasn’t having, you know, him
to represent me the way I want him to represent me. Just ask the questions
that I ask him to ask and close in the argument that I choose to ask him to
close in.
You know, I’m going to pay the consequences. I think I got a right. You
know, I think that it’s to my disadvantage to have him go and do and say
what he want to say.

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
You know, he told me this morning that I don’t think you should take a jury
trial. I think you should take a bench trial. You know, and that---- I think
that’s ridiculous.
Why would I, you know, take it at this stage? You know, all the way down to
the last moment and change for a jury trial to a bench trial.
THE COURT: All right. Here is what---MR. STOKES: And he say that he don’t think that, you know, that I would be
found---- I’d be innocent, you know. I mean, well, I don’t expect him to---THE COURT: Mr. Stokes, here is what we’re going to do. The Court is going
to look into the matter. All right?
MR. STOKES: Okay.
THE COURT: And you need to give me a few moments to do that. And I’m
going to look at a few things back in chambers on the matter. And then I will
bring you back out. And I do want to question you about your attorney
position.
All right?
MR. STOKES: Would you please look at the questions that---- and the
argument that I just asked him.
THE COURT: All right. We’ll do that.
MR. STOKES; To show you that I’m in my right mind.
(Id., pp. 6-9).
The judge asked the prosecutor and defense counsel to come into chambers with
him to review the questions that petitioner wanted to have asked. Significantly, however,
petitioner was not brought into chambers to be present for these discussions. (Id. at pp. 910). There was no record made of the discussion.

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
After a recess, the judge again advised petitioner that he had a right to counsel.
However, when petitioner again indicated his dissatisfaction with counsel’s decision not to
ask any of his questions, the following exchange occurred:
THE COURT: Do you want a lawyer to represent you?
MR. STOKES: Mr. Harris, he refused to ask the questions that I asked him
to ask.
THE COURT: All right.
Do you want to represent yourself I understand?
MR. STOKES: I’m saying that he refused to ask those questions.
Mr. Harris?
THE COURT: Mr. Harris isn’t going to be asking the questions that you
propounded.
MR. STOKES: Yeah, yes, sir. I’d like to represent myself.
THE COURT: You’ve been appointed a lawyer. That lawyer in his or her
discretion makes certain trial strategy calls. And this isn’t the flavor of the
week, that you can pick your lawyer. You have a very good lawyer.
MR. STOKES: I’ll represent myself, sir.
(Id. at pp. 10-11).
The judge proceeded to advise petitioner of the dangers of self-representation. (Id.
at pp. 11-18). However, when asked again whether he wanted to represent himself,
petitioner informed the judge:
MR. STOKES: Well, I don’t feel I have a choice, your Honor. I don’t feel----I
mean, it’s like all that on the line that you’re telling me that I’m facing. And
I’m just going to---

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
THE COURT: Well, we have clients that come in here each and every day
with their attorneys. And the attorneys handle those cases.
MR. STOKES; Well, we didn’t have the time to talk. And at no point did he
bring any defense. He didn’t suggest any defense. I had to do the research
and do the work.
(Id. at p. 19). (Emphasis added).
The judge did not elaborate as to why counsel would not ask the questions that
petitioner wanted asked, nor did the judge ever make a record of what was discussed
between himself, the prosecutor, and defense counsel in chambers concerning
petitioner’s complaints about his counsel’s performance. The judge never made any
findings regarding petitioner’s complaints about counsel. The judge did permit
petitioner’s attorney to remain as standby counsel and actually allowed him to conduct
the voir dire. (Id. at pp. 15-16, 21).
The complainant testified that he had been drinking alcohol and consuming drugs
with several people including petitioner on the day of the incident. (Id. at p. 107). The
complainant and petitioner went to the store and bought additional alcoholic beverages,
which they took to a park and drank. (Id. at p. 108). After finishing the beverages, the
complainant decided to leave. As he was leaving, petitioner asked him for money. (Id.
at p. 110). The complainant informed petitioner that he did not have any more money
and turned to leave. As he did so, the complainant felt a pinch in his back and petitioner
grabbing him. (Id. at p. 112). The complainant turned towards petitioner and the men
began to fight. As the complainant separated away from petitioner, he noticed that he
was bleeding. (Id. at p. 116). Petitioner fled the scene, while the complainant walked to

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
a nearby hospital, where he collapsed. The complainant was stabbed numerous times
in the back, chest, and abdomen. The complainant also suffered defensive wounds to
his arms and wrists. (Tr. 10/13,2004, p. 66).
Petitioner’s conviction was affirmed on appeal. People v. Stokes, No. 258928
(Mich.Ct.App. April 25, 2006); lv. den. 476 Mich. 868; 720 N.W. 2d 314 (2006).
On March 7, 2007, petitioner filed a petition for writ of habeas corpus, in
which he sought habeas relief on the following four grounds:
I. There was constitutionally insufficient evidence admitted at trial to justify
consideration of assault with intent to murder charges.
II. Petitioner’s trial was rendered unfair by the omission of a necessary jury
instruction regarding the reliability of the victim’s testimony.
III. Petitioner’s trial was rendered unfair by the omission of a necessary
jury instruction regarding self-defense.
IV. There was constitutionally insufficient evidence admitted at trial to
support Petitioner’s conviction.
Respondent filed an answer to the petition for writ of habeas corpus, in which he
argued that petitioner’s first, third, and fourth claims were without merit and that
petitioner’s second claim was procedurally defaulted.
In reviewing the trial court record to determine the validity of petitioner’s claims,
as well as the affirmative defenses raised by respondent, this Court became aware of a
fact that was not brought to its attention by either litigant, or noted by the Michigan Court
of Appeals in their opinion, namely, that petitioner represented himself at trial, after
expressing dissatisfaction on the first day of trial with his trial counsel’s representation.

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
The issue concerning counsel was raised for the first time in the Michigan
Supreme Court on leave to appeal after the Court of Appeals affirmed on the other
grounds. People v Stokes, 476 Mich 868; 720 N.W. 2d 314 (2006). This Court entered
an opinion and order holding the petition for writ of habeas corpus in abeyance to permit
petitioner to return to the state courts to exhaust additional claims, specifically his claim
that he did not knowingly and intelligently waive his right to counsel. The Court also
administratively closed the case. Stokes v. Wolfenbarger, No. 2008 WL 495371 (E.D.
Mich. February 20, 2008).
Petitioner filed a post-conviction motion for relief from judgment with the trial
court, which was denied. People v. Stokes, No. 04-07072-01 (Third Circuit Court, May
20, 2008). The Michigan appellate courts denied petitioner leave to appeal. People v.
Stokes, No. 286305 (Mich.Ct.App. January 22, 2009); lv. den. 485 Mich. 883; 772 N.W.
2d 55 (2009). The Supreme Court order noted the waiver of counsel issue was raised
in the first application for leave to appeal.
On November 9, 2009, this Court granted petitioner’s motion to reopen the
habeas petition and also permitted him to amend his petition for writ of habeas corpus
to add a claim that he did not knowingly and intelligently waive his Sixth Amendment
right to trial counsel.
Petitioner now seeks habeas relief on the following five grounds:
I. There was constitutionally insufficient evidence admitted at trial to justify
consideration of assault with intent to murder charges.
II. Petitioner’s trial was rendered unfair by the omission of a necessary jury
instruction regarding the reliability of the victim’s testimony.

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
III. Petitioner’s trial was rendered unfair by the omission of a necessary jury
instruction regarding self-defense.
IV. There was constitutionally insufficient evidence admitted at trial to support
Petitioner’s conviction.
V. Petitioner did not knowingly and intelligently waive his Sixth Amendment
right to counsel.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 40506 (2000). An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.”
Id. at 409. A federal habeas court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
clearly established federal law erroneously or incorrectly." Id. at 410-11. “[A] state
court’s determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 131 S.Ct.770, 786 (2011)(citing Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
III. Discussion
Petitioner did not knowingly and intelligently waive his Sixth Amendment
right to counsel.
Petitioner contends that he did not knowingly and intelligently waive his Sixth
Amendment right to counsel because he was forced to represent himself at trial when
the trial court refused at the outset of trial to consider petitioner’s request for a new
attorney or to review and respond to petitioner’s complaints about his trial counsel.
Respondent contends that petitioner’s waiver of counsel claim is procedurally
defaulted, because he raised it for the first time in his post-conviction motion for relief
from judgment and failed to show cause for failing to raise this issue in his appeal of
right, as well as prejudice, as required by M.C.R. 6.508(D)(3). Michigan Court Rule
6.508(D)(3) provides that a court may not grant relief to a defendant if the motion for
relief from judgment alleges grounds for relief which could have been raised on direct
appeal, absent a showing of good cause for the failure to raise such grounds previously
and actual prejudice resulting therefrom.
Under the procedural default doctrine, a federal habeas court will not review a
question of federal law if the state court’s decision rests on a substantive or procedural

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
state law ground that is independent of the federal question and is adequate to support
the judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). However, “a
procedural default does not bar consideration of a federal claim on either direct or
habeas review unless the last state court rendering a judgment in the case ‘clearly and
expressly’ states that its judgment rests on the procedural bar.” Harris v. Reed, 489
U.S. 255, 263 (1989). The Sixth Circuit has observed that “there must be
unambiguous state-court reliance on a procedural default for it to block” a federal court
from reviewing a state court decision. Bowling v. Parker, 344 F. 3d 487, 498 (6th Cir.
2003)(citing Gall v. Parker, 231 F.3d 265, 321 (6th Cir. 2000)).
In the present case, the trial court, after deciding the merits of petitioner’s claim,
invoked the provisions of M.C.R. 6.508(D)(3) in denying petitioner relief. The Michigan
Court of Appeals rejected the petitioner’s post-conviction appeal in a form order on the
ground that “the defendant has failed to meet the burden of establishing entitlement to
relief under MCR 6.508(D).” The Michigan Supreme Court, however, in lieu of
employing their standard form order denial, issued the following order in denying
petitioner’s post-conviction appeal:
On order of the Court, the application for leave to appeal the January 22,
2009 order of the Court of Appeals is considered, and it is DENIED,
because the defendant has failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D). We write further only to
comment on the unusual posture of this case.
Defendant was convicted of assault with intent to commit great bodily harm,
MCL 750.84, after representing himself at trial. He was given a prison
sentence of 10 to 20 years as a fourth-offense habitual offender, MCL
769.12. Defendant raised five issues in his appeal by right to the Court of
Appeals, which court affirmed his conviction. Defendant then raised six

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
issues in his appeal to this Court. For the new issue, defendant stated: “I
feel that I was denied assistance of counsel for my defense at trial.”
Defendant elaborated upon this, contending that he had been compelled to
represent himself because the judge made it clear that he either had to do
this or else retain his current counsel. He argued that his request to
represent himself was not unequivocal as required by People v. Anderson,
398 Mich. 361, 247 N.W.2d 857 (1976). This Court denied defendant's
application.2
Defendant then filed a petition for a writ of habeas corpus in the United
States District Court for the Eastern District of Michigan. Defendant raised
several issues in this petition, but did not raise the ‘waiver of counsel’ issue.
Nevertheless, the district court raised the issue sua sponte. Stokes v.
Wolfenbarger, 2008 WL 495371, 2008 U.S. Dist LEXIS 12300 (2008),
asserting that defendant “has never presented any claim to the state courts
which challenges the validity of the waiver of his right to counsel or that his
decision to represent himself may have been forced upon him.” The district
court then decided to hold defendant’s petition in abeyance so that
defendant could return to state court and exhaust the ‘waiver of counsel’
claim. The district court also ordered that defendant could refile an
amended petition raising any newly exhausted claims within 60 days of the
conclusion of the state post-conviction proceedings.
Defendant then filed a motion in the state circuit court for relief from
judgment that raised the waiver of counsel issue. The circuit court denied
relief stating,
There are three main requirements with which a court must
comply in this context. First, the defendant's requests must be
unequivocal. Second, the defendant must assert his right to
self-representation knowingly, intelligently, and voluntarily. In
assuring a knowing and voluntary waiver, the trial court must
make defendant aware of the dangers and disadvantages of
self-representation so that the record will establish that he
knows what he is doing and that his choice is made with eyes
open. [People v. Ahumada, 222 Mich.App. 612, 564 N.W.2d
188 (1997) ]. Third, the court must establish that the
defendant will not unduly disrupt the court while acting as his
own counsel. Id. In addition, MCR 6.005 requires the trial
court to offer the assistance of an attorney and to advise the
2

This is number V here. (FN added).

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
defendant about the possible punishment for the charged
offense. Id.
Here, the record indicates that defendant's request was
unequivocal; the court asked defendant if he wished to
represent himself and he answered in the affirmative. The
defendant further indicated that he had prior work experience
as a paralegal and as a result of that experience was capable
of preparing his own trial strategy. Further the court advised
defendant of his continued right to counsel and that the
counsel assigned to his case was one of the “best in the
building.” The court also advised defendant of the maximum
penalty of the crime for which he was charged. A review of
the record indicates that the court properly determined that
defendant’s desire to represent himself was fully knowing and
intelligent. As such, there is no violation of defendant’s Sixth
amendment right to counsel, and his claim in this regard is
without merit. 3
Defendant then filed an appeal in the Court of Appeals raising the ‘waiver of
counsel’ issue, which court denied defendant’s application on the grounds
that defendant had “failed to meet the burden of establishing entitlement to
relief under MCR 6.508(D).” Defendant now seeks leave to appeal in this
Court raising the ‘waiver of counsel’ issue and we deny leave to appeal for
the same reason.
As set forth above, the district court was apparently under the mistaken
belief that defendant had not raised his ‘waiver of counsel’ issue in the state
courts. In any event, having reviewed the written ‘waiver of counsel’ form
signed by defendant on October 12, 2004, and the 24 pages of transcript
that consisted of two separate extended discussions with defendant over the
course of two days, we agree with the trial court that defendant’s waiver was
unequivocal. Even if this issue was being considered by this Court in
the first instance, we would still deny relief from judgment because
defendant has not established actual prejudice. MCR 6.508(D)(3)(b).
In this latter regard, we note that even though defendant represented

3

The Michigan Supreme Court did not indent the portion of this opinion. This
Court indented the portion of the Michigan Supreme Court decision that quoted the trial
court order so as to delineate the latter court’s opinion and order from the remainder of
the Michigan Supreme Court’s opinion and order.

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
himself at trial, his former counsel conducted voir dire and otherwise
assisted him as standby counsel throughout the trial.
People v. Stokes, 485 Mich. at 883 (emphasis added).
The Michigan Supreme Court’s order was not an unexplained form order, but
was obviously a reasoned opinion, therefore, this is the opinion that this Court must
look to in determining whether petitioner’s claim is procedurally defaulted. In reviewing
this order, it is clear that the Michigan Supreme Court did not clearly and expressly
invoke the provisions of M.C.R. 6.508(D)(3) to deny petitioner relief. Although the
Michigan Supreme Court indicated that they were denying petitioner post-conviction
relief pursuant to M.C.R. 6.508(D), they did not indicate under what subsection that
they were denying petitioner’s post-conviction appeal. Significantly, the Michigan
Supreme Court’s opinion did not mention petitioner’s failure to raise his waiver of
counsel claim on his direct appeal as their rationale for rejecting his post-conviction
claim. In fact, it appears from the opinion that the Michigan Supreme Court indicated
that petitioner had already raised his waiver of counsel claim on his direct appeal, when
he raised the claim for the first time in his application for leave to appeal before the
Michigan Supreme Court after the Michigan Court of Appeals had affirmed his
conviction on his appeal of right. In the middle of the opinion, the Michigan Supreme
Court indicated that this Court, in holding the petition in abeyance so that petitioner
could return to state court to exhaust his Sixth Amendment claim, “was apparently
under the mistaken belief that defendant had not raised his ‘waiver of counsel’ issue in
the state courts. Stokes, 485 Mich. at 883. The Michigan Supreme Court subsequently

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
indicated that: “Even if this issue was being considered by this Court in the first
instance, they would still deny relief from judgment because petitioner had not
established actual prejudice, as required by M.C.R. 6.508(D)(3)(b). Id. This language
suggests that the Michigan Supreme Court did not deny petitioner’s waiver of counsel
claim based on his failure to raise this claim on his direct appeal, but because he
already had raised the waiver of counsel claim previously on his direct appeal before
the Michigan Supreme Court.
Although not expressly invoked by the Michigan Supreme Court in denying
petitioner’s post-conviction appeal, this Court notes that M.C.R. 6.508(D)(2) indicates
that a court in Michigan should not grant post-conviction relief if the post-conviction
motion “alleges grounds for relief which were decided against the defendant in a prior
appeal or proceeding under this subchapter, unless the defendant establishes that a
retroactive change in the law has undermined the prior decision[;]” M.C.R. 6.508(D)(2)
is essentially a res judicata or law of the case rule, which prevents the relitigation of
claims in a post-conviction motion which have already been decided adversely against
a defendant in a prior appeal. Because the language of the Michigan Supreme Court’s
opinion strongly suggests that they rejected petitioner’s waiver of counsel because it
had already been raised before them on direct appeal, the Michigan Supreme Court’s
reliance on M.C.R. 6.508(D)(2) based on res judicata would not bar habeas review of
petitioner’s claim on the merits. See Hicks v. Straub, 377 F. 3d 538, 558, n. 17 (6th Cir.
2004).

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Moreover, even if this claim could have been dismissed pursuant to M.C.R.
6.508(D)(3), on the ground that petitioner had failed to properly exhaust his waiver of
counsel claim in that he raised it only for the first time on his direct appeal before the
Michigan Supreme Court, 4 the Michigan Supreme Court’s failure to clearly and
expressly invoke the cause and prejudice provision of M.C.R. 6.508(D)(3) to deny
petitioner’s claim precludes a finding that petitioner’s claim is procedurally defaulted
pursuant to this court rule. See Skinner v. McLemore, 425 Fed. Appx. 491, 495-96 (6th
Cir. 2011)(claims not procedurally defaulted where the last reasoned state court
judgment erroneously invoked M.C.R. 6.508(D)(2) to deny claims that should have
been denied pursuant to M.C.R. 6.508(D)(3)).
Moreover, in addition to the fact that the Michigan Supreme Court did not invoke
the provision of M.C.R. 6.508(D)(3) to deny petitioner’s post-conviction appeal, the
Michigan Supreme Court discussed the merits of petitioner’s claim at length. The
Michigan Supreme Court did not unambiguously invoke the cause and prejudice
provision of M.C.R. 6.508(D)(3) to deny petitioner’s post-conviction appeal, but instead
chose to address the merits of the claim at length and also to mention that petitioner
had already raised his claim on direct appeal and that this was not the first instance
that they were reviewing the claim. Under the circumstances, the last reasoned state
court judgment did not clearly and expressly invoke the cause and prejudice provisions

4

Raising a claim for the first time before the state courts on discretionary review
does not amount to a “fair presentation” of the claim to the state courts for exhaustion
purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989).

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
of M.C.R. 6.508(D)(3) to deny petitioner’s claim. Petitioner’s claim is not procedurally
defaulted. The Court will proceed to review the merits of petitioner’s claim.
The United States Supreme Court has held that a waiver of the Sixth
Amendment right to counsel is valid only when it reflects “an intentional relinquishment
or abandonment of a known right or privilege.” Patterson v. Illinois, 487 U.S. 285, 292
(1988)(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In other words, the
accused must “know what he is doing” so that “his choice is made with eyes open.”
Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942). A waiver of a right
to a lawyer will not be lightly presumed and a trial judge must indulge every reasonable
presumption against a waiver. Brewer v. Williams, 430 U.S. 387, 404 (1977); Boyd v.
Dutton, 405 U.S. 1, 2 (1972); Johnson v. Zerbst, 304 U.S. at 464. Doubts about
whether there has been a waiver must be resolved in favor of the Sixth Amendment.
See Michigan v. Jackson, 475 U.S. 625, 633 (1986); overruled on other grds by
Montejo v. Louisiana, 129 S. Ct. 2079 (2009).
The U.S. Supreme Court has clearly established that the complete denial of
counsel during a critical stage of a judicial proceeding mandates a presumption of
prejudice. Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000); Penson v. Ohio, 488 U.S.
75, 88 (1988); United States v. Cronic, 466 U.S. 648, 659 (1984). The existence of
certain structural defects in a trial, such as the deprivation of the right to counsel,
requires automatic reversal of the conviction because it infects the entire trial process.
Brecht v. Abrahamson, 507 U.S. 619, 629-630 (1993).

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
A trial court's determination as to the propriety of a defendant’s waiver of his
Sixth Amendment right to counsel should appear on the record. See Fowler v. Collins,
253 F.3d 244, 249 (6th Cir. 2001)(citing Johnson, 304 U.S. at 465).

Additionally, a

court, in order to decide if a waiver of counsel was valid, must look to see if the
defendant made the choice with open eyes, or proceeded pro se because he felt he
had no other choice. See United States v. Calabro, 467 F.2d 973, 985 (2nd Cir.1972).
Where a criminal defendant decides to represent himself after complaining that his trial
counsel is not prepared to go to trial, as was the case here, the defendant’s waiver of
counsel is not made knowingly and intelligently, with “eyes wide open”, because “the
choice between unprepared counsel and self-representation is no choice at all.” James
v. Brigano, 470 F. 3d 636, 644 (6th Cir. 2006).
In the present case, petitioner did not clearly and unequivocally waive his right to
counsel and choose to represent himself at trial. Although both the trial court and the
Michigan Supreme Court found that petitioner clearly and unequivocally waived his
right to counsel, both courts ignored the fact that petitioner appeared before the trial
court on the morning of trial and expressed dissatisfaction with his lawyer’s
representation. At the outset, before even hearing petitioner’s complaints, the trial
judge indicated that: “In terms of appointing a new attorney, we’re not going to do that
[appoint a new one] at this point.” (Tr. 10/12/2004, p. 6). When the judge asked
petitioner if he understood that he had a right to an attorney, petitioner told the judge
that his defense counsel hadn’t discussed anything when he visited petitioner in jail.
Petitioner further complained that counsel did not appear to have a “game plan”, which

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
was the reason that petitioner had prepared some questions for him to ask. Petitioner
further complained that his counsel did not challenge the bindover decision. Petitioner
was also upset that his counsel had tried on the morning of trial to get him to waive his
jury and proceed with a bench trial. The judge agreed to review the questions that
petitioner wanted to have asked, but did so in chambers only with the prosecutor and
defense counsel. Petitioner was not present. (Id. at pp. 7-10). There is no record of
this discussion.
After a recess, the judge again advised petitioner that he had a right to counsel.
However, when petitioner again indicated his dissatisfaction with counsel’s decision not
to ask any of the questions suggested by petitioner, the judge informed petitioner that
counsel would not ask petitioner’s questions. The judge did not give any reason why
counsel would not ask these questions, nor did the judge ever make a record of what
was discussed between himself, the prosecutor, and defense counsel in chambers
concerning petitioner’s complaints about his counsel’s performance. Instead, the judge
scolded petitioner that this was not “the flavor of the week, that you can pick your
lawyer.”
Only at this point did petitioner indicate that he would represent himself. (Id., at
p. 11). The judge proceeded to advise petitioner of the dangers of self-representation.
(Id., pp. 11-18). However, when asked again whether he wanted to represent himself,
petitioner informed the judge :“Well, I feel that I don’t have a choice, your Honor.”
Petitioner again informed the judge that he and his counsel never had any time to talk
and at no point did counsel discuss any defenses with him. (Id., at p. 19)(emphasis

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
added). The judge never made any findings regarding petitioner’s complaints about
counsel.
When a criminal defendant moves for replacement counsel and is told that he
must choose between his current counsel and proceeding pro se, his waiver of right to
counsel may not be voluntary, depending on the circumstances. See U.S. v. Patterson,
140 F.3d 767, 776 (8th Cir. 1998); See also Gilbert v. Lockhart, 930 F.2d 1356, 1360
(8th Cir. 1991). Moreover, a waiver of counsel cannot be inferred from a defendant’s
desire to dismiss his counsel, when he or she states the reasons for wanting counsel
dismissed and expresses wish for legal representation. See Sawicki v. Johnson, 475
F. 2d 183, 184-85 (6th Cir. 1973)(defendant who, in notice of dismissal, complained of
inadequate representation by appointed counsel and was advised, without
investigation, that other counsel would not be appointed, was entitled to federal habeas
corpus hearing on allegations of denial of representation). In particular, a defendant’s
waiver of the right to counsel may not be clear and unequivocal in situations like this
where the trial court indicates at the outset that it will not appoint new counsel and
merely advises the defendant about his desire and ability to represent himself. See
U.S. v. Jones, 452 F.3d 223, 230 (3rd Cir. 2006).
In the present case, the Michigan Supreme Court unreasonably applied clearly
established law in determining that petitioner had clearly and equivocally waived his
right to counsel. Petitioner’s waiver of counsel was not knowing and voluntary,

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
because the judge basically offered petitioner a “Hobson’s choice” 5 of either
proceeding to trial with an attorney whom petitioner felt was unprepared or with no
counsel at all. Gilbert, 930 F. 2d at 1360. Indeed, when asked by the trial judge again
whether he wanted to represent himself, petitioner informed the judge :“Well, I feel that
I don’t have a choice, your Honor.” Petitioner’s waiver of counsel was not made
voluntarily, or knowingly and intelligently, with “eyes wide open”, because “the choice
between unprepared counsel and self-representation is no choice at all.” James, 470 F.
3d at 644.
“When serious allegations are made by an indigent defendant that his appointed
counsel is not providing adequate representation, they should not be taken lightly.”
Sawicki, 475 F. 2d at 184. The trial judge never addressed petitioner’s complaints
about his attorney but simply stated that his attorney would not ask the questions that
petitioner wanted asked and further informed petitioner that he would not appoint new
counsel. In response to the trial judge’s question about whether he wanted to
represent himself, petitioner indicated that he had no other choice. Under the
circumstances of this case, the record does not support the Michigan Supreme Court’s
conclusion that petitioner “waived his right to counsel with eyes wide open.” Fowler,
253 F. 3d at 249; James, 470 F. 3d at 644.

5

Hobson's choice: [After Thomas Hobson (1544–1631), English liveryman, from
his requirement that customers take either the horse nearest the stable door or none.]
An apparently free choice that offers no actual alternative. Webster's II, New College
Dictionary 526 (1995).

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
In addition, petitioner’s case “unfortunately demonstrates the many fair-trial
problems that may arise from forced self-representation.” Young v. Lockhart, 892 F. 2d
1348, 1352 (8th Cir. 1989). Although the Michigan Court of Appeals rejected
petitioner’s second claim that he raises in this petition on the ground that a cautionary
instruction was never requested, petitioner as a layperson may not have known that it
is the responsibility of counsel to ask the court to give certain instructions. Likewise,
petitioner may not have known that it was important for him to present evidence of selfdefense through his testimony or the testimony of other witnesses in order for an
instruction on self-defense to be given, rather than to merely argue in closing argument
that he had acted in self-defense.6
In light of the strong presumption against waiver of the constitutional right to
counsel, this Court finds that petitioner did not voluntarily, or knowingly and intelligently
waive his Sixth Amendment right to counsel. The decision of the Michigan state courts
is an unreasonable application of established Supreme Court precedent. Fowler, 253
F. 3d at 250. This Court concludes that petitioner was denied his Sixth Amendment
right to counsel when he was compelled to represent himself at trial after being
informed by the trial judge that he would not appoint substitute counsel after petitioner
had expressed dissatisfaction with his current counsel and without resolving petitioner’s
complaints about his counsel’s representation.

6

This Court is not ruling on these issues.

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Stokes v. Scutt, U.S.D.C. 07-CV-11341
The Court further finds that petitioner is entitled to the issuance of a conditional
writ of habeas corpus. The Court will therefore grant petitioner a writ of habeas corpus
conditioned upon the State of Michigan retrying him within 90 days of this Court’s
decision.
Because this Court’s conclusion that petitioner is entitled to habeas relief on his
claim involving the denial of counsel is dispositive of the petition, the Court considers it
unnecessary to review petitioner’s other claims and declines to do so. See Satterlee v.
Wolfenbarger, 374 F. Supp. 2d 562, 567 (E.D. Mich. 2005).
IV. ORDER
IT IS HEREBY ORDERED THAT PETITIONER’S APPLICATION FOR WRIT
OF HABEAS CORPUS IS CONDITIONALLY GRANTED. UNLESS THE STATE
TAKES ACTION TO AFFORD PETITIONER A NEW TRIAL WITH THE ASSISTANCE
OF COUNSEL WITHIN NINETY DAYS OF THE DATE OF THIS OPINION, HE MAY
APPLY FOR A WRIT ORDERING RESPONDENT TO RELEASE HIM FROM
CUSTODY FORTHWITH.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: November 4, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on November
4, 2011, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Secretary

23